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Raffinerie Mediterranee (ERG) SpA v. Ministero dello Sviluppo economico,C-379/08, decided by Eurpoean Court of Justice
ECJ decision upon EC Directive on Environmental Liability:
Raffinerie Mediterranee (ERG) SpA v. Ministero dello Sviluppo economico,C-379/08, decided by Eurpoean Court of Justice
In this case the European Court of Justice (“ECJ”), for the very first time, gave its ruling on the European Parliament and Council Directive (EC) 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage and on polluter pay principle (“ELD”).[1] The case deals with the area of Priolo Gargallo area of Sicily. The Italian government had ordered remedial measure for the contamination caused by the many petrochemical companies established in the region. The companies claimed that the significant remedial measures were imposed without making any demarcation between past and present pollution or assessing responsibility of individual companies by not looking into the “polluter pays” principle now enshrined in EC law and in particular in ELD. Further that the there was no discussion with the companies.
The Italian courts referred the matter relating to the application of ELD to the ECJ. Question arose as to the application of the ELD as the directive is supposed to operate from 30 April 2007 and ECJ held that in a situation entailing environmental pollution, the conditions for the application ratione temporis of ELD with regard to the prevention and remedying of environmental damage are not met, such a situation is governed by national law, in compliance with the rules of the European Union Treaty, and without prejudice to other secondary legislation.[2]
Further the attention of ECJ was drawn to the question whether the action of Italian governmental agency under the national legislation to impose remediation actions on operators based on the claim that premises are located close to a contaminated area, even without conducting a preliminary investigation into the occurrence of the contamination or establishing a causal link between the damage and the operators in consonance with the “Polluter Pay” principle?
The court held that ELD does not preclude national legislation which allows the competent authority acting within the framework of the directive to operate on the presumption, also in cases involving diffuse pollution, that there is a causal link between operators and the pollution found on account of the fact that the operator’s installations are located close to the polluted area.[3] However, in accordance with the “polluter pays” principle, in order for such a causal link thus to be presumed, that authority must have plausible evidence capable of justifying its presumption, such as the fact that the operator’s installation is located close to the pollution found and that there is a correlation between the pollutants identified and the substances used by the operator in connection with his activities.[4]
Hence ECJ held that that environmental authority must, first, carry out a prior investigation into the origin of the pollution found, and it has discretion as to the procedures, means to be employed and length of such an investigation. Second, the competent authority is 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.[5]
[1] http://europa.eu/legislation_summaries/enterprise/interaction_with_other_policies/l28120_en.htm (Last accessed on 12.01.2011)
[2]http://eur-lex.europa.eu/Notice.do?val=513134:cs&lang=en&list=513134:cs,509217:cs,&pos=1&page=1&nbl=2&pgs=10&hwords=378/08~&checktexte=checkbox&visu=#texte (Last accessed on 12.01.2011)
[3] Ibid
[4] http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:113:0008:0009:EN:PDF (Last accessed on 12.01.2011)
[5] Supra n.8