Elena Emilia Stefan
LESIJ NO. XVII, VOL. 2/2010
DOCUMENTS PRECEDING THE ADOPTION OF DIRECTIVE
2004/35/EC TRANSPOSED IN THE ROMANIAN LAW BY
GOVERNMENT EMERGENCY ORDINANCE NO. 68/2007 ON
The European legislation realized in 2004 one of the historical challenges of EU
environmental legislation. The Community law has had long before the intention to regulate the legal
regime of environmental damage, facing though many obstacles: the technical complexity of this
task, the opposition of states and sectors affected by the system, including ideological factors and the
supremacy of the precautionary principle in the area of environmental law. The regime proposed
considers that the environmental liability is based on the “polluter pays” principle, but also on
principles 13 and 16 of the Rio Declaration (1992) on Environment and Development which
established, on one hand that subjects who pollute, should in principle bear the cost of pollution, and
on the other hand, imposed an obligation on states, to develop the national law regarding liability
for environmental damage and compensation for victims of pollution and environmental
degradation. The Directive is the result of 15 years of attempts to change and adapt the liability
regime to the specificity of environmental damage and to exploit developments in this context,
especially in the prevention and remedying area; it is an attempt of “green revolution” of the tort
liability system. By this normative act, the European Community has known for the fi rst time in its
history, a regulation dealing, in a horizontal and systemic manner, the problem of preventing and
remedying the environmental damage. The Directive succeeds to establish reference points for the
harmonization of the national legislation on measures for preventing and remedying environmental
damage at EU level, ensuring a minimum level of legal and administrative rules, on the matter.
Keywords: environment, damage, liability, Directive 2004/35/EC, “polluter pays” principle
Although the Treaty establishing the European Economic Community1 did not stipulate
competences in the sphere of environmental protection, the awareness of the need for Community
action in this regard took shape through the first Environmental Action Programs at Community
level, materialized in statements / resolutions of the Council of European Communities and of
Member States2 representatives.
The European Community competence to adopt environmental protection measures was
included in the Treaty of Rome, simultaneously with the adoption of the Single European Act3,
∗ Lecturer, Ph.D candidate, ”Dimitrie Cantemir„ Christian University
1 Adopted at Rome on March 25, 1957 and entered into force on January 1st, 1958.
2 Milena Tomescu, Serban- Alexandru Stanescu, ”Condiiile r<spunderii juridice pentru daune aduse
mediului potrivit Directivei 2004/35/CE”, Revista Român< de Drept al Afacerilor 6 (2006): 48.
3 Signed in Luxembourg on February 14, 1986 and in Hague on February 28, 1986 and entered into force on
July 1st, 1987.