Environmental Liability Directive 5 th Stakeholder Workshop Multi-Annual

Environmental Liability Directive 5 th Stakeholder Workshop Multi-Annual ELD Rolling Work Programme 2017 -2020 (MAWP) Maison des Associations Internationales Rue Washington 40, 1050 Brussels, 4 October 2017

Overview Content of presentation: • REFIT Evaluation and Commission Report 2016 • Multi-Annual Work Programme 2017 – 2020 • MAWP Developments 2017 • MAWP Outlook 2018

ELD REFIT Evaluation (1) Key Question "Pursuant to the Commission's Regulatory Fitness and Performance Programme (REFIT), the purpose of this evaluation is to examine to what extent Directive 2004/35/EC on environmental liability … remains fit for purpose with regard to the prevention and remedying of environmental damage and whether it delivers the intended results. "

ELD REFIT Evaluation (2) Key Finding "The overall finding from the submitted information and data confirmed the conclusion from the previous Commission report on the ELD of October 2010 of a significant variance between Member States. Despite the efforts undertaken so far by the Commission and the stakeholder groups to create a better level field by non-legislative measures, not only the transposition of this framework directive but also the implementation still varies greatly. This is the reason why the topic of the remaining 'patchwork' situation as regards environmental liability was broadly discussed in several of the ELD implementation and evaluation studies. "

ELD REFIT Evaluation (3) Main challenges • Availability of data on ELD cases and national implementation • Awareness of the Directive by main stakeholders and practitioners • Ambiguities around key concepts and definitions, such as the 'significance threshold' • Exceptions and defences

ELD Report (1) – Action Plan/Recommendations • Support MS implementation with proactive information and capacity building actions such as • awareness raising and information, • stakeholder and practitioner exchange and communication at all levels, • training seminars and an assessment centre or experts network ("Clearing house" function) for all practitioners • Review the interpretation of key concepts and definitions of the Directive, in particular in relation to "significance", "favourable conservation status", "preventive action", "baseline condition" etc. with a view to promote more uniform interpretation and a more level playing field

ELD Report (2) – Action Plan/Recommendations • Establish an EU register of ELD cases to help practitioners in practical implementation (competent authorities, financial security providers, operators, NGOs, the Commission) • Develop an agreed set of indicators for purposes of future regulatory monitoring and gather and publish data on the application of the Directive in the MS in view of the next REFIT evaluation (effectiveness, efficiency, coherence) in relation to the overall situation in the EU

ELD Multi-Annual Work Plan (1) • Establish an ELD Multi-Annual Work Plan 2017 -2020 based on the conclusions and recommendations in the ELD report and REFIT evaluation (Action Plan) between the Commission and the Member States • Adoption at the 17 th ELD government experts meeting on 28 February 2017 • ELD MAWP is supported by external technical assistance

ELD Multi-Annual Work Plan (2) Main working areas in MAWP 2017 -2020: • Improving the evidence base for the evaluation of the ELD: concept development 2017; testing 2017/2018; implementing the concept 2018 • Supporting tools and measures for more even and increasing implementation of the ELD: developing a better common understanding of key terms and concepts 2017; elaboration and implementation of an integrated capacity building concept including ELD training 2017, 2018 • Ensuring sufficient availability and demand for financial security to cover ELD liabilities: investigation on availability and demand of sufficient financial security for ELD liabilities 2018, 2019

ELD Multi-Annual Work Plan (3) Contractual support through Framework Contract 2017 -2020 The operational objective of the contract is to assist directly and exclusively in the implementation of the Work Programme for the ELD implementation 2017: 1. Improving the evidence base for the evaluation of the ELD, so that empirical knowledge about the functioning of the ELD yields a clearer picture 2. Supporting the implementation of the ELD so that the potential of the ELD is significantly better exploited and the ELD is used more evenly across all Member States as a standard instrument of liability in case of natural resources damage

MAWP Developments 2017 (1) Objectives of Task 1 • ELD assessment framework with indicators as basis for an EU tool responding to the results of the REFIT Evaluation • EU tool to improve the evidence base for future evaluation and better understanding and implementation Process • • • Desk research: data sources in Member States, other Consultation: data gathering, data testing Functional analysis Results • ELD IT tool with four main features: map viewer, dashboard, country fiches, data entry form – for further consideration

MAWP Developments 2017 (2) Objectives of Task 2 • Common understanding of ELD key terms and concepts • To provide an overview of those key terms and concepts that have been interpreted inconsistently or lack coherence • To provide best practice examples and useful recommendations Process • Establishment of a preliminary list of key terms and concepts; discussion at 17 th ELD government experts meeting; stakeholder consultation in July and August; draft final document with the support of a drafting group Results • Draft final Common Understanding Document – for final comments

MAWP Developments 2017 (3) Objectives of Task 3 • • • To review existing ELD trainings, To identify future training needs and To develop a concept for future and more effective ELD training and capacity building. Process • Desk research; questionnaire; testing with ELD government experts; on line survey with ELD experts and stakeholders Results • Out of 11 options, 2 options highest ranking and 2 options involving lowest costs – to be discussed

MAWP Outlook 2018 (1) Depending on the final discussions and decisions: Work in 2018 will continue the work of 2017 in all work areas: • ELD IT tool for better evidence base (contractual support needed); • Common understanding of ELD (contractual support probably no more needed); • Administrative support tools (contractual support needed). In addition, probably: • Work on stepping up financial security (contractual support needed)

MAWP Outlook 2018 (2) • EU ELD IT tool: Map viewer, dashboard, country fiches, ELD registry: Where are we? What needs still to be done? • Common Understanding Document: With or without additional terms and concepts? Does it need further work or can it be agreed? • Administrative support tools: • Face to face training (second highest ranking) • Environmental risk and damage evaluation IT tool (highest ranking – high costs) • Webinar (third lowest ranking – very low costs) • Reliance on existing networks (fifth highest ranking – virtually no costs)

MAWP Outlook 2018 (3) Financial security: • IMPEL projects on Financial Provision in 2016 and 2017 (practical guide - draft), consideration of 2018 project on applicability of Irish and Spanish tools in other legislation • Investigation of current state of play on financial security for ELD liabilities in 2018, covering: • Exploration of the situation in 28 Member States, as regards functionality, offer and demand • Drawing conclusions and providing concrete recommendations, with special regard to: • • • competent authorities assessing the financial viability of operators enhancing own risk analysis by operators phasing in gradually mandatory financial security and/or mutual/pool

http: //ec. europa. eu/environment/liability/index. htm E: mail: Hans. Lopatta@ec. europa. eu • Member States’ reports by April 2013: • • • Annex VI ELD Questionnaire useful? Records of ELD cases • International instruments in Annexes IV and V (IMO, Euratom), considering eventual studies by the IOPCF GMOs: Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress under the Cartagena Protocol Application of ELD to protected species/natural habitats Instruments for incorporation into Annexes III, IV and V Mandatory vs. voluntary security; financial security in particular for large scale accidents (2010 ELD Report) Thank you for your attention ! • Commission report by April 2014: • •