Editorial note

Directive 2004/35/EC of 21 April 2004 establishes a framework of environmental liability based on the polluter pays principle, to prevent and remedy environmental damage (Article 1). The Directive defines several terms to be used in its applications, including ‘environmental damage’ (Article 2(1)); ‘damage’ (Article 2(2)); ‘occupational activity’ (Article 2(7)); ‘preventive measures’ (Article 2(10)); ‘remedial measures’ (Article 2(11)); and ‘costs’ (Article 2(16)).

The Directive applies to environmental damage and to any imminent threat of such damage caused by any of the occupational activities listed in Annex III. Damage to protected species and natural habitats caused by any occupational activities other than those listed in Annex III, and any imminent threat of such damage, is also covered whenever the operator has been at fault or negligent (Article 3). The Directive does not cover environmental damage resulting from an armed conflict or a natural phenomenon (Article 4(1)). The Directive does not apply to environmental damage or threat of such damage in respect of which liability is regulated under any of the international conventions listed in Annex IV (Article 4(2)). Other exceptions include nuclear damage (covered by either the Euratom Treaty or falling under one of the international liability regimes listed in Annex V) (Article 4(4)). The Directive applies to damage caused by pollution of a diffuse character only if it is possible to establish a causal link with activities of an individual operator (Article 4(5)). Activities whose main purpose is to serve national defence or international security or the sole purpose of which is to protect from natural disasters are excluded from the application of the Directive (Article 4(6)).