2 nd ELD Stakeholder Conference 'Evaluating the experience gained in the ELD I m plem entation' ELD state of affairs 2 0 1 3 at EU level: MS Reports and COM Study
MS reports 2 0 1 3 – 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 11 th June) • Annex VI ELD (mandatory and voluntary part) • Supplementary information pursuant to agreed non-binding guidance
MS reports 2 0 1 3 – num ber of cases Num ber of ELD cases per Member State vary 90 considerably from: 80 70 60 • 85 annual cases 50 40 • 10 annual cases, 30 • 3 annual cases to 20 10 • less than 1 annual case. 0 Number of ELD cases Some Member States have up to date no ELD case
MS reports 2 0 1 3 - Categories of Dam age and causal Activity Preliminary information based on rough evaluation of 1 3 MS reports Biodiversity 30 30 Water Category of dam age: Land 40 Classification of activity: Mostly Annex I I I .7 . ( use, storage of dangerous substances) , follow ed by non-Annex I I I activities ( fault-based) , then Annex I I I .1 ( I PPC/ I ED) , I I I .6 ( w ater abstraction/ im poundm ent and I I I .8 ( transport of dangerous substances by road, rail, inland w aterw ays, sea or air)
MS reports 2 0 1 3 – Duration of Rem ediation; Judicial Review Cases Length of rem ediation procedure : between 5 days and more than 3 years, average duration approximately more than 14 months Months 5 0 0 50 Judicial review procedures : relatively few in terms of appeal procedures, but around one third of the cases go court (wide varieties between MS)
MS reports 2 0 1 3 – Costs of Rem ediation, Adm inistrative Costs Costs of prevention and rem ediation : Range between €2,950 and €2 million (€65.4 million?) Average: €300,000 (€4.6 million?) depending on large scale damage cases Adm inistrative costs rarely m entioned, 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 2 0 1 3 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 2 0 1 3 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 2 0 1 3 Other points Activities to prom ote the im plem entation of the ELD: some MS report about wide ranging activities Application of thresholds determ ining the significance of dam age: 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 I m plem entation Study 2 0 1 2 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 I m plem entation Study 2 0 1 2 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 I m plem entation Study 2 0 1 2 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 I m plem entation Study 2 0 1 2 Key results from em pirical 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 I m plem entation Study 2 0 1 2 Key results from em pirical 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 I m plem entation Study 2 0 1 2 Recom m endations to strengthen practical im plem entation 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 I m plem entation Study 2 0 1 2 Need to address the follow ing 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/ environm ent/ liability/ index.htm E:m ail: Hans.Lopatta@ec.europa.eu • Mem ber States’ reports by April 2 0 1 3 : • Annex VI ELD • Questionnaire useful? Thank you for your attention ! • Records of ELD cases • Com m ission report by April 2 0 1 4 : • 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)
Recommend
More recommend
