Legal persons governed by public law may be liable for environmental damage caused by activities carried out in the interest of the community by virtue of a legal transfer of tasks, such as the operation of a pumping station for the drainage of agricultural land, the Court of Justice of the EU ruled on Thursday 9 July (Case C-297/19).
Part of the Eiderstedt peninsula (Germany) is classified as a protected area due to the presence of the Black Tern, a protected water bird, and is mainly traditionally used as a large grazing area.
To be exploited for agricultural purposes, the peninsula needs drainage. This is carried out by a hydraulic and reclamation syndicate constituted as a legal entity under public law, which operates a pumping station. These pumping operations, which reduce the water level, are part of its legal mission to maintain surface water.
Denouncing environmental damage caused by the pumping station, an association brought an action seeking the limitation and repair of this damage. It relies on German legislation transposing Directive 2004/35, which establishes a framework for environmental liability with a view to preventing and remedying, in particular, environmental damage caused by professional activities to the species and natural habitats referred to in the Habitats (92/43) and Birds (2009/147) Directives.
However, the German authorities consider that the pumping operation is the result of normal management of the site, which benefits from a liability exemption under Annex I of the Environmental Liability Directive.
In its judgment, the Court takes the view that the management of a site hosting protected species and natural habitats can be regarded as "normal" only if it complies with the objectives and obligations laid down in the Habitats and Birds Directives and, in particular, with all the management measures adopted by the Member States on the basis of those Directives.
According to the Commission, the normal management of a site may, inter alia, include the agricultural activities carried out on the site, including their indispensable complements, such as irrigation and drainage, and thus the operation of a pumping station.
Furthermore, the European Court points out that, under Annex I to Directive 2004/35, the normal management of a site may also result from a previous practice exercised for a sufficiently long period by the owners or operators.
On the question whether an activity carried out by a legal person governed by public law in the interest of the community by virtue of a legal transfer of tasks, such as the operation of a pumping station for the purpose of draining agricultural land, may constitute a 'professional activity' within the meaning of Directive 2004/35, the Court confirms that that expression covers activities carried out in a professional context, as opposed to a purely personal or domestic context, irrespective of whether or not those activities are market-related or competitive in nature.
See the judgment of the Court: https://bit.ly/3feKlbn (Original version in French by Mathieu Bion)