INTRODUCTION

After many years of deliberations, the EU Environmental Liability Directive (EU Directive 2004/35/EC, ELD) entered into force in 2004. The Member States had until 2007 to transpose the Directive; however, due to difficulties in the process, full transposition was ultimately reached in 2010. As the ELD was first introduced over 10 years ago, it has already proven its added value and positive impact on the development of environmental policies in the EU. However, several implementation issues have arisen, and it is time to consider the future of the Directive and how to unlock its full potential.

As part of the Regulatory Fitness and Performance (REFIT) programme, the EU Commission has carried out an evaluation of the ELD. The results of this check were published in a 2016 report on the relevance, effectiveness, efficiency, coherence and EU-added value of the Directive. The evaluation showed, amongst other things, that the Directive remains relevant, but its effectiveness is still hampered by several challenges.

The main focus of this chapter will be on the future of the ELD: what challenges does the Directive face, and how can we start finding solutions in order to ensure its effectiveness? This mostly entails questions on the Member States’ application of the Directive and its relation to other EU environmental legislation.

Following several more general criticisms of the ELD, we will take a look at the evaluation of the Directive by the Commission. This includes both the general implementation reports and the most recent evaluation in the context of the REFIT programme. After finalising this last report in 2016, the Commission adopted a Multi-Annual Work Programme for 2017–2020, with the intention of making the ELD more fit for purpose. The relevant objectives in this work programme will be taken into consideration, including steps that have already been taken. We will mostly take a critical view on the measures intended to improve the implementation of the ELD. This will result in some ideas and suggestions for the future development of the ELD. The last part of the chapter will consist of this look forward, searching for opportunities and ways to counter the current challenges and imagining a better European framework for environmental liability.