Environmental Liability


  • Natalia Charalampidou, LL.M. (Heidelberg), Attorney at law, Adjunct lecturer, Faculty of Law, University of Nicosia
    Neophytou & Neophytou LLC - Advocates, Legal Consultants

Environmental liability is regulated in Cyprus through Law on Environmental Liability with regard to the Prevention and Remedying of Environmental Damage No. 189 (I)/2007 (Official Gazette No. 4154 Pt. I of 31.12.2007 - hereinafter “Law No. 189(I)/2007”), which was done for the purposes of implementing Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ L 143 , 30.4.2004 p. 56 - hereinafter “Environmental Liability Directive”). The main points of this legislation are discussed below.

I. What are the protected values?

The object set out in Law No. 189(I)/2007 is the implementation of the Environmental Liability Directive and therefore all recitals of its preamble are to be taken into consideration for the purposes of understanding and interpreting the object of national legislation. The protected values are twofold. On the one hand these are the natural resources. This stands for protected species and natural habitats, water and land (s. 2 Law No. 189(I)/2007). On the other hand are the services of natural resources. These are functions performed by a natural resource for the benefit of another natural resource or the public (s. 2 Law No. 189(I)/2007).

II. How are the protected values damaged?

Damage is given a broad definition, including any imminent threat thereof. It stands for a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly (s. 2 Law No. 189(I)/2007). For it to be of importance for the present legislation it must be caused by any of the occupational activities listed in Annex III of Law No. 189(I)/2007 (s. 3 (a) Law No. 189(I)/2007). Alternatively it can be caused to protected species and natural habitats and attributed to occupational activities other than those listed in Annex III as long as the operator has been at fault or negligent (s. 3 (b) Law No. 189(I)/2007). Lastly it includes cases of environmental damage from pollution of a diffuse character, as long as a causal link between the actual damage and the activities of specific operators can be proved (s. 3 (c) Law No. 189(I)/2007).

Turning to the limitation of applicability of Law No. 189(I)/2007, any environmental damage, including imminent threat thereof, caused by natural phenomena of exceptional, inevitable and irresistible character (s. 4 (1) (b) Law No. 189(I)/2007) or by acts of armed conflict, hostilities, civil war or insurrection does not fall under the provisions of said legislation (s. 4 (1) (a) Law No. 189(I)/2007). Further, same legislation does not apply to damages due to emission, event or accident that took place before December 31, 2007, even if these damages appeared after December 31, 2007 (s. 26 (a), (b) Law No. 189(I)/2007). Lastly, a limitation period of 30 years, that excludes the application of the provisions of Law No. 189(I)/2007, is foreseen (s. 26 (c) Law No. 189(I)/2007).

III. How are the protected values guarded?

Law 189(I)/2007 does not give private parties a right of compensation as a consequence of environmental damage or of an imminent threat thereof (s. 4 (2) Law No. 189(I)/2007). It does however impose mainly on operators precautionary and remediation duties, putting into practice the polluter pays principle, which in the national legislation has the same content as in the EU law (explanatory statement, Official Gazette No. 4085 Pt. VI of 13.7.2007, p. 768 (809)) and therefore differs from the German “Verursacherprinzip”. Operators bear the duty to take immediately the necessary preventive measures in cases of imminent threat or damage (s. 7 (1) Law No. 189(I)/2007). Competent authorities may request from operators to provide them with all necessary information on any imminent threat of damage or demand from operators to take all necessary preventive measures or give relevant instructions to operators or even to take themselves such measures (s. 7 (2) (a), (b), (c), (d) Law No. 189(I)/2007). All relevant costs shall be born by operators unless a third party caused the damage despite of all appropriate safety measures or the damage is due to an order given by a public authority (ss. 7 (4), 8 (1) (a), (b) Law No. 189(I)/2007). The relevant burden of proof is born by operator (s. 8 (2) Law No. 189(I)/2007).

In cases that environmental damage did occur, operators have the following duties. They must thoroughly inform without delay the competent authorities and take all practicable measures to immediately control, restrict, remove or otherwise manage the pollutants and/or any other factors that cause or may cause damage (s. 9 (1) (a) Law No. 189(I)/2007). Operators are further to put into effect all remedial measures, that were previously approved by competent authorities (ss. 9 (1) (b), 10 Law No. 189(I)/2007). Competent authorities may ask operators to provide additional information (s. 9 (1) Law No. 189(I)/2007). They may further take all requested or necessary remedial measures or ask operators to do so (s. 9 (2) (b), (c), (d), (e) Law No. 189(I)/2007). Operators bear the cost of remedial measures and the exceptions foreseen in preventive measures equally apply here (s. 11 Law No. 189(I)/2007). Lastly, when competent authorities have stepped in and took preventive or remedial measures themselves, these may decide not to recover the full costs where the expenditure required to do so would be greater than the recoverable sum or where the operator cannot be identified (ss. 8 (4), 11 (4) Law No. 189(I)/2007).

Cost of preventive and remedial measures is not to be underestimated. In 2000 alone clean-up costs for site contamination in the European Union were estimated to range between Euro 55 and 106 billion (Commission of the European Communities, Proposal for a Directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage, COM(2002) 17 final of 23.1.2002, p. 4 – hereinafter “COM(2002) 17”). In view of this Law No. 189(I)/2007 sets out an obligation of the Minister to encourage operators to have financial insurance for the purpose of complying with any preventive and remedial duty arising from same legislation, including cases that the operator declares bankruptcy, as per the provisions of the Environmental Liability Directive (s. 15 (1) Law No. 189(I)/2007).

IV. The players

The persons, who are involved in environmental liability, are mainly the operators and the competent authorities. Operator is any natural or legal, private or public person who operates or controls the occupational activity or to whom decisive economic power over the technical functioning of such an activity has been delegated by law, including the holder of a permit or authorisation for such an activity or the person registering or notifying such an activity (s. 2 Law No. 189(I)/2007). The taxpayers take the place of the operator, when they will be called to pay for preventive or remedial measures, when the operator is not to be found.

The coordinator of measures to be taken, is the competent authority. This is the Environmental Authority of the Ministry for Agriculture, Natural Resources and Environment (s. 2 Law No. 189(I)/2007). Apart from those third parties may play an important role through submitting to the competent authorities remarks on environmental damage and inviting these to take action pursuant to the present legislation. The submission of such remarks needs to be accompanied by information and data in support of the alleged environmental damage. Further, these persons need to be affected or be possibly affected by the alleged environmental damage or have sufficient interest to the relevant decision of the authorities (s. 14 (1), (2) Law No. 189(I)/2007). The trigger of this provision, was the fact that environmental assets, such as air and water, are often not subject to propriety rights.

Hence proper implementation and enforcement would fail, should such provision be missing (COM(2002) 17 final, p. 3).

V. Can the damage be concealed from the public?

Any undertaking that sells goods or services to the public is concerned about its reputation. Hence, environmental damage is not just causing extra costs due to the necessary preventive or remediation measures. It will equally cause damage to reputation of an undertaking towards the public, the consumers of its products and services. Therefore some might think prudent to sweep such damage under the carpet. Since April 30, 2004, that being the coming into force of Law on Free Access of the Public to Information Relevant to the Environment No. 119(I)/2004 (Official Gazette No. 3850 Pt. I of 30.4.2004 – hereinafter “Law No. 119(I)/2004”), this is not possible. Public authorities are obliged to provide information relevant to the environment in their possession to any applicant without the later to state or prove any interest (s. 3 (1) Law No. 119(I)/2004). This is however not without exceptions. The categories of information that are excluded from disclosure, are those that concern public safety, the operation of Justice, the right to fair trial, the confidentiality of commercial or industrial secrets, intellectual property rights, personal data and the protection of the environment. These categories are to be strictly interpreted (s. 8 (3), (4) Law No. 119(I)/2004).

VI. Can the damage be bought out?

It may cross one’s mind that not complying timely with any decision of the competent authorities or not taking any preventive or remedial measure is of no great disadvantage, since the costs will be born by the operator or more accurately by his insurer at the end of the day. The criminal provisions of Law No. 189(I)/2007 do change this attitude. Pursuant to those, any person who refuses or omits to take any precautionary or remediation measure in cases of environmental damage or imminent threat thereof, is guilty of a crime and may be imprisoned for no more than three years and/ or pay a monetary fine of Euro 342,000 (s. 20 (a), (b) Law No. 189(I)/2007). The same sanctions will be imposed to any person who refuses or omits to comply with any decision of competent authority taken pursuant to Law No. 189(I)/2007 (s. 20 (c) Law No. 189(I)/2007). In cases that the above are committed by a legal person and these have been committed under the consent and cooperation of any director, president, secretary or other officer, the later will be equally considered guilty of same crime. This applies equally in cases that committing such crime was facilitated through him being negligent (s. 21 Law No. 189(I)/2007).




Log in to your account or