EUの環境責任指令の適用と課題

抄録

The European Community (now European Union) adopted in April 2004 Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage. The purpose of the Directive is to establish a common legal framework of environmental liability based on the ‘polluter-pays’ principle within the EU, to prevent and remedy environmental damage. Although the environmental damage could affect various countries and international society cooperates to protect global environment such as climate change or marine pollution, there is no binding international treaty which regulates liability for environmental (per se) damages. Even the International Law Commission could adopt the Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities in 2006 as a non-binding principle. However, recently the EU involves the neighbouring countries for protection of marine environment based on the Marine Strategy Framework Directive and the influence of the EU law is spreading out. This means, the EU’s Environmental Liability Directive could become a model for an international treaty on universal liability regime for environmental damage.

In this Article, firstly, I briefly explain the contents of the Environmental Liability Directive in order to clarify the characteristics of this Directive. This Directive aims at preventing and remedying environmental damages to water, land and protected species or natural habitat, and does not affect rights of compensation for traditional damage granted under relevant international civil liability treaties. According to the ‘polluter-pays’ principle, an operator should bear the cost of necessary preventive or remedial measures. The competent authority of the Member States should ensure the proper implementation and enforcement of the scheme provided for by this Directive (administrative approach).

Secondly, I analyse some problems implementing the Directive which were also mentioned in the Commission Report 2010, other studies carried out by private institutions and Member States’ reports submitted to the Commission. The most important and basic point is the Directive does not prevent Member States from maintaining or enacting more stringent provisions. If a Member State adopts more stringent measure than the Directive and other Member States, private companies hesitate to enter into the market of that Member State and such a situation could disturb establishing the common market of the EU.

Lastly, I make a proposal for possible amendments of the Directive.