The desirability of an EC environmental liability regime has been a highly controversial subject ever since it was first discussed in the early 1980s during the passage of the 1984 Directive on transfrontier shipment of hazardous waste. Following abortive attempts in 1989 and 1991 at a Directive on civil liability for damage caused by waste, the current initiative took off in 1993 with a Commission Green Paper on remedying environmental damage (ENDS Report 218, p 38 ).
Responses to that document revealed sharp disagreements about the need for an EC regime among both Member States and interest groups. To strengthen its understanding of the subject, DGXI sponsored two consultancy studies in 1995-96 on legal and economic aspects of the issue (ENDS Report 256, pp 39-40 ). It also held consultation meetings with other DGs, Member States and interest groups.
The Commission's collective decision in January 1997 to approve the preparation of a White Paper was something of a victory for Environment Commissioner Ritt Bjerregaard, after speculation that opposition to EC liability rules from key Member States and industry groups might have brought the initiative to a halt.
The White Paper will present proposals for a core set of liability rules at EC level. Member States would be allowed to retain some rules of their own, provided they complied with the EC rules and any supplementary rules were stricter. The objective would not be complete harmonisation, but a framework around which national legislation could coalesce instead of drifting further and further apart.
If the White Paper is adopted by the college of Commissioners, a public debate on its proposals would be accompanied by DGXI drafting a Directive to put them into effect. If this, in turn, was approved by the Commissioners, the draft Directive would then have to go through the extended decision-making procedure involving the Council of Ministers and the European Parliament before it could become law.
Ultimately, a qualified majority would be needed in the Council, then a period of 18 months or so for implementing legislation to be enacted in each Member State. So there are still many rounds to go before an EC regime could become law, with 2002-3 probably being the earliest realistic date for this to happen.
Given the formidable opposition to any kind of EC liability regime, it also remains possible that the entire project will be derailed. If this happens, however, there is every sign that national liability rules will continue to tighten and that liability articles will be written into other, sectoral Directives - such as those proposed in the past for hazardous waste, landfills and genetically modified organisms, but which were deleted in favour of a future single, consistent regime.
Many key elements of the liability rules favoured by DGXI were outlined by Ms Bjerregaard and her officials in 1995-96 (ENDS Report 260, pp 38-40 ). Drafting of the White Paper has inevitably reopened some of the debate within the Commission, and so nothing can be taken for granted. Nevertheless, the package is likely to include the following:
In mid-1997, two short consultancy studies were undertaken on contaminated sites and damage to natural resources. A new round of consultation meetings was launched in the autumn involving DGXI, other Directorates, Member States and industry and environmental groups. With the results of these meetings in mind, work is now at the stage of more advanced internal Commission consultations, based on detailed drafts of the White Paper. There is still more of those to come, plus negotiations between the private offices of the 20 Commissioners, before a debate can take place in the college.
Recent debate appears to have focused on issues such as how to define the cut-off date for future damage - the options including the dates of a pollutant release, the occurrence of an incident, or the discovery of damage - how to implement a liability regime in cases of damage to natural resources, how best to operate a fair system for apportioning liability, and the cost of any proposals.
Considerable pressure is bound to be applied on the issue of cost, as is now the case with most EC environmental proposals. In the case of liability, however, it is extremely difficult to make intelligent estimates of the marginal cost of an EC regime which would co-ordinate, and in many respects simply confirm, existing national rules and which would apply to future damage whose scale is impossible to predict. Nevertheless, several Commissioners will need reassurances that an EC regime will not be ruinously expensive.
The Commission debate has to be seen in the context of EC arithmetic. As of 1997, the opponents of an EC regime were the UK, Germany and France. Support of various kinds had been voiced by Austria, Belgium, Finland, Greece, Italy, Luxembourg, the Netherlands, Portugal and Sweden. Denmark seemed to favour a common regime in principle, but subject to qualifications about its content. Ireland and Spain seemed not to have taken positions either way.
All of that has to be seen as informal, however, until definite legislative proposals are on the table. A blocking minority under the qualified majority voting rules would require either three large Member States, as seemed to be the position last year, or two large Member States plus one or two smaller ones. The key political question is therefore whether the new governments elected during 1997 in the UK and France will take the same view as their predecessors on the issue, or change sides.