to nature, mainly when the imminent threat or damage concerns protected species
and natural habitats.
The two liability systems differ mainly from three points of view: the
operators involved, the type of liability and the category of environmental damage
Certain activities are, under any circumstance, excluded from the
Environmental Liability Directive’s field of application: activities performed
mainly in the interest of national defense or international security, activities whose
sole purpose is to ensure protection against natural disasters and activities in the
Operators may benefit directly from certain exceptions and defenses (for
example force majeure, armed conflict, third party intervention) and defenses
introduces following the transposition of the Environmental Liability Directive
(for example permit defense, state of the art defense).
Should there be an imminent threat of environmental damage, the operators
have to take preventive action, they must remedy the environmental damage once
it has occurred and to bear the costs under the “polluter pays” principle. In some
cases where operators fail to act so, or are not identifiable, or have invoked
defenses, the competent authority may step in and carry out the necessary
preventive or remedial measures.
Most procedural obligations in EC environmental law are not accompanied by
any express provisions regulating the effect of non-compliance, and national
courts will therefore normally have to seek recourse to the aim and the purpose of
the obligation in order to determine whether the infringement requires non-
application of the contested act.
According to article 6 paragraphs 3-4 of Directive 92/43/EC on the
conservation of natural habitats and of wild fauna and flora13) an environmental
12) C. Pirotte, in Les responsabilités environnementales dans l’espace européen. Point de vue
franco-belge, Bruylant Publishing House, Bruxelles, 2006, pp. 655-665; see also A. Kiss, J.-P.
Beurier, Droit international de l’environnement, Pedone Publishing House, Paris, 2004, pp. 460-
461. 13) EC Directive, Directive 92/43/EC on the conservation of natural habitats and of wild fauna
and flora, Official Journal of the European Communities, L 206, July 22, 1992, Brussels, pp. 7-50.
“3. Any plan or project not directly connected with or necessary to the management of the site but
likely to have a significant effect thereon, either individually or in combination with other plans or
projects, shall be subject to appropriate assessment of its implications for the site in view of the
site's conservation objectives. In the light of the conclusions of the assessment of the implications
for the site and subject to the provisions of paragraph 4, the competent national authorities shall
agree to the plan or project only after having ascertained that it will not adversely affect the
integrity of the site concerned and, if appropriate, after having obtained the opinion of the general
4. If, in spite of a negative assessment of the implications for the site and in the absence of
alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of
overriding public interest, including those of a social or economic nature, the Member State shall