Legal integration of the ELD transposition in the national - - PowerPoint PPT Presentation

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Legal integration of the ELD transposition in the national frameworks

Birgit Schmidhuber 11th June 2013 2nd ELD STAKEHOLDER CONFERENCE – BRUSSELS 'Evaluating the experience gained in the ELD Implementation'

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Outline

• Conditions/Regulatory framework on EU and national

level

• Types of ELD integration
• Application of Pre-existing national legislation
• Outcome for ELD application

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Regulatory framework on EU level

“A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods” (Art 288 TFEU)

 discretion is left to MS as to how the directive is to be implemented.

“This Directive shall not prevent Member States from maintaining or adopting more stringent provisions in relation to the prevention and remedying of environmental damage, including the identification of additional activities to be subject to the prevention and remediation requirements of this Directive and the identification of additional responsible parties.“ (Art 16/1 2004/35/CE)  ELD does not mean to replace national liability regimes but to complement them.

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Conditions on national level

Federal states – Centralized states: Variance in legislations (transposition issue) and jurisdictions (implementation issue) Structure of national environmental legislation: codified or fragmented Different types of liability regimes: administrative, civil, criminal Quality of liability regimes regarding water, biodiversity and land damages

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Types of ELD integration

Transposition of the ELD as stand-alone legislation or incorporation into pre-existing legislation Complexity of transposing legislation Number and type of competent authorities Integration measures: Guidance, data etc. Substantive variations: more or less stringent than national liability regimes?

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Application of Pre-existing national legislation

The application of pre-existing national legislation might be more likely,

• when the ELD was transposed as stand-alone legislation and not integrated

into existing liability regimes

• when national transposing legislation was closely linked to the text of the

ELD and not further elaborated

• when no further integrative and coordinative measures have been carried
• ut to monitor its implementation
• when the CA has more expertise with respect to the application of pre-

existing liability regimes

• when the national liability regime is more stringent (broader scope, lower

thresholds)

• when national liability regime was already well-developed and applied

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Outcome for ELD application

Strengths of the ELD cannot come into effect:

• Procedural effectiveness
• Principle of prevention (and remediation)
• Involvement of stakeholders

No level-playing field for prevention and remediation

• f

environmental damage established ………..

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Thank you for your attention!

Birgit Schmidhuber Justice and Environment AUSTRIA Volksgartenstraße 1 1010 Vienna E-Mail: birgit.schmidhuber@oekobuero.at www.justiceandenvironment.org

J&E is funded by the European Commission, DG Environment. The sole responsibility of this material lies with the author (J&E).