The Environmental Liability Directive - Extending Nature Protection in Europe


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Abstract: With regard to nature protection through environmental liability, recent developments in Europe are most interesting. After the EC had already established a coherent species and habitat protection regime with the Birds Directive and the Habitats Directive in 1979/1992- which alone is remarkable because it covers areas of protection not only within national borders but throughout Europe - it introduced the Environmental Liability Directive (ELD) in 2004. The ELD aims at nature protection - in addition to the protection of water and land - by requiring potential polluters to avoid pollution, or to remediate the affected area in case of damage. One interesting point about the Directive is the fact that it ties in with the existing nature protection regime by making a reference to the Birds Directive and the Habitats Directive. This link between existing nature protection regulations and additional liability provisions is notable in various respects. First, more than a decade after the introduction of a nature protection regime an additional regime is established in Europe to make the existing species and habitat protection more effective. Secondly, the environmental liability regime - as will be shown in this contribution - extends the scope of existing nature protection in Europe. Thus, we are witnessing an interesting way to extend nature protection through environmental liability regulations. The issue is crucial not only for Member States - regarding the design of the provisions which have to be adopted to implement the ELD - but also for operators, who face a potential liability.


It goes without saying that nature protection is a must. Massive population growth combined with changes in lifestyle and technological development has led to an appalling rate of decline in and loss of the natural environment. Degradation and loss of nature, natural resources and biodiversity are accelerating at an alarming speed.1 The reasons for conserving nature are manifold. First and foremost, it is no exaggeration to state that the survival of humanity depends on the conservation of nature, natural resources in the form of soil, water, the atmosphere, and of all life forms the planet sustains.2 Amongst the many reasons why species and habitats3 are valued are furthermore the educational value of nature for scientific study and the value as a source for pharmaceutical products. Also, the rights and interests of future generations and the importance of a healthy environment for recreation cannol be underestimated.4 As for the economic value of nature, the all-embracing importance of biodiversity has recently been highlighted by the European Commission:

From an economic perspective, biodiversity provides benefits for present and future generations by way of ecosystem sendees. These services include production of food, fuel, fibre and medicines, regulation of water, air and climate, maintenance of soil fertility, cycling of nutrients.

For all these reasons, nature protection, which effectively ensures conservation and protection in the long term, is desperately needed. In addition to different nature protec¬tion tools6 environmental liability provisions can also contribute to nature protection and complement nature protection regulations. The basic principle of environmental liability can be described as follows. The person whose activity has caused environmental damage or the imminent threat of such damage is to be held financially liable, in order to induce this person to adopt measures and develop practices to minimise the risks of environmental damage so that their exposure to financial liability is reduced. Accordingly, various international, European and national approaches towards environmental liability have been developed during the last few decades. However, although there are quite a number of notable approaches, nature protection and environmental liability consist -generally speaking - of various different instalments and regimes which in many cases are not interlinked. With regard to the fact that nature protection needs to be comprehensive and all-embracing in order to be effective in the long term, a wide scope of the different instruments and approaches is as important as an effective interplay between several regulations.

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