Request for action and more protective measures
The ELD includes a right to request a competent authority to take action in relation to environmental damage or an imminent threat of such damage. More specifically, any natural or legal persons who are affected or likely to be affected by environmental damage or who have a sufficient interest in environmental decisionmaking relating to such damage shall have the right to submit relevant observations relating to instances of, or an imminent threat of, such damage and must be entitled to request the competent authority to take action under the Directive. The same goes for anyone alleging the impairment of a right, where administrative procedural law of a Member State requires this as a precondition. The interest of any non-governmental organisation promoting environmental protection and meeting any requirements under national law shall be deemed sufficient. Such organisations shall also, where relevant, be deemed to have rights capable of being impaired. A person who has requested the competent authority to take action in accordance with relevant provisions of the ELD shall also have access to a court or other independent and impartial public body competent to review the procedural and substantive legality of the decisions, acts, or failure to act of the competent authority. (Arts 12 and 13.)
A right for the Member States to take more protective measures than those prescribed by the ELD follows already from the fact that the ELD is based on an article corresponding to the current Article 192(1) TFEU. However, the scope of this right is elaborated in the Directive by giving as examples of permissible more stringent provisions the identification of additional activities to be subject to the prevention and remediation requirements of the ELD and the identification of additional responsible parties. (Art 16.)
The Court of Justice has had reason to stress that where no causal link can be established between the environmental damage and the activity of the operator, the situation falls to be governed by national law. The mere fact that liability may be extended by Member States to additional parties does not create an obligation on Member States, in cases where it is impossible to identify the polluter of a plot of land or to have that person adopt remedial measures, to require the owner of the land to adopt preventive and remedial measures.114
Only four Member States met the deadline of 30 April 2007 for transposing the ELD. Also thereafter the transposition of the Directive remained slow, which led to infringement procedures being initiated against twenty- three Member States, seven of which were eventually brought to the Court of Justice.n5 An analysis of the implementation of the ELD prepared for the Commission found that rather than creating a level playing field, the Directive has resulted in a patchwork of national systems for preventing and remedying environment damage.пб This is due for example to the imprecise language used in the ELD, the existence of optional provisions, and the application of national law concepts including the standard of liability, the level of causation, and secondary liability. ny
An indication of the huge differences between Member States in how the ELD is interpreted and how it interacts with the domestic civil liability system is the number of cases in which the Directive has been applied. That figure varies between different Member States from none to hundreds.n8
- 114 Case C-534/13 Fipa Group and Others ECLI:EU:C:2015:140, para 63.
- 115 Report from the Commission Under Article 14(2) of Directive 2004/35/CE on the environmental liability with regard to the prevention and remedying of environmental damage (12 October 2010) COM(2010) 581 final.
- 116 Implementation challenges (n 102) 7.
- 117 Ibid, 9-10. 118 Ibid, 12.