This second week of January was dedicated to some working sessions about a possible review of the Environmental Liability Directive (ELD). The first was set up by industry, the second by Bio Intelligence Service. Bio Intelligence is a consulting firm contracted by the European Commission to conduct several studies on the ELD before the official report from the Commission planned for early 2014. In between the two, the Commission held a meeting of national experts.

Since its adoption in April 2004, the ELD has been a mild compromise, with a lot of provisions. This was the best that member states could achieve at the time; it was just before the EU enlargement in May 2004. It had a difficult birth, which will have serious consequences when the time comes to assess its implementation.

The transposition phase lasted from 2004 to 2010. It appears today that the Directive has been very complex to integrate into national laws. The competent authorities had no practical experience with the ELD regime and they preferred to use pre-existing legislation. Differences between previous laws and the ELD transposition were too small, hence only a few cases have been treated under the ELD regime.

Neither authorities nor the industry have the sufficient experience, expertise or willingness to enforce or comply with the ELD regime.

The 27 different transpositions have completely altered the core of the ELD and led to a patchwork of laws. As it is framework directive, member states were free to choose the liability system (strict or joint), how to assess the evidences of environmental damage and how to achieve the severity threshold, that means  the level of damage to the environment required to trigger the application of the ELD regime.

Confusion

The attitude of member states towards ELD implementation has left industry confused. Participants from the public sector and industry were quite clear on this; Professionals are facing great uncertainty while dealing with authorities that are struggling to know if ELD is relevant or if they should rely on pre-existing legislation.

The private sector is very well aware of environmental risks, and most companies are taking this issue seriously. In many industries, it is now part of their risk management systems.

Companies are looking for a scheme that will give them strong and affordable insurance coverage. At FERMA we have always  strongly advocated freedom of action in the choice of coverage, not a mandatory financial security system that could heavily distort competition between European industry and the rest of the world.

FERMA has had a consistent position on this issue since last year, shared by a growing number of industry participants.