Between the Limits of Environmental Damage - comparative analysis - - PowerPoint PPT Presentation

Justice and Environment Justice and Environment

Between the Limits of Environmental Damage

• comparative analysis on national damage definitons and

severity thresholds

ELD Government Experts Meeting

Brussels, 3rd February 2014

Birgit Schmidhuber

Justice and Environment Justice and Environment

Scope of the Analysis

• Geographical coverage: Austria, Croatia, Estonia, Germany,

Hungary, Romania, Spain

• Assess differences in the notion of damage in a cross-country

approach

• Assess the notions of damage under ELD and existing national

regimes

• Identify weaknesses/uncertainties in ELD damage definitions

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Biodiversity Damages

• Transposed into national legislation without mentionable adaption of

damage definitions and severity thresholds

• Broad notion and unclear concepts complicate interpretation and practical

application

• No clear notion of which national liability regimes (if existent) are in

competition or to be complementarily applied when it comes to biodiversity damages

• Interpretation and consequently application seems to be easier in countries

where the ELD was transposed by amending the pre-existing national systems (e.g. Hungary)

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Biodiversity Damages

• Legal experts state that in order to be effective the ELD system shall not

derogate other liability provisions (cp. German subsidiarity clause)

• Inclusion of national biodiversity damages broadly applied (except most

parts of Austria and Germany)

• National liability systems embedded in national nature protection regime:

Depart from broader notion but indeed a rather different understanding of biodiversity damage than ELD does; Lack valuable components provided for by the ELD: e.g. no accidents covered, no concept of complementary and compensatory remediation, no PP and A2J

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Water Damages

• Definition of “waters” in transposing legislation is quite uniform
• ELD transposing legislation and national liability regimes for water damages

emanate from the same concept of “waters” – WFD and Water Acts

• Due to lack of adequate case law and respective case databases the

significance threshold for water damages and its application seems very unclear

• No harmonized approach how to interpret the significance thresholds for

water damages across the EU: Estonia would say only a change in the classification of waters fulfils the significance threshold, in Austria the threshold would be interpreted to be lower

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Water Damages

• Not justifiable that slow and gradual deteriorations do not fulfil criteria for

environmental damage – would not be in conformity with the ELD if at some point the threshold is reached or even exceeded

• Hungary: criteria for the evaluation of a “significant adverse effect” on surface waters

and separately for groundwater

• Advisable to have a set of clear criteria for the assessment of the significance of

water damages on EU level embedded in the ELD

• National liability regimes provide for no or very low thresholds – integration of

systems and low threshold criteria

• Protection of “all waters” or only “water bodies”

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Land Damages

• ELD significance threshold for land damages mostly undercut by

transposing legislation (Germany, Hungary, Croatia, AUT – Carinthia) or by some national liability provisions on soil damages (Austria, Estonia, Spain)

• National systems not very elaborated – missing EU legal framework on soil

protection does not improve this situation

• Concept of “land” and “soil” is confusing, clear regulation on protection of

soil missing

• Concept of environmental media itself (land/soil) is to be adapted and

clarified

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Land Damages

• ELD: central element is health risk and not deterioration of a natural

resource

• Criterion does not comply with the environmental damage concept
• Integrated approach for land damages – either on EU level or deduce from

national liability regimes on soil damages and their practice to be integrated into the ELD regime – could lead to high protection standards and unified perception of land damages all over the EU

• Clear criteria or limit values
• Polish model

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Interaction of Liability Systems

• Could be a major reason for good/bad functioning of ELD system in the

respective states

– Germany – subsidiarity clause – Estonia – ELA = lex specialis – Austria – further obligations remain unaffected?! – shall not derogate further liability provisions; PM: complementary and strengthening element, shall not be applied in an isolated way; – Hungary – integration of the ELD led to a clear legal framework; higher thresholds

• Art 16 ELD: does not clearly regulate interaction of regimes – preferably this

could be clarified to have legal certainty and respective guidelines not only for the application but also the transposition of the ELD for the MS

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Sources of Information

• Justice & Environment, Between the Limits of

Environmental Damage. Brno 2013: http://www.justiceandenvironment.org/_files/file/ 2013/ELD%20study%20on%20damage%202013. pdf

• BIOIS ELD Implementation Studies 2013:

http://eldimplement.biois.com/home

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Thank you for your attention!

Birgit Schmidhuber ÖKOBÜRO/Justice & Environment Neustiftgasse 36/3a A -1070 Vienna Tel.: +43-1/524 93 77-14 birgit.schmidhuber@oekobuero.at www.justiceandenvironment.org