Brussels, 28/05/2002 (Agence Europe) - The proposal of a framework directive on the environmental responsibility regime, which was put to first reading at the legal affairs and internal market committee of the European Parliament, was the subject of a public hearing on Tuesday 21 May. Participants felt the Commission's proposal was along the right lines but required some complementary additions or clarification to achieve an effective system and prevent unending procedures. Dutch Liberal Rapporteur Toine Manders considers that, despite their different views, the different parties showed "a level of consensus that was higher than expected". According to Mr Manders, the Commission's proposal is acceptable for the industry and also for NGOs. Issues tackled in particular at the public hearing include the scope of the directive, the responsibility regime and insurance against risks. Reserves expressed by the environmental defence NGOs upon presentation of the proposal (see EUROPE of 25 January, pp.6/7) could be the subject of significant amendments. According to Roberto Ferrigno of the European Environment Bureau, the position taken by organisations such as BirdLife International, Greenpeace, Friends of the Earth, the WWF (World Wide Fund for Nature) plans firmer anchorage of the "polluter pays" principle, sanctioned by strict responsibility. It also advocates effacing from the text the exceptions that, according to these organisations, allow too many operators to shirk their responsibility and bring the financial charge of environmental rehabilitation to bear on the public authorities, and hence on taxpayers. NGOs also stress that the list of dangerous activities in Annex 1 (incineration and manufacturing installations of dangerous chemical products and activities that give rise to the dumping of heavy metals in water or in the air, should be enlarged to all those presenting a danger for the environment, such as transport, pesticides, mining activities and GMOs. Edward Brans, professor and researcher in environmental law at the Free University of Amsterdam, felt that GMOs are not likely to be included in the directive, the current state of scientific knowledge on the effects and the lack of political consensus on the subject preventing any immediate move forward.
The system proposed differentiates between the activities coming under Annex I, for which strict de facto liability for harm done is applicable, from the other activities to which fault liability is applied. Thus, operators whose activity does not appear on the list are potentially liable to the cost of preventing or repairing environmental damage, but only when it can be proved that they have been negligent. Mr Brans considers this difference does not pose a problem if, in the case of liability for fault, the directive makes it compulsory for polluters to forward all information available to them to the national authorities. He considers, nonetheless, that the formulation of exceptions and defence arguments (acts of God or prior authorisation in particular) is too general and that the notion of negligence should be clarified. Generally speaking, third parties remain able to take action in justice to interrupt or prevent an activity that causes or could cause damage to natural resources, as long as they are directly affected by the damage. The innovative aspect of the directive (Article 14) consists in the possibility provided for third parties to refer the matter to the relevant national authority which is able to initiate legal proceedings to engage the liability of operators having caused injury to natural resources, and thus to obtain payment for the measures needed for rehabilitation of the environment. The good thing about this system, said Mr Manders, is that it strengthens legal certainty in allowing an objective authority to fix the amounts to be paid. In the event of crossborder damage, this may prove decisive.
The proposal that requires Member States to encourage operators to take out a financial guarantee has given rise to different approaches. According to NGOs, Article 16 should prescribe compulsory recourse to a system of financial guarantee, in the form of insurance or appropriate funding, in order to avoid differences between Member States and the possible relocation of activities in countries where "insurance requirements are non-existent or very low". Phillip Bell, representing the insurance companies, declared he was against the compulsory insurance regime and noted how difficult it was for insurers to predict or fix insurance premiums for a European market that is in its early stages. These fears and uncertainties could be partially lifted if the notion of damage to natural resources were adopted instead of that of biodiversity. The latter being too broad a notion (taking micro-organisms into account), Mr Bell considers that no insurance firm would agree to accept this kind of risk. Given the complexity of assessing environmental damage, Mr Brans recommends that it be carried out by teams of experts according to a specific method of calculation to be defined (Annex 2), based on the different scenarios possible and desirable for rehabilitation of the environment. Damage could then be quantifiable in terms of cost, thus making the work of the insurance firms easier. Speaking on behalf of industry, Friederich Kretschmer criticised the "disastrous legislative style" of the Commission's proposal which "came off the right track by going too far". He affirmed that insurance premiums could prove too "heavy to bear" and "penalise" small companies. Definitions remain too vague and there should be a limit placed on liability, he added.
Furthermore, Mr Manders deplored the excessive energy deployed on questions of competence between parliamentary committees, rather than on the subject itself which is eminently legal and which, he says, warrants giving the leading role to the legal and internal market committee and not to the environment committee. The Conference of Presidents scheduled for 6 June should settle this question, allowing the work of the parliamentary committee to continue. Mr Manders hopes he will be able to present his report to the plenary session in October.