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8.5.

2003 EN Official Journal of the European Union C 110 E/101

(2003/C 110 E/104) WRITTEN QUESTION E-2766/02


by Kathleen Van Brempt (PSE) to the Commission

(1 October 2002)

Subject: Proposal for a directive on environmental liability  Written Question P-2156/02  inadequate
reply  violation of Article 197 of the EC Treaty

The Commission is asked, in particular, to give an exhaustive answer regarding the following points:

1. In its reply, the Commission states that not all the activities listed in Annex I fall under Community
permit or authorisation systems (paragraph 4) and that the proposal for a directive does not
distinguish between or impose any restriction in the light of the Community or national character of
the provisions referred to in Article 9(1)(c) (paragraphs 4 and 11). In paragraph 11 of the reply, the
Commission stresses that ‘however, it is not the case that a national permit or authorisation is required
for all hazardous substances and preparations’.
This gives rise to the following questions:
 In what specific circumstances (if any) is a potentially or actually hazardous activity as referred to
in Annex I which is not subject to a Community permit or authorisation system also not subject
to a national permit or authorisation system?
 How does the Commission justify the fact that national permit or authorisation systems may be
accepted as grounds for exemption from the system of no-fault environmental liability, bearing in
mind the need to avoid distorting the internal market (the ‘environmental shopping’ phenom-
enon)?

2. In its reply, the Commission states that Article 9(1)(c) does not apply to damage caused by emissions
which have not been authorised or which exceed the permitted levels (paragraph 5). Is the
Commission aware that the emission of certain substances without permission is a fault on the part
of the operator which is relatively easy to prove and that consequently it is apparently the intention
that the no-fault liability system should mainly apply in precisely those situations where it is least
useful? As regards the application of no-fault liability in cases where the prescribed limit is exceeded:
the Commission proposal does not provide any indication as to which system is applicable to the
burden of proof. The Commission is asked to clarify this point.

3. In its reply, the Commission states that Article 9(1)(c) does not refer to the activity as such but to an
emission or occurrence, and that the article accordingly does not apply to accidents (paragraph 6). Is
the Commission aware that an accident is the result either of force majeure (another ground for
exemption provided for by Article 9(1), likewise applicable) or of a fault on the part of the operator?
Can the Commission provide some clarification with regard to the fact that here again the operator’s
fault is relatively easier to demonstrate than in other cases where it is precisely the intention that the
no-fault liability system should not be applied, on account of the above article?

Joint answer
to Written Questions E-2765/02 and E-2766/02
given by Mrs Wallström on behalf of the Commission

(18 November 2002)

As advised in its answer to the Honourable Member’s written question P-2156/02, the Commission’s
proposal on environmental liability provides for certain exemptions under Article 9(1)(c). The exemptions
do not cover cases when damage is caused by an accident or any other malfunction of the activity
concerned and when any operating condition or limit value attached to the operation of the activity
concerned has been breached. It is not possible to be more specific since accidents, malfunctions or
breaches of any applicable rules can hardly be anticipated.

The proposal aims to establish a framework whereby environmental damage would be prevented or
remedied. To that effect, the proposal specifies the circumstances under which operators can be held liable,
either on a strict basis or because of their fault or negligence, subject to the exemptions set out, inter alia,
in Article 9(1)(c). There is, therefore, no unconditional rule of strict liability.