Commission publishes liability white paper

Future EU environmental clean-up regime "will not damage business," but includes biodiversity

A future EU regime imposing strict liability for environmental damage will not harm business competitiveness, environment commissioner Margot Wallström said today. Unveiling a long-awaited white paper on the subject, the commissioner said a directive to implement the scheme would be proposed in the second half of next year.

Ms Wallström said the liability regime would "not disproportionately affect" the commercial sector, adding that, unlike the system in force in the USA, it would not have retroactive effect. This is in marked contrast to current proposals on manufacturer responsibility for car recycling (ENDS Daily 3 February).

The liability regime would seek to exact compensation from those responsible for damage caused by accidents such as the recent Erika oil spill and the Doñana mine disaster of 1998. In a move that will disappoint industry groups, the Commission says liability will also be introduced for damage to biodiversity - though only if this occurs in wildlife sites in the projected Natura 2000 network, which will cover some 10% of the EU's territory (ENDS Daily 9 March 1999).

According to the white paper, all "dangerous or potentially dangerous" activities regulated by EU law will be subject to the liability regime. This will include use of agricultural pesticides and some instances of genetically modified crop cultivation, according to Commission officials. More generally, all processes discharging emissions of hazardous substances will be covered by the regime. Non-dangerous activities affecting Natura 2000 sites will also be covered.

In the event of damage to the environment, health or biodiversity in Natura 2000 sites, "operators" will be strictly liable for the costs of cleaning up the pollution - that is, they will have to pay whether or not they were at fault. The term "operators" will be defined for each activity, and could include several parties. In a case similar to the Erika spill, for example, the shipping company and the owners of both the tanker and the cargo might have to share the clean-up costs.

In an important caveat, however, only "significant" damage to biodiversity will have to be remedied, and contaminated sites will have to cleaned up only to the extent that they are "fit for actual use". Also, a cost-benefit analysis will be required and should ensure that the costs imposed are "reasonable". The requirement for plaintiffs to prove that they have suffered damage will be "alleviated," according to the Commission, but this "burden of proof" will not be reversed entirely onto potential culprits. Mandatory insurance will not be required for those undertaking activities covered by the regime.

MEPs in the European Parliament's Green/EFA group today panned the white paper, saying it offered too many loopholes and that crucial questions remained "very vague". The failure to systematically reverse the burden of proof was a "major drawback," they said. Environmental coalition EEB said the paper had been watered down too much from previous drafts and that the insistence on strict liability was the "only strong pillar" left in it.

Follow Up:
European Commission, tel: +32 2 299 1111. The white paper had yet to be posted on the Europa web site by ENDS Daily's publication deadline.

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