The Commission's White Paper on Environmental Liability: A Weak Case for an EC Strict Liability Regime

26 Pages Posted: 30 Jun 2000

See all articles by Lucas Bergkamp

Lucas Bergkamp

Hunton & Williams, Brussels; KU Leuven, Faculty of Law

Abstract

In February, 2000, the European Commission issued the long-awaited White Paper on Environmental Liability. The White Paper outlines the Commission's views on the key elements of a proposed environmental liability directive. This directive would provide for strict liability for conventional and environmental damage caused by "dangerous" activities regulated by EC law (i.e. virtually all industrial activities), and fault liability for natural resource damage caused by non-dangerous activities. In the Commission's view, such a regime would implement the EC Treaty's grand principles of environmental policy (the preventive, precautionary, and polluter pays principles) and improve the enforcement of EC environmental law. The existing national liability regimes are deemed inadequate by the Commission.

This article reviews the main substantive law (and some related procedural law) features of the liability scheme outlined in the White Paper. The first part discusses the justifications for EC legislation on environmental liability. It analyzes whether under the subsidiarity principle, or for reasons of improving the functioning of the internal market, the EC, rather than the Member States, should set any necessary policy in this area. It addresses also the key principles of the EC's environmental policy that the Commission invokes to support its proposal. The second part focusses on the critical question of strict versus fault liability, and the burden of proof. The White Paper argues that strict liability should be preferred over fault liability. The arguments to support strict liability are reviewed. In the third part, the scope of the regime proposed by the Commission is reviewed. Dangerous and non-dangerous activities would be treated in different ways, and the Commission proposes certain exemptions to the directive's scope. The fourth part discusses the issue of insurance and financial security. To secure funds for compensating environmental harm, the White Paper suggests that insurance should play an important role. In part five, the liable persons and available defenses are discussed. Part six analyzes the White Paper's proposals with respect to valuation of natural resource damage, contaminated sites, and standing to sue. Some conclusions are set forth in part seven.

JEL Classification: K13, K32

Suggested Citation

Bergkamp, Lucas, The Commission's White Paper on Environmental Liability: A Weak Case for an EC Strict Liability Regime. Available at SSRN: https://ssrn.com/abstract=223108 or http://dx.doi.org/10.2139/ssrn.223108

Lucas Bergkamp (Contact Author)

Hunton & Williams, Brussels ( email )

11, rue des Colonies
1000 Brussels
Belgium
+32 2 643 58 00 (Phone)
+32 2 643 58 22 (Fax)

KU Leuven, Faculty of Law ( email )

Tiensestraat 41
Leuven, B-3000
Belgium

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