Specific Principles
Polluter Pays Principle
The polluter pays principle (PPP) requires polluters to bear the environmental and social cost of their actions. Prior to the recognition and application of the PPP, air and water resources were used as 'sinks' for pollution, with damage to human health and property being paid for by society rather than by the polluter. Disproportionate social and private costs of pollution were /being 'externalised' from the polluter to wider society. The PPP aims to overcome these defaults by requiring polluters to internalise the cost of potential pollution in the production process (built-in costs), rather than allowing society to incur costs in the aftermath.
In Case C-297/19 Naturschutzbund Deutschland - Landesverband Schleswig-Holstein, the CJEU was dealing with damage caused by management of the Natura 2000 sites. German language version of the Environmental Liability Directive implied that the Member States have the power to exempt operators and owners from all liability merely because damage has been caused by previous management measures. The CJEU refused such interpretation because that approach would widen excessively the scope of the exceptions and was contrary to the requirements that follow from the precautionary principle and the PPP.
The PPP has been utilised as an economic tool for managing different types of environmental pollution through embodiment in legislation including the Waste Framework Directive, the Landfill Directive and the Water Framework Directive. Article 1 of the Environmental Liability Directive is worded as follows: ‘The purpose of this Directive is to establish a framework of environmental liability based on the “polluter-pays” principle, to prevent and remedy environmental damage.’
Very often, the PPP serves as a guidance for interpretation of the abovementioned directives and considerations on their temporal scope.
In Case C-15/19 Azienda Municipale Ambiente, the CJEU held that the Landfill Directive does not preclude the national law which requires that a landfill site in operation at the date of transposition of the Directive must be subject to the obligations arising under that Directive, in particular the obligation to extend the after-care period following the closure of the landfill. That requirement is an expression of the polluter pays principle, which implies that the cost of disposing of the waste must be borne by the waste holders.
The PPP is not applied as an absolute rule, more as a method to determine the effectiveness of the financial burden as a whole. It should reflect the principle of proportionality (Case C-293/97 Standley).
In Case C-534/13 Fipa Group and Others, the CJEU was dealing with a dispute regarding sites in Italy polluted by industrial activity. Under the national law, the authorities could not require the new landowners who have not contributed to that pollution to carry out preventive and remedial measures. The Court held that the national legislation does not violate EU law, provided it is impossible to identify the polluter of a plot of land or to have that person adopt remedial measures.