Documents preceding the adoption of directive 2004/35/ectransposed in the romanian law by governmentemergency ordinance no. 68/2007 On environmental liability

• Author: Andrada Trusca
• Position: Lecturer, Ph.D candidate, 'Dimitrie Cantemir? Christian University
• Pages: 79-90

Elena Emilia Stefan

79

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

ENVIRONMENTAL LIABILITY

Andrada TRUŞC∗

Abstract

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

Introduction

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,

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∗ 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, ”Condiiile 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.