OO. 9.2 Promote broad inclusion of biodiversity in environmental liability policy

Environmental liability aims at making the causer of environmental damage (the polluter) pay for remedying the damage that he has caused (the "polluter pays" principle).

Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 establish a framework of environmental liability based on the "polluter-pays" principle, to prevent and remedy environmental damage. The fundamental principle of this Directive is that an operator whose activity has caused environmental damages or imminent threat of such damage is to be held financially liable for preventing or remedying this damage. It is expected this regulation will induce operators to adopt measures and develop practices to minimize the risks of environmental damage so that their exposure to financial liabilities is reduced.

The Directive puts in place a comprehensive liability regime for damage to the environment. In particular, it introduces a comprehensive regime for damage to valuable elements of biodiversity - protected species and natural habitats.A permanent working group gathering regional and federal authorities has been established to ensure, to a certain extent and in respect of the share of competences between the different authorities, adequate and coherent implementation of the Directive.

National laws on liability for damage caused by activities that are hazardous to the environment will be thus different from the common civil liability regime as they will not concern the classical range of damages (human health or property) but will cover biodiversity damage as well as land damage or water damage. This will encourage parties concerned to take more precautions towards biodiversity.

Nevertheless, one of the major difficulties when implementing the directive concerns the evaluation of damage caused to biodiversity and this has to be done taking account of the cost of restoration or the cost of alternative solutions if restoration is not possible.
This should be taken into account when transposing the EU directive into national legislations.