MEP demands radical rethink on liability

Parliament's rapporteur rejects automatic strict liability, calls for link to firms' commitment

European firms should enjoy less legal liability for environmental damage if they keep externally audited "environmental accounts," a key member of the European Parliament said yesterday.

The proposal is contained in a report presented to the parliament's legal affairs committee by Dutch liberal Toine Manders. The document is effectively a first draft of the parliament's response to the environmental liability white paper published by the European Commission earlier this year (ENDS Daily 9 February).

Mr Manders' proposals are more industry-friendly than either the Commission's or this week's recommendations from the parliament's environment committee, which called for stronger rather than weaker controls to be introduced (ENDS Daily 12 September).

According to Mr Manders, firms should voluntarily record measures taken to prevent or reduce pollution and to comply with relevant environmental legislation. If independent audits showed the books were in order, only fault-based liability rules could be applied.

Firms that chose not to keep accounts could instead be held strictly liable - under which they could have to pay up without proof of negligence. Mr Manders says the EU's existing EMAS environment management scheme could be adapted to serve a future liability regime.

In contrast, the Commission has suggested applying strict liability to all "dangerous or potentially dangerous activities" regulated by EU law. Mr Manders criticises this approach as "vague and likely to cause problems in practice". He says another criterion must be found - "preferably one which has to do with the conduct of the company concerned." This will help encourage prevention rather than mitigation of environmental damage, he says.

Mr Manders' suggestions could spark a lively debate with parliament's environment committee, most of whose proposals he rejects. He says that insurance cover should not be mandatory, that a 20-year statute of limitations should be introduced, and that liability should apply retroactively only if pollution was "deliberate or due to gross negligence." He also advocates a cap on damages.

In a proposal certain to incense environmental NGOs, Mr Manders says national environmental authorities should have "exclusive powers" to pursue legal actions against alleged polluters. They would be able negotiate settlements with firms, while private individuals and interest groups would be denied direct legal recourse to judges. Both measures would prevent the legal system becoming "overburdened," he says.

Follow Up:
European Parliament legal affairs committee, tel: +32 2 284 2111, and the Manders report.

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