Polluter-pays principle

Another principle with preventive effect is the polluter-pays principle. This was expressed as early as in the Community’s First Environment Action Programme and has since been repeated in all subsequent action programmes. It was added to the EEC Treaty through the Single European Act in 1987 and is now included in Article 191 (2) TFEU, according to which it is a fundamental principle of Union environmental policy. The principle has been described in varying ways in the various EU languages. Some languages refer to ‘polluter pays’,⁰⁹ whereas the English version is ‘polluter should pay’. The Swedish text has a more absolute wording and says ‘polluter shall pay’. However, normally there is no question of an absolute requirement.

The principle means that the costs of pollution or other environmental damage, including the costs of restoring the environment after damage, shall be borne by whoever has caused them, namely the polluter, and not by taxpayers or the wider community. The principle will contribute partly to the achievement of the EU’s environmental goals, and partly to the prevention of distortion of competition among various actors in the Union (which would be the case if certain actors but not all were forced to pay for the pollution their activities had caused).^{[1] [2] [3] [4] [5] [6] [7]}

The principle can be implemented through rules requiring operators or other polluters to take necessary measures and pay the costs for the prevention of pollution. An example is the requirement of best available techniques. Another, and perhaps more refined expression of the principle, is when the costs to counter the pollution or restore environmental damage are channelled to the polluters through fees, taxes, liability schemes, and similar economic instruments. This is a marked feature of EU waste-related acts as well as the Environmental Liability Directive.^{[8] [9] [10]}

A problem when applying this principle is that it is often unclear who should be considered as polluter. Is it, for example, the car driver, car manufacturer, producer or distributor of fuel, or perhaps all of them who are polluters in relation to car traffic environmental damage? Should the pollution be a breach of a legal norm so that the principle can be invoked? The actual formulation of EU law indicates that these questions are answered differently in different areas, and other factors rather than the principle of polluter pays have very often been decisive for the definition of the policy. The principle may be politically very challenging to apply—which, for example, is clearly expressed in the resistance in many quarters against a carbon tax—and in some cases administratively cumbersome to implement. It is not least due to the difficulty in most cases of identifying the source of existing pollution and allocating responsibilities in an acceptable manner among several contributing polluters. At the same time, for new emissions, pollution should be paid by the polluters irrespective of whether it comes from point sources such as industrial plants or from diffuse sources such as transport.

In practice, both the EU and the Member States have often ignored the principle, while both government subsidies and EU funds have been used to ensure that environmental requirements are met. 132

In judicial practice, the principle is mainly important when there are explicit rules in secondary EU legislation that require a certain category of persons responsible for pollution (for instance holders or producers of waste or operators of a certain activity) to bear a cost. The principle can here affect the interpretation of these rules.

In Case C-188/07, the Court of Justice relied on the polluter-pays principle to interpret Article 15 of the then Directive 75/442 on waste.133 According to this article, the costs of disposal of waste, in accordance with the polluter-pays principle, shall be borne by the holder, who gets a collector to handle the waste, and/or the previous holders or producers of the product that has occasioned the waste. However, holders of waste that is the result of, for instance, an accidental spillage of hydrocarbons at sea may not be required to bear the cost of disposal if this cost has reached the compensation ceiling. The national legislator, the Court held, must therefore admit that the cost in such cases will be borne by the producer of the product from which the waste originated. In practice, the Court’s finding was hardly grounded in an independent principle of polluter- pays because its decision can be seen simply as a way to achieve the Directive’s explicit objective.

Directive 75/442 on waste has since been replaced by Directive 2008/98/EC. Here, the costs of waste management shall be borne, with respect to the polluter- pays principle, by the original producer of the waste or its current or previous holder. To have the costs charged to the producer of the product causing the waste or to have the distributors of such products share the costs is now something that each Member State may decide, but it is not required.^{[11] [12] [13] [14] [15]} This can be seen as a step back from the Court’s statement that the producer of the product from which the waste originated must be required to bear the costs if no other party later in the life cycle of the product can be required to do so.

In Case C-254/08 dealing with principles for allocation of the costs of handling and disposal of waste, the Court ofJustice once again interpreted Article 15 of what was then Directive 2006/12. The Court held that Member States must ensure that in principle all those who use the municipal waste disposal service in their capacity as ‘holders’ collectively bear the overall costs of disposal.135 However, Member States have considerable possibility to allocate the costs based on estimates of how much waste different categories of holder generate rather than on the basis of what holders have actually presented for collection. A breach of EU law will arise only if this leads to some holders being required to pay for costs that are manifestly disproportionate to the volumes or nature of the waste they produce.^⁶

A further aspect of the polluter-pays principle is close to the proportionality principle. When responsibility for the pollution is claimed, other sources of pollution (rather than those that are regulated by a certain legal act through which the polluter- pays principle is implemented) shall be taken into account, and nobody should be obliged unnecessarily to eliminate the pollution. For this assessment, scientific and technical data and the characteristics of the area concerned shall be considered.^⁷

Operators should not have to bear the costs of remedying pollution to which they themselves have not contributed.^⁸ It is nevertheless allowed, when implementing the Environmental Liability Directive (2004/35), to presume that there is a relation between certain operators and a proven pollution, because the operator’s installations are located close to the polluted area. This applies even when pollution has a diffuse character. However, in accordance with the polluter-pays principle, in order for such a causal link to be presumed the competent authority must have access to reliable information justifying its presumption, such as the operator’s installation being located near the area affected by the identified pollution, and that the pollutants found are used by the operator in his activities.^⁹

• [1] See Regulation (EC) No 1013/2006 of the European Parliament and of the Council on theshipment of waste (OJ [2006] L190/1).
• [2] Case C-203/96 Chemische Ajvalstoffen Dusseldorp and Others ECLI:EU:C:1998:316, para 50.
• [3] Dir 2008/98/EC (n 116), Art 16.
• [4] CaseC-297/08 Commission v Italy ECLI:EU:C:2010:115, para 66.
• [5] Case C-221/06 Stadtgemeinde Frohnleiten ECLI:EU:C:2007:657, para 67.
• [6] This is the case of the Danish language. In the German text, it is only referred to as‘Verursacherprinzip’ and in the French text as ‘le principe du pollueur-payeur’.
• [7] Jans and Vedder European Environmental Law (n 23) 50.
• [8] Directive 2004/35/CE of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L 143/56.
• [9] Kramer EU Environmental Law (n 26) 27.
• [10] Case C-188/07 Commune deMesquer (n 41).
• [11] Dir 2008/98/EC (n 116), Art 14.
• [12] Case C-254/08 Futura Immobiliare and Others ECLI:EU:C:2009:479, paras 46 and 52.
• [13] Ibid, para 57.
• [14] CaseC-293/97 Standley and Others ECLI:EU:C:1999:215, para 52.
• [15] Case C-378/08 ERG (n 24), para 67. 139 Ibid, para 70.