The damage to the environment that may be caused by the actions of companies and organisations is drawing increasing attention in legislation and regulations. And rightly, of course: it can involve very serious damage to, for example, protected flora, fauna or natural environments due to contamination of soil or water. On the other hand, personal injury and damage to third-party property can also occur.
The European Environmental Liability Directive (ELD), introduced in 2004, distinguishes between risk-related liability (unintentional damage caused by the specific character of the organisation) and culpable responsibility (damage caused by negligence or intent). In the various European countries, there are quite some differences of understanding in the implementation of the ELD. In the Netherlands, for example, only the mandatory part of it has been introduced because our national environmental legislation is deemed to cover the other aspects.
It practice, it is found that few parties (whether in the private or public sectors) are aware of the scope of the ELD. In so many words, it states that the polluter pays – and pays everything. Direct damage and consequential loss, such as the cost of cleaning up and decontamination. Your own damage, and that of third parties. Direct and indirect costs, such as legal assistance costs.
Now that the differences in implementation are proving to be so great, the European Union is considering imposing a mandatory nature on the insurance, including a duty of acceptance on the part of the insurance companies. The latter element is encountering resistance because that would take away the stimulus to prevent damage by means of effective measures. At the same time, of course, the costs of such insurance depend on the measures taken.
All in all, environmental liability is a specialised subject that calls for expert guidance. At Raetsheren, we have brought that specialisation under a separate department, which learns more with each new client and case. Accordingly, it can constantly improve its service to the clients. To learn more about our knowledge and experience, contact our office and ask to speak to one of the specialists.