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Abstract
Each Member State of the European Union (EU) imposes tort liability, including liability from exposure to pollutants and other environmental damage. The liabilities are set out in civil codes, laws of obligations, and similar legislation. Some Member States include liability for pure economic loss as well as bodily injury and property damage. In addition, many Member States impose liability for remediating historic land contamination that continues to pose a risk to human health and the environment.
The predominant environmental permitting legislation in the EU is EU legislation, which is accompanied in most Member States by more extensive national environmental permitting legislation and, in some Member States, environmental liability legislation. Since 2007, EU legislation has imposed liability for preventing and remediating pollution and other environmental damage including damage to natural resources.
Insurance that provides cover for environmental liabilities, including tort claims and costs of remediating environmental damage, differs substantially between Member States. Whereas large and multinational companies tend to have no problem in purchasing environmental insurance policies, the policies are not always available to companies that have sites and/or operations in a single Member State. The policies are widely available to such companies in some Member States but available only to a limited extent or not at all in other Member States. Environmental extensions to general liability policies tend to be widely available in most Member States with the caveat that cover provided by them is limited or severely limited except in Austria and Germany.
A few Member States have imposed mandatory financial security for the prevention and remediation of environmental damage under EU legislation. A much larger number have imposed mandatory financial security on persons that carry out waste operations or other specified operations. The requirements differ substantially between Member States.
This chapter examines EU and national environmental liabilities, insurance for such liabilities, and mandatory financial security for them.
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This chapter uses the words ‘contamination’ and ‘pollution’ to refer to damage to land/soil and the word ‘pollution’ to refer to damage to water and air. The use of the two words is not intended to denote different meanings between them.
The following discussion on the contaminated land regimes of Member States is drawn in particular from Fogleman (2021), pp. 100–104; https://ec.europa.eu/environment/legal/liability/pdf/study/FinalReport.PDF (accessed on 10.05.2023) (click on ‘Studies’ and then ‘Study – Facilitating enforcement of the ELD by competent authorities (2021) – Final Report’ and ‘Studies’ and then ‘Study – Facilitating enforcement of the ELD by competent authorities (2021) – Member State Report’.
Article 15.5 of the Irish Constitution states, in pertinent part, that Parliament ‘shall not declare acts to be infringements of the law which were not so at the date of their commission’. See Magee v Culligan [1992] 1 IRLM 223 (per Finlay CJ; provision applies to civil as well as criminal liability).
See Proposal for a Directive of the European Parliament and the Council amending Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) and Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (COM(2022) 156 final, 5 April 2022), explanatory memorandum, section 1; https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0156R%2802%29&qid=1651130627889 (accessed on 10.05.2023).
Commission Notice, Guidelines providing a common understanding of the term ‘environmental damage’ as defined in Article 2 of Directive 2004/35/EC of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage 2021/C 118/01 [2021] OJ C118/1, para 151; https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021XC0407%2801%29&qid=1617956961808 (accessed on 10.05.2023).
Il Pool Ambiente è il Consorzio per l’Assicurazione e la Riassicurazione della Responsabilità per Danni all’Ambiente; https://www.poolambiente.it/ (in Italian) (accessed on 10.05.2023).
Harvard Business School (2013). Self-insurance involves a large company setting aside funding for losses in the event of an unanticipated event such as a pollution incident.