Suchergebnisse

The 'polluter pays' principle (PPP) is one of the four tenets of the European Union's (EU) environmental policy. Where the PPP is successfully applied, the polluter bears the cost of pollution, including the cost of prevention, control, and removal of pollution, as well as the cost it causes for the society and the respective population. The PPP is to discourage polluters from environmental pollution by holding them liable for the pollution by means of having the polluters, and not the taxpayers, bear the remediation cost. This paper juxtaposes the application of the PPP in the case law of the Court of Justice of the European Union and Croatian jurisprudence. Following an overview of the PPP in EU law, the paper briefly reviews two CJEU cases (Van de Walle and Erika) that concern the question of whether liability for incidental pollution is attachable to both the manufacturer of dangerous material and the polluter. Next, the paper examines the application of the PPP in the Croatian judiciary, where – contrary to the EU environmental policy – the remediation cost being borne by the taxpayers is seemingly the norm (especially where the polluter cannot bear the remediation cost due to insolvency).

This article traces the evolution of polluter-pays-principle (PPP) as an economic, ethical and legal instrument and argues that it has the potential of effecting global responsibility for adaptation and mitigation and for generating reliable funding for the purpose. However, the contradiction is that while it rests on neoliberal market principles, the UN Framework Convention on Climate Change did not include the PPP as its provision though the principle of "common but differentiated responsibility based on respective capabilities" (Article 3.1) implicitly recognizes this. The article raises the basic question that under a free-market global system: why should the polluters not take responsibility of their actions so that the global society does not suffer? The Organization of Economic Cooperation and Development (OECD) countries apply this PPP in many of its forms. Some developing countries are also applying it albeit still more as a governmental rather than polluter responsibility. Currently there is an emerging consensus that a carbon tax should be applied globally to address the intractable problem of climate change. Since the problem relates to a global commons, the issue is how to apply the PPP globally yet equitably. This article brings in Caney's proposal that as complementary to the PPP. The "ability to pay principle" (APP) can take care of emissions of the past agreed by the Parties and current and future legitimate emissions of the disadvantaged countries and groups of people. He calls the latter poverty-sensitive PPP. While PPP is primarily a market principle, APP is a principle of justice and equity. That polluters should pay the social and environmental costs of their pollution reflects the most fundamental principles of justice and responsibility.

The Environmental Liability Directive (ELD), which was adopted in April 2004 and should be transposed by Member States before 30 April 2007, seeks to apply the 'polluter pays' principle by forcing operators who are responsible for environmental damage to pay for its remediation. ELD's provisions apply to water, land and biodiversity. The fact that Member States enjoy great latitude in transposing the Directive has two direct consequences. First, it delays the transposition process owing to the debate between stakeholders over controversial clauses in this Directive. A few EU countries, including the UK, Ireland, and Austria risk missing the deadline. Second, this situation could lead to a very multifarious liability régime in Europe and even among different regions in a single country in federal states, which would clearly complicate monitoring and enforcement of the new law. The indirect consequence is that differing liability régimes risk failing to meet the Directive's objective of applying the 'polluter pays' principle. As it stands most Member States seem to take advantage of the leeway the Directive offers by implementing weak legislation which only complies with the bare minimum requirements of the EU's legislative text. Those countries are missing the opportunity to implement the 'polluter pays' principle.