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Obligations on operators and authorities
Where there is an imminent threat of environmental damage occurring, the operator shall, without delay, take the necessary measures to prevent or minimise that damage. If the imminent threat is not dispelled by the preventive measures taken by the operator, the latter must inform the competent authority of the situation. The authority may also at any time require the operator to provide information on any imminent threat of environmental damage or in suspected cases of such an imminent threat. The authority shall require that preventive measures be taken by the operator, and only if the operator cannot be identified, fails to comply with its obligations, or is not required to bear the costs under the ELD may the competent authority take these measures itself. As mentioned previously, the ELD does not require of national authorities that they take measures themselves; they are merely authorised to do so. (Art 5.)
In practice, it is not uncommon that the establishment of whether there is an imminent threat of environmental damage is a scientifically complex and timeconsuming operation. This can make it hard for operators, and even for competent authorities, to know when the ELD is applicable and hence what their obligations are.110
Where environmental damage has occurred the operator must, without delay, inform the competent authority and take all practicable steps to immediately control, contain, remove, or otherwise manage the relevant contaminants and/ or any other damage factors. It must also put forward proposals for the remedial measures it considers appropriate. The measures must be approved by the competent authority in accordance with Annex II, which sets out a common framework to be followed in order to choose the most appropriate measures to ensure the remedying of environmental damage. However, the competent authority has the right, at any time, to require the operator to take the necessary remedial measures or instruct the operator how the measures are to be taken. It may also alter environmental remedial measures previously decided without an initial proposal from the operator. But, unless the urgency of the environmental situation requires immediate action on the part of the competent authority, it may not determine remedial measures without first giving the operator the opportunity to be heard. The persons on whose land those measures are to be carried out must also be invited to submit their observations, and those observations must be taken into account by the authority.111 The competent authority may require the relevant operator to carry out its own assessment and to supply any information and data necessary. Only if the operator cannot be identified, fails to comply with its relevant obligations, or is not required to bear the costs under the ELD may the competent authority take the remedial measures itself, as a means of last resort. As with preventive measures, the authority is never obliged by the ELD to take remedial measures; only to require the operator to take such measures when possible. (Arts 6—7 and 11.)
Before a national authority decides to impose remedial measures on operators it must first carry out a prior investigation into the origin of the pollution found. In doing so it has discretion as to the procedures, means to be employed, and length of the investigation. Irrespective of the nature of the damage, the authority is also required to establish, in accordance with national rules on evidence, a causal link between the activities of the operators at whom the remedial measures are directed and the pollution.n2
Any decision which imposes preventive or remedial measures must state the exact grounds on which it is based and the operator concerned shall be informed of the legal remedies available. (Art 11.)
The ELD does not specify how a competent authority may oblige an operator to take the measures it has decided. In a case concerning exceptionally extensive pollution, the Court of Justice found it justified to make the use of the land of the operators concerned subject to the requirement that they implement remedial measures in relation to sites adjacent to that land which were in need of rehabilitation. This would be done in order to prevent other industrial activity, which might aggravate the damage or hinder measures aimed at remedying it, being carried out in the vicinity of those sites. This was acceptable even though the operators’ own land was not affected by the remedial measures because it had already been decontaminated or had never been polluted. Such a measure could be justified by the objective of preventing deterioration of the environmental situation in an area in which remedial environmental measures are implemented, or, pursuant to the precautionary principle, by the objective of preventing the occurrence or resurgence of further environmental damage to such land.n3
in Joined Cases C-379/08 and C-380/08 Raffinerie Mediterranee (ERG) and ENI ECLI:EU: C:2010:127, paras 51, 56, and 67.
Where environmental damage affects or is likely to affect several Member States, those Member States shall cooperate with a view to ensuring that preventive action and, where necessary, remedial action is taken (Art 15).
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