Report and REFIT Evaluation – ELD
On 30 April 2014 was the initial deadline for European Commission to submit report to European Parliament and Council, including appropriate proposals for amendment of the ELD. Due to delays in MS reporting and evaluation and changes at EU political level this deadline was postponed.
In this context, the review and report subsequently combined with review of the ELD under the Regulatory Fitness and Performance Programme (REFIT).
On 14 April 2016, the Report from the Commission to the Council and the European Parliament under Article 18(2) of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (COM/2016/0204 final) was issues, while the REFIT evaluation is annexed as Commission Staff Working Document REFIT Evaluation of the Environmental Liability Directive Accompanying the document Report from the Commission to the European Parliament and to the Council pursuant to Article 18(2) of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (SWD(2016) 121 final).
The overall conclusions of the report can be briefly summarized on the following elements:
- Transposition and implementation of the ELD has not resulted in a level playing field across the EU
- There was insufficient information adequately to carry out the REFIT review
- Available information indicated, among other things, that some MS have continued to implement national laws instead of the legislation transposing the ELD
The main challenges as regards the implementation of the ELD according to the report refer to the:
- ‘Low availability of data on ELD cases, including in particular data on the application of complementary and compensatory remediation, acting in addition to the fact that eleven Member States notified not a single ELD incident and some Member States apparently choose not to place any incidents under the ELD,
- Low awareness of the Directive by main stakeholders and practitioners,
- Ambiguities around key concepts and definitions, such as the “significance threshold”, “preventive action”, “favourable conservation status”,
- Exceptions and defences to the scope of environmental damage and strict liability, which may reduce effectiveness and efficiency accordingly,
- Insolvency of operators in cases of costly environmental remediation’
The proposals of the report focus on:
- Carrying out a ‘multi-annual rolling work programme in order to improve the evidence base and help align national solutions’
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‘Continuing to provide administrative support measures, such as
- guidance or interpretative notices on key issues (“significance”);
- training programmes; and
- helpdesks for practitioners (covering competent authorities, operators, loss adjusters, financial security providers, affected individuals, NGOs, etc.) providing information, assistance and assessment support for risk and damage evaluations’