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Environmental damage and applicability of the ELD
The notion of ‘environmental damage’, which is pivotal to the ELD, is subject to a lengthy definition in Article 2(1). It includes, somewhat simplified, the following three kinds of damage: damage to protected species and natural habitats; damage to water; and land contamination.
‘Damage to protected species and natural habitats’ comprises any damage that has significant adverse effects on reaching or maintaining favourable conservation status of such habitats or species. The significance of such effects is to be assessed with reference to a baseline condition and taking account of certain criteria set out in Annex I. It appears to be a common misunderstanding that the ELD only applies to the most severe cases of biodiversity damage.102 That view is not consistent with the criteria set out in the Annex or, for that matter, with the ordinary meaning of the word ‘significant’.
‘Protected species and natural habitats’ are, somewhat simplified, species mentioned or listed in the Birds Directive (now Directive 79/409/EEC) or listed in the Habitats Directive (92/43/EEC), as well as listed natural habitats and the breeding sites or resting places of listed species.W3 Individual Member States may decide to include additional habitats or species, which the Member State designates for equivalent purposes as those laid down in these two Directives. Adverse effects resulting from an act which was expressly authorised by the relevant authorities are in many cases exempted.
‘Water damage’ is, with some exceptions/o4 any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, as defined in the Water Framework Directive (2000/60/EC), of the waters concerned.
‘Land damage’ is any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on, or under land, of substances, preparations, organisms, or micro-organisms. It is the only form of damage which presupposes a risk to human health. Damage as such is understood as a measurable adverse change in a natural resource or measurable impairment of a natural resource service and may occur directly or indirectly. (Art 2.)
However, the ELD is not applicable to all cases of damage that fall under the notion of environmental damage as just defined. It is only environmental damage caused by one of the occupational activities listed in Annex III, and any imminent threat of such damage occurring by reason of any of those activities, that is covered without restrictions. In these cases strict liability applies. Damage caused by occupational activities other than those listed in Annex III is only covered if the damage   
has been caused to protected species and natural habitats. In these cases it is also required that the operator105 has been at fault or negligent; it is thus not a strict liability. The same goes for any imminent threat of such damage occurring by reason of any of those activities. It is important to note that in all cases it is only damage caused by occupational activities that is covered.w6 (Art 3.)
An important feature of the ELD is that it is not concerned with injury to persons, damage to private property, or economic loss. These types of damage are all left to the Member States to regulate.
Certain kinds of environmental damage are exempted from the scope of the ELD even when they fall under the above definitions. That applies, inter alia, to environmental damage or an imminent threat of such damage caused by an act of armed conflict or by a natural phenomenon of exceptional, inevitable, and irresistible character. The ELD does also not apply to environmental damage or to any imminent threat of such damage arising from an incident in respect of which liability or compensation falls within the scope of any of the international conventions listed in Annex IV provided that they are in force in the Member State concerned. The five conventions listed in the Annex relate to liability for oil pollution damage or to damage caused in connection with carriage of dangerous goods.
Exemptions also apply with respect to nuclear risks or environmental damage or imminent threat of such damage caused by the activities covered by the EURATOM Treaty or caused by an incident or activity in respect of which liability or compensation falls within the scope of any of the international instruments listed in Annex V. These are all instruments that deal with liability for damage caused by nuclear activities or material. Also exempted is damage caused by national defence activities. (Art 4.)
With respect to environmental damage or an imminent threat of such damage caused by pollution of a diffuse character, the ELD only applies where it is possible to establish a causal link between the damage and the activities of individual operators (Art 4). The Court of Justice has pointed out that since the ELD does not specify how such a causal link is to be established, the Member States have a broad discretion in this regard.w The Court has also accepted the application of a presumption of a causal link between pollution found and the activities of certain operators due to the fact that their installations are located close to the pollution. However, in accordance with the polluter-pays principle, such a causal link may only be presumed where the competent authority has plausible evidence capable   
of justifying its presumption. The fact that the operator’s installation is located close to the pollution found together with a correlation between the pollutants identified and the substances used by the operator in question can constitute such evidence.
There are also temporal limitations to the ELD’s applicability. It does not apply to damage caused by an emission, event, or incident that took place before 30 April 2007, that is, the date by which the ELD was to be transposed by the Member States. Excluded is also damage caused by an emission, event, or incident which took place after that date but which derives from a specific activity that took place and finished before that date.109 If more than thirty years have passed since the emission, event, or incident that resulted in the damage, that damage is also not covered. (Art 17.)
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