Sunday

17th Dec 2017

Member states vary in EU 'polluter pays' rules

  • Water pollution is included in the environmental liability directive, but some experts say there are too many loopholes (Photo: European Court of Auditors)

The polluter should pay, that is the simple principle underpinning the environmental liability directive.

But the legal text is riddled with loopholes and is not being implemented uniformly across the EU. This emerged at a hearing in the European Parliament on Tuesday (11 April).

Thank you for reading EUobserver!

Subscribe now for a 30 day free trial.

  1. €150 per year
  2. or €15 per month
  3. Cancel anytime

EUobserver is an independent, not-for-profit news organization that publishes daily news reports, analysis, and investigations from Brussels and the EU member states. We are an indispensable news source for anyone who wants to know what is going on in the EU.

We are mainly funded by advertising and subscription revenues. As advertising revenues are falling fast, we depend on subscription revenues to support our journalism.

For group, corporate or student subscriptions, please contact us. See also our full Terms of Use.

If you already have an account click here to login.

  • Hungarian MEP Javor: It is, "in some member states, cheaper to pollute the environment" than in others (Photo: European Commission)

The directive went into force thirteen years ago this month, and member states were required to transpose it into national law a decade ago. However, it was not until mid-2010 that all EU members had done so.

Moreover, the environmental liability directive (ELD) has left a lot of room for interpretation, said Sandra Cassotta, associate professor of international environmental law at Denmark's Aalborg University.

"The text of the ELD is a result of different compromises at political level, and the text of the ELD is very diplomatic," said Cassotta, who noted that the definition of what constitutes environmental damage is too narrow.

At the same time, the directive contains exceptions that "are weakening the environmental liability regime", she said.

Kristel de Smedt is also an expert on liability in environmental damage at Maastricht University.

At the hearing, she showed that there is also no uniformity in the requirements for companies to insure themselves against the possibility of paying for damaging the environment.

The directive says that EU governments "shall take measures to encourage the development of financial security instruments and markets by the appropriate economic and financial operators", but according to De Smedt, this is too vague.

“The ELD does not specify the kind and or intensity of the required encouragement,” said De Smedt.

"Eight member states did set up mandatory financial security schemes at national level, other member states preferred voluntary market approach."

A consequence of companies not being insured against having to pay for environmental clean-ups, means that taxpayers may end up footing the bill.

The lack of uniformity is hindering a level-playing field, said Green Hungarian MEP Benedek Javor. He noted that there is a "complete patchwork" in terms of insurance requirements.

“This makes [it], in some member states, cheaper to pollute the environment, because you don't have to pay the obligatory or mandatory environmental insurances, than in other member states and it raises some competition law problems for me," said Javor.

There was some discussion at the hearing as to whether a directly applicable regulation would have been better, instead of a directive, which needs to be transposed by member states.

Marco Piredda spoke on behalf of an industry group. He said that the directive should be "given more time", but also noted that "companies are in favour of greater harmonisation".

"A regulation is something that would make us happy because it would give us very clear rules," said Piredda.

Air quality

The bill only covers environmental damage to protected species, natural habitats, water, and land.

It does not include air pollution, as was found out the hard way by the members of the parliament's inquiry committee into the Dieselgate emissions scandal.

The committee had asked the EU commission whether the ELD could be used to make car manufacturers pay for the reduction in air quality that results from diesel cars emitting far beyond the EU limits.

The commission assessed the option, but found that it was not possible.

"Regrettably the analysis showed that the directive only covers damage to biodiversity, water and land, and not to air or human health," wrote the environment director-general, Daniel Calleja Crespo, to the parliament last year.

But despite Calleja's use of the word "regrettably", the commission has still made no attempt to change this.

After an evaluation as part of the commissions' Regulatory Fitness and Performance Programme (Refit), the EU's executive decided last year that the directive does not need to be changed.

"The Refit evaluation indicated that the environmental liability directive may be reaching only a small part of its potential to prevent environmental damage and remedy it when it occurs," said Liam Cashman, a senior legal expert at the commission's directorate-general for the environment.

Yet the commission decided that it would take a soft approach and adopt non-legislative measures to nudge member states towards making better use of the directive.

"The evaluation suggested that without changing the directive, several positive actions could be undertaken to improve how it is used," said the commission's Cashman.

After EUobserver asked if the commission would like to include air quality in the directive, Cashman chose to ignore the question.

He did later say that the commission does not "exclude the possibility that at some point we might consider it would be useful to propose changes to the directive".

MEP Javor said he wants air quality to be covered by the ELD, and called its omission "one of the major shortcomings".

"We are arguing for including air quality and air pollution into the scope of ELD, but that is not an easy issue. We experience quite strong resistance," said Javor, a member of the Greens, the sixth-largest group in the EU parliament.

Javor has written a draft opinion on behalf of the parliament's environment committee about the implementation of the directive.

Once adopted by his committee, the Javor text, like Tuesday's debate, would feed into the development of a resolution by the parliament's legal affairs committee.

That text would then go on to the plenary, although it's legal power would be non-binding.

Council and NGOs criticise EU environment proposal

Ministers from the 15 member states, and environmental NGOs, are concerned that a key clause added in the draft EU environmental liability proposal, would exempt polluters from the "polluter pays" principle if they comply with environmental permits.

EU to scrutinise environmental action

Modelled on the EU's economical monitoring mechanism, bi-annual reports should ensure that member states correctly implement the environmental acquis.

Aviation industry attacks mandatory 'polluter pays' principle

The aviation industry has reacted angrily to a fresh deal between the European Parliament and EU governments to make airlines a part of a pollution-reducing scheme from 2012, saying that policymakers have "completely disregarded the future" of the sector.

News in Brief

  1. EU adopts 'track-and-trace' tobacco system
  2. Luxembourg appeals Amazon tax decision
  3. EU leaders agree to open phase 2 of Brexit talks
  4. Juncker: May made 'big efforts' on Brexit
  5. Merkel took 'tough' line on Russia at EU summit
  6. EU leaders added line supporting 'two-state' solution
  7. EU leaders agree to 20 European Universities by 2024
  8. Belgian courts end legal proceedings against Puigdemont

Stakeholders' Highlights

  1. Dialogue PlatformThe Gülen Community: Who to Believe - Politicians or Actions?" by Thomas Michel
  2. Plastics Recyclers Europe65% plastics recycling rate attainable by 2025 new study shows
  3. European Heart NetworkCommissioner Andriukaitis' Address to EHN on the Occasion of Its 25th Anniversary
  4. ACCACFOs Risk Losing Relevance If They Do Not Embrace Technology
  5. UNICEFMake the Digital World Safer for Children & Increase Access for the Most Disadvantaged
  6. European Jewish CongressWelcomes Recognition of Jerusalem as the Capital of Israel and Calls on EU States to Follow Suit
  7. Mission of China to the EUChina and EU Boost Innovation Cooperation Under Horizon 2020
  8. European Gaming & Betting AssociationJuncker’s "Political" Commission Leaves Gambling Reforms to the Court
  9. AJC Transatlantic InstituteAJC Applauds U.S. Recognition of Jerusalem as Israel’s Capital City
  10. EU2017EEEU Telecom Ministers Reached an Agreement on the 5G Roadmap
  11. European Friends of ArmeniaEU-Armenia Relations in the CEPA Era: What's Next?
  12. Mission of China to the EU16+1 Cooperation Injects New Vigour Into China-EU Ties

Latest News

  1. Catalonia, Brexit, and Uber on EU agenda This WEEK
  2. Macron and Merkel take tough line on Poland
  3. Eurozone future needs structural reforms, EU leaders told
  4. Showdown EU vote on asylum looking likely for next June
  5. EU stresses unity as it launches next phase of Brexit talks
  6. Polish PM ready for EU sanctions scrap
  7. Dutchman to lead powerful euro working group
  8. EU mulls post-Brexit balance of euro and non-eurozone states

Stakeholders' Highlights

  1. EPSUEU Blacklist of Tax Havens Is a Sham
  2. EU2017EERole of Culture in Building Cohesive Societies in Europe
  3. ILGA EuropeCongratulations to Austria - Court Overturns Barriers to Equal Marriage
  4. Centre Maurits CoppietersCelebrating Diversity, Citizenship and the European Project With Fundació Josep Irla
  5. European Healthy Lifestyle AllianceUnderstanding the Social Consequences of Obesity
  6. Union for the MediterraneanMediterranean Countries Commit to Strengthening Women's Role in Region
  7. Bio-Based IndustriesRegistration for BBI JU Stakeholder Forum about to close. Last chance to register!
  8. European Heart NetworkThe Time Is Ripe for Simplified Front-Of-Pack Nutrition Labelling
  9. Counter BalanceNew EU External Investment Plan Risks Sidelining Development Objectives
  10. EU2017EEEAS Calls for Eastern Partnership Countries to Enter EU Market Through Estonia
  11. Dialogue PlatformThe Turkey I No Longer Know
  12. World Vision7 Million Children at Risk in the DRC: Donor Meeting to Focus on Saving More Lives