15 th ELD Government Experts Meeting 13 May 2015 Centre Borschette, Salle 1A. Commission Report under Article 18(2) ELD and REFIT Evaluation

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1 15 th ELD Government Experts Meeting 13 May 2015 Centre Borschette, Salle 1A Commission Report under Article 18(2) ELD and REFIT Evaluation

2 Legal basis and REFIT requirements Article 18(2) ELD: Report on the experience gained in the application of the Directive in the EU, taking account of some review points REFIT Communications (newest on 19th May 2015): establishing main evaluation criteria: effectiveness, efficiency, relevance, coherence, EU-added value

3 Information sources 27 Member States reports ELD consultants studies in 2013/14, 2 ELD studies in 2012/13 Commission 2010 ELD report: Conclusions Feedback from ELD government experts and ELD stakeholders

4 Basic information on ELD Purpose, principles, main requirements ELD report 2010, 7EAP, SOER 2015 Transposition of the ELD Application: features and discernible trends

5 Application in facts and figures, as reported by Member States Overall number of ELD cases per MS ELD cases according to damage category (nature, water, soil) ELD cases according to damaging activity (Annex III, fault-based) ELD cases pursuant to other implementation features (request for action, judicial review, duration, costs)

6 Reported ELD cases Number of ELD cases per Member State vary 100 considerably from: 95 annual cases 10 annual cases, 3 annual cases to less than 1 annual case. Some Member States have up to date Number no of ELD cases

7 Reported ELD cases Biodiversity, Water, Land Damage Cases Number of ELD cases detailed list (1): MEMBER STATE Biodiversity cases Water cases Land cases Austria Belgium Bulgaria Croatia No reporting obligation No reporting obligation No reporting obligation Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland 8 2 0

8 Reported ELD cases Biodiversity, Water, Land Damage Cases Number of ELD cases detailed list (2): MEMBER STATE Biodiversity cases Water cases Land cases Italy Latvia Lithuania Luxemburg Malta Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden United Kingdom

9 Reported ELD cases Total cases and Judicial Review cases MEMBER STATE Total Case Number (including dismissed cases) Number of Judicial Review Cases Austria 4 2 Belgium 1 0 Bulgaria 4 1 Croatia No reporting obligation Cyprus 2 0 Czech Republic 15 0 Denmark 0 0 Estonia 16 >1 Finland 2 1 France 0 0 Germany 61 0 Greece 52 1 Hungary 573 >5 Ireland 10 0

10 Reported ELD cases Total cases and Judicial Review cases MEMBER STATE Total Case Number (including dismissed cases) Number of Judicial Review Cases Italy 17 (~2,000) 0 Latvia 16 1 Lithuania 4 0 Luxemburg 0 0 Malta 2 1 Netherlands 0 0 Poland Portugal 8 0 Romania 4 0 Slovakia 0 0 Slovenia 0 0 Spain Sweden 5 1 United Kingdom 19 0

11 REFIT Evaluation - Effectiveness Patchwork of environmental remediation in the EU (legislation, implementation) Significance threshold national legal frameworks and interpretation Scope of environmental damage Scope of strict liability

12 REFIT Evaluation Effectiveness (questions) Why are there such large differences between MS in terms of number of ELD incidents? What progress have Member States made over time towards achieving the objectives set out in the Directive? Does the Directive lead to a level playing field in terms of preventing and remedying environmental damage across the EU? Did the Directive achieve any other significant results? Changed precautionary behaviour of operators? Insurance developments? Can any obsolete provision in the Directive be identified and if yes, why is this provision obsolete? Is the scope of the Directive correct with regards to strict liability? Is the scope of the Directive correct with regards to environmental damage? To what extent is the significant threshold hampering the effectiveness of the Directive?

13 REFIT Evaluation - Efficiency Remediation (and prevention) costs and administrative costs vs. environmental benefits Cost-effective implementation Permit and development risk defences Financial security: Sufficiency of offer and demand Problems: large-scale accidents, operator's insolvency

14 REFIT Evaluation Efficiency (questions) What are the costs and benefits (monetary and non-monetary) associated with compliance with the Directive in the Member States and in the EU? Are external costs being efficiently internalised? Taking account of the objectives and benefits of the Directive: is there evidence that it has caused unnecessary administrative burden? Are there significant cost differences between Member States, what is causing them? What good practices in terms of cost-effective implementation of the Directive in Member States can be identified? Is sufficient financial security for ELD liabilities of Annex III operators available in all MS? Should there be more harmonisation of the financial security instruments/mechanisms at EU level? Are the optional defences (permit defence and state-of-the-art defence) contributing to efficiency and/or affecting the effectiveness of the Directive?

15 REFIT Evaluation - Coherence Coherence between ELD and EU environmental legislation (EIA Directive, IED, waste management) Coherence between ELD and Habitats and Birds Directives Coherence between ELD and Water Framework Directive Coherence between ELD and IMO Conventions and Nuclear Conventions

16 REFIT Evaluation Coherence (questions) To what extent is the Directive satisfactorily integrated and coherent with other parts of EU environmental law/policy? Are there overlaps, gaps and/or inconsistencies that significantly hamper the achievements of the objectives? In particular, to what extent are there inconsistencies or incoherent requirements between the Directive and the Habitats Directive? Is the Directive coherent with respect to the application of the International Conventions listed in Annex IV (mainly IMO Conventions) and Annex V (Euratom and Nuclear Conventions)? Are other instruments eligible for incorporation into Annexes IV or V? Is the Directive coherent with the experience gained within relevant international fora and Conventions as well as results of any incidents of environmental damage caused by GMOs?

17 REFIT Evaluation - Relevance Objectives still relevant, only some formally obsolescent provisions (reporting) Developments and trends in environmental damage (decrease?) Potential for better implementation of preventive and remedial objectives Capacity building and support measures

18 REFIT Evaluation Relevance (questions) Are the objectives of the Directive still relevant? Are the key problems and concerns about preventing and remedying environmental damage still properly addressed by the ELD legislation? How relevant is the Directive to achieving high level of environmental protection and preventing/remedying environmental damage in the EU?

19 REFIT Evaluation EU-added value Implementation of polluter-pays principle and strict liability across EU Remediation to the baseline condition (primary, complementary, compensatory) Inclusion of biodiversity damage Implementation of international obligations (Nagoya Kuala Lumpur Supplementary Protocol; Kiev Protocol)

20 REFIT Evaluation EU-added value (questions) What has been the EU added value and what do you think would happen if EU action were repealed? Do the issues addressed by the Directive continue to require action at EU level? What has been the practical significance of the Directive as compared to (pre-)existing national legislation? If the Directive was not in place, what would be the response needed to implement the international obligations under the Nagoya Kuala Lumpur Supplementary Protocol and would a new implementing instrument need to be developed and adopted at EU level in order to comply with the Nagoya Kuala Lumpur Supplementary Protocol?

21 Main achievements Introduction of biodiversity damage Extension of environmental clean-up to baseline remediation (primary, complementary, compensatory) Harmonisation of polluter-pays principle, strict liability, right to request remedial action Better enforcement of national liability laws and development of insurance

22 Main challenges Availability of data on ELD cases Awareness of the Directive by main stakeholders and practitioners Ambiguities around key concepts and definitions, such as the 'significance threshold' Exceptions and defences

23 Potential for improvement Awareness raising and information exchange (stakeholders and practitioners) Capacity building and support measures, in particular trainings, expert networks, assessment centres EU guidance documents promoting harmonised interpretation EU register of ELD cases (baseline condition, significance threshold, remedial measures, damage costs, etc.)

24 General appreciation of the ELD Has the ELD worked or not? Should we continue on the basis what we have achieved? Is there a need for amendment? Could we abolish the ELD?