4.5 Annex 5. ENVIRONMENTAL LIABILITY

Presentation made by John Hontelez (EEB), plenary, 15 September 2000

(Copies of the transparencies used for the presentation)

On European agenda because

Maybe on Kiev agenda:

EU Commission/Denmark: “liability for transboundary river pollution”

Some agreements exist:

Nuclear: Paris-Vienna (?) limited liability, and shared between owner and state

Lugano Convention (93, not in force):

“on the civil liability for damage arising from dangerous environmental activities”.

FORMS OF LIABILITY
  1. classical: violation of an object of legal protection (life, any intact body and property), by an unlawful act or other form of fault (negligence, etc).
  2. Product liability: damage caused by the use of a product: burden of proof on the one harmed.
  3. Environmental liability: damage includes “the common good”, and moves from “fault” to “responsibility”.

Lugano Convention: “to make possible adequate reparations for damage resulting from activities that are a hazard to the environment”

1. “Environmentally hazardous activities”: broad definition, a.o.:

activities with dangerous activities, GMOs and micro-organisms, Waste disposal facilities. List is not exclusive!

2. Strict liability = liability without fault! And including all “who has the actual control over a dangerous activity at the point in time when the damage occurs or is made known”.

3. ECO’s can take legal action

4. All types of damage including landscape and cultural heritage

5. Restoration over financial compensation (if “reasonable”).

PROBLEMS WITH LUGANO CONVENTION:
  1. Lack of support
  2. CEE/NIS was not involved.
  3. Gives States great latitude and freedom in transposition.

So, as such not a perfect solution.

But: the important principles are laid down. A new negotiation will lead to watering down of the principles: upcoming resistance business [long process in EU towards a Directive]

So: Lugano as a basis, but seeking more uniform implementation?

EEB’S MAIN DEMANDS

  1. strict liability: not fault based
  2. broad definition of “environment”, including the common goods
  3. broad access to justice
  4. “proof of causality” less strict
  5. liability “both jointly and severally”
  6. sufficient capital/insurance available
  7. no limits
  8. liability funds to be set up