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Member States missing the opportunity to implement ‘polluter pays’ principle

Florence Coroner

elni Review 2007, Issue 1,  pp. 30-33.

The Environmental Liability Directive  (ELD), which was adopted in April 2004 and should be transposed by Member States before 30 April 2007, seeks to apply the ‘polluter pays’ principle by forcing operators who are responsible for environmental damage to pay for its remediation. ELD’s provisions apply to water, land and biodiversity. The fact that Member States enjoy great latitude in transposing the Directive has two direct consequences. First, it delays the transposition process owing to the debate between stakeholders over controversial clauses in this Directive. A few EU countries, including the UK, Ireland, and Austria risk missing the deadline. Second, this situation could lead to a very multifarious liability régime in Europe and even among different regions in a single country in federal states, which would clearly complicate monitoring and enforcement of the new law. The indirect consequence is that differing liability régimes risk failing to meet the Directive’s objective of applying the ‘polluter pays’ principle. As it stands most Member States seem to take advantage of the leeway the Directive offers by implementing weak legislation which only complies with the bare minimum requirements of the EU’s legislative text. Those countries are missing the opportunity to implement the ‘polluter pays’ principle.

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  1. Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ 2004 L 143/56.