2nd ELD Stakeholder Conference 'Evaluating the experience gained in

the ELD Implementation'

ELD state of affairs 2013 at EU level:

MS Reports and COM Study

MS reports 2013 – state of play

Reports on the "experience gained in the application of the Environmental Liability Directive" • 30 April 2013 • Basis for Commission report 2014 • 18 reports submitted (as per 11th June) • Annex VI ELD (mandatory and voluntary part) • Supplementary information pursuant to agreed

non-binding guidance

MS reports 2013 – number of cases

Number of ELD cases per Member State vary considerably from: • 85 annual cases • 10 annual cases, • 3 annual cases to • less than 1 annual case. Some Member States have up to date no ELD case

0102030405060708090

Number of ELD cases

MS reports 2013 - Categories of Damage and causal Activity

Preliminary information based on rough evaluation of 13 MS reports Category of damage: Classification of activity: Mostly Annex III.7. (use, storage of dangerous substances), followed by non-Annex III activities (fault-based), then Annex III.1 (IPPC/IED), III.6 (water abstraction/ impoundment and III.8 (transport of dangerous substances by road, rail, inland waterways, sea or air)

30

40

30 BiodiversityWaterLand

MS reports 2013 – Duration of Remediation; Judicial Review Cases

Length of remediation procedure: between 5 days and more than 3 years, average duration approximately more than 14 months Judicial review procedures: relatively few in terms of appeal procedures, but around one third of the cases go court (wide varieties between MS)

0

5

0 50

Months

MS reports 2013 – Costs of Remediation, Administrative Costs

Costs of prevention and remediation: Range between €2,950 and €2 million (€65.4 million?) Average: €300,000 (€4.6 million?) depending on large scale damage cases Administrative costs rarely mentioned, but insofar: 15 full-time equivalent staff years (1x), Annual €20000 at central and between €684000 and €2million at autonomous regional level (1x)

MS reports 2013 Financial Security (1)

Very varied picture: from "market too small for insurance" and "calculation of financial guarantees and development of instruments and markets difficult" or "currently no liability insurance due to insufficient practice" to "currently high costs and limited cover" in mandatory insurance and detailed rules and provisions with however at moment "unclear whether cover is sufficient" to …

MS reports 2013 Financial Security (2)

… "gradual establishment of elaborated mandatory financial security system" "emerging EIL market offering wide range of products" and "possibility of insuring against risks under the ELD, including also cover for compensatory remediation, limited though to a percentage of costs of primary and complementary remediation"

MS reports 2013 Other points

Activities to promote the implementation of the ELD: some MS report about wide ranging activities Application of thresholds determining the significance of damage: commonly regarded as difficult, some opinions: • preference for case-by-case assessment • poses problems for interpretation/application • threshold good because ELD-remediation

relatively onerous)

ELD Implementation Study 2012

Key results from legal part: procedural and substantive variations: Transposition of the ELD into national law did "not result in a level playing field but a patchwork of liability systems" due to procedural and substantive variations: • Legal framework character including reference to

national law • Transposition as stand-alone legislation or

incorporating into existing legislation

ELD Implementation Study 2012

Substantive variations: • Optional provisions in ELD (optional defences,

biodiversity scope) • Reference to national law (multi-party causation,

financial security) • General authorisation for more stringent

provisions (Article 193 TFEU, Article 16 ELD) • Application of national law concepts (standard of

liability, level of causation, secondary liability)

ELD Implementation Study 2012

Key results from legal part: "Severity threshold": "… misperception that the ELD applies only to the most severe instances of damage" Annex I ELD sets the determination criteria for the significance threshold of biodiversity damage: • natural recovery • smaller than natural fluctuations • specie's/habitat's capacity to recover within a short time,

etc.,

ELD Implementation Study 2012

Key results from empirical part – Strengths: • Effectiveness of ELD and its procedures: straightforward

process; stronger powers to fulfil responsibilities; allowing to deal parallel with several types of environmental damage

• Prevention of environmental damage: operators involved in implementation of preventive actions (e.g. risk assessments)

• Remediation of environmental damage: higher remediation standards

• Involvement of stakeholders: enhanced cooperation of different actors and stakeholders

•

ELD Implementation Study 2012

Key results from empirical part - Challenges: • Requirements under the ELD and conditions for application:

complexity of transposing legislation, difficulty to demonstrate that significance threshold is met, Annex III too broad/limited

• Expertise and knowledge: lack of experience and knowledge, lack of data to determine environmental damage or imminent threat

• Resources (human, financial) limited • Tools, such as guidance documents absent in many Member

States • Legislative environment: coexistence of several liability regimes in

one MS; more stringent pre-existing legislation; discrepancies or possible overlap between ELD and pre-existing legislation; lack of coordination between several related directives

ELD Implementation Study 2012

Recommendations to strengthen practical implementation of the ELD: • Organisation of workshops and conferences to increase

awareness of stakeholders; establishing networks of stakeholders

• Development of supporting tools: elaboration of guidance documents, national or EU registers of ELD cases, tools to promote purchase of insurance policies (GIS, leaflets etc.)

• Developing actions to improve expertise and knowledge of all stakeholders

• Promoting the development of databases for the collection of data on the quality of environmental sectors

ELD Implementation Study 2012

Need to address the following issues: • Widely varying liability systems, • Clashes between self-executing provisions and

determination of environmental damage, • Implementation of the correct threshold for biodiversity

damage, • Ensuring greater coordination between the ELD and other

related directives, • Relationship between ELD and Birds and Habitats

Directives, • Relationship to Annex III legislation (e.g. IPPC/IED) •

http://ec.europa.eu/environment/liability/index.htm E:mail: Hans.Lopatta@ec.europa.eu

• Member States’ reports by April 2013: • Annex VI ELD • Questionnaire useful? • Records of ELD cases

• Commission report by April 2014: • International instruments in Annexes IV and V (IMO,

Euratom), considering eventual studies by the IOPCF • GMOs: Nagoya-Kuala Lumpur Supplementary Protocol on

Liability and Redress under the Cartagena Protocol • Application of ELD to protected species/natural habitats • Instruments for incorporation into Annexes III, IV and V • Mandatory vs. voluntary security; financial security in

particular for large scale accidents (2010 ELD Report)

Thank you for your attention !