Environmental Law 2024 Comparisons

Principles

EU environmental policy is based on the precautionary principle, the “polluter pays” principle, and the principles that preventative action should be taken and that environmental damage should as a priority be rectified at source.

• The precautionary principle is a risk management tool that enables restrictive actions to be taken when, following a thorough scientific assessment, uncertainty about a suspected risk to human health or to the environment remains.
• The “polluter pays” principle provides that those who are responsible for pollution should bear the costs of managing to prevent, control and remedy its damage to human health or the environment. It is implemented by the Environmental Liability Directive (ELD) (Directive 2004/35/CE). It is also increasingly provided for in EU secondary legislation via the establishment of extended producer responsibility (EPR) schemes.

Policies

Environmental policy has become increasingly important in EU policy-making. In December 2019, the EC launched the European Green Deal. This sets out the EU’s strategy to achieve climate neutrality by 2050 and to place environmental protection and sustainability at the heart of the EU’s economic growth strategy.

As part of the Green Deal, the EC proposed a zero pollution action plan, which envisions that by 2050 air, water and soil pollution will be reduced to levels no longer considered harmful to health and natural ecosystems. This is accompanied by a number of 2030 targets to speed up reducing pollution at source, including:

• improving air quality to reduce the number of premature deaths caused by air pollution by 55%;
• improving water quality by reducing plastic litter at sea (by 50%) and microplastics released into the environment (by 30%); and
• improving soil quality by reducing nutrient losses and chemical pesticides’ use by 50%.

The other 2030 targets include reducing:

• the EU ecosystems where air pollution threatens biodiversity by 25%;
• the share of people chronically disturbed by transport noise by 30%; and
• waste generation (including residual municipal waste) by 50%.

The Green Deal includes the Chemicals Strategy for Sustainability (CSS), which aims to protect the environment against hazardous chemicals. This involves a number of actions, including:

• banning the most harmful chemicals in consumer products except for essential use;
• phasing out non-essential uses of per- and polyfluoroalkyl substances (PFAS); and
• measures aimed at improving the assessment of chemical risks and hazards.

The European Green Deal has been a cornerstone of the 2019–24 von der Leyen Commission. The new Commission (2024–29) is expected to continue its implementation while also shifting attention to the New Clean Industrial Deal, which places greater emphasis on the EU’s competitiveness.

Laws

There are a multitude of EU laws relating to the environment. Some of the main horizontal pieces of environmental legislation include:

• the Water Framework Directive (2000/60/EC);
• the Marine Strategy Framework Directive (2008/56/EC);
• the Birds Directive (2009/147/EC);
• the Habitats Directive (92/43/EEC);
• the ELD;
• the Environmental Impact Assessment Directive (2011/92/EU); and
• the Industrial Emissions Directive (IED) (2010/75/EU).

There are also a number of product- or sector-specific pieces of legislation, including:

• the Waste Framework Directive (WFD) (2008/98/EC);
• the Waste Electrical and Electronic Equipment (WEEE) Directive (2012/19/EU);
• Restriction of Certain Hazardous Substances in Electrical and Electronic Equipment Directive (“RoHS 2”) (2011/65/EU);
• Regulation (EC) No 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH); and
• Regulation (EC) No 1272/2008 on the Classification, Labelling and Packaging of Substances and Mixtures (CLP).

The EU has no inspection or enforcement authority. It relies on member states to implement and enforce those laws at the national, regional, and local levels.

The EC is responsible for ensuring that EU law is implemented properly by EU member states and can launch infringement proceedings against member states when this is not the case. Such proceedings may end before the ECJ. The EC often focuses on whether EU member states have properly transposed measures into their national laws. However, it may also be notified of EU member states’ failures to implement or comply with EU environmental law via complaints submitted by EU citizens, businesses and organisations, as well as via petitions and questions from the European Parliament and its members.

The EC may also exercise certain “regulatory” functions, including the adoption of technical delegated or implementing Acts related to requirements in EU secondary law and the issuing of guidance.

There are three main EU agencies relevant to EU environmental law:

• the European Environment Agency, which collects data and produces assessments on a range of environmental topics;
• the European Chemicals Agency (ECHA), which manages the implementation of the EU’s chemicals legislation; and
• the Joint Research Centre, which provides independent, evidence-based science and knowledge to support EU policies.

The EU Network for the Implementation and Enforcement of Environmental Law (IMPEL) brings together the environmental authorities of the EU, European Economic Area (EEA) and European Free Trade Association (EFTA) member states, as well as those of acceding and candidate countries. It aims to promote professional collaboration as well as information and best-practice exchange between environmental regulators.

ECHA hosts the Forum for Exchange of Information on Enforcement. This is a body made up of representatives of national enforcement authorities. It works towards co-ordinating the enforcement of REACH, CLP, and other key EU chemical regulations.

Air Quality

The Ambient Air Quality Directives (Directive 2004/107/EC and Directive 2008/50/EC) set quality standards for 12 air pollutants, which must be attained by all EU member states against specified timelines. They lay down common methods and criteria to assess air quality and require EU member states to set up a network of monitoring stations and sampling points. EU member states must report to the EC and provide information to the public on the results of their air quality assessments. Where the standards are not met in a particular zone or agglomeration, EU member states must prepare and implement air quality plans to address the sources responsible.

On 26 October 2022, the EC presented a proposal to revise the Ambient Air Quality Directives and consolidate them into one legal Act. The final Act (Directive (EU) 2024/2881) was published in the Official Journal on 20 November 2024 and will enter into force on 10 December 2024. 

The National Emissions Ceilings Directive (2016/2284/EU) also sets national commitments to reduce emissions for five transboundary air pollutants and requires EU member states to establish action plans. There are other EU Directives setting emissions standards or other requirements for sources of air pollution in different sectors – for example, the IED, Regulation (EU) 2019/631 on Passenger Cars and Light Commercial Vehicles, Regulation (EU) 2024/1610 on New Heavy-Duty Vehicles, and the Non-Road Mobile Machinery Regulation (2016/1628/EU).

Water

The Water Framework Directive and the Marine Strategy Framework Directive provide the legal frameworks for the protection of fresh and marine waters.

The Water Framework Directive concerns the protection of inland surface waters, coastal waters, transitional waters, and groundwater. It requires member states to protect and restore water bodies to reach good chemical and ecological status, and to prevent deterioration. EU member states are required to prepare plans to achieve their targets for each river basin district within their territory. The WFD also includes requirements to monitor and report on water status within each district.

The Water Framework Directive is supported by the Environmental Quality Standards (EQS) Directive (2008/105/EC), which lays down maximum concentration limits for certain substances. EU member states must monitor the presence of these substances and take measures to achieve these standards. The Groundwater Directive (2006/118/EC) similarly identifies a list of substances and standards to be achieved for groundwater.

In October 2022, the EC presented a proposal to amend the Water Framework Directive, the EQS Directive and the Groundwater Directive. As of October 2024, the proposal remains subject to inter-institutional negotiations, with the final text yet to be published. The proposal would, among other aspects, set EQS for 23 new substances (eg, glyphosate) and certain PFAS and pharmaceuticals.

The Marine Strategy Framework Directive established a framework for EU member states to take necessary measures to achieve or maintain good environmental status in the marine environment by 2020. It required EU member states to develop a strategy for the protection, preservation and restoration of its marine waters and to prevent and reduce inputs in the marine environment, with a view to phasing out pollution.

In addition to those two EU Directives, the Urban Waste Water Treatment Directive (UWWTD) (91/271/EEC) plays an important role in ensuring water quality by laying down requirements on the collection, treatment and discharge of urban waste water, as well as discharges from certain industrial sectors.

A 'recast' updated version of the UWWTD was published on 12 December 2024. Member states have until 31 July 2027 to transpose its requirements into national law. Certain provisions, not requiring transposition, apply from 1 August 2027.

Natural Habitats, Flora and Fauna

The Habitats Directive and the Birds Directive aim to ensure that species and habitats within their scope are maintained or restored to good conservation status. They focus on the protection of endangered species and on the designation and protection of core sites.

• Endangered species – the legislation contains protections for endangered species listed in Annex IV of the Habitats Directive, as well as for all naturally occurring wild bird species in the EU.
• Core sites – the legislation lays down rules on the designation and protection of core sites for the protection of species and habitat types listed in Annex I and II of the Habitats Directive and Annex I of the Birds Directive, as well as for migratory birds. These sites are collectively referred to as the Natura 2000 Network.

Under these EU Directives, EU member states must monitor progress and report to the EC every six years on the conservation status of species and habitat types. The results are published in a “State of Nature in the European Union” report.

The Nature Restoration Law (Regulation (EU) 2024/1991), which entered into force in August 2024, sets EU-wide targets to introduce restoration measures for at least 20% of the EU’s land and sea areas by 2030 and for all ecosystems in need by 2050. It also sets restoration targets for specific habitats and species. The framework for achieving such targets is contained in the Nature Restoration Law. EU member states must submit National Restoration Plans to the EC by mid-2026 and report on progress.

The consequences for infringement of these laws by private persons are regulated at member-state level.

Under Article 5 of the ELD , competent authorities – as designated by EU member states – may at any time (inter alia):

• require the operator to provide information on any imminent threat of environmental damage (or in suspected cases of such an imminent threat) or on damage that has occurred;
• require the operator to take necessary preventative or remedial measures;
• give instructions to the operator on the necessary preventative or remedial measures to be taken; or
• themselves take necessary preventative or remedial measures.

According to Article 4(1) of the IED, no installation or combustion plant, waste incineration plant or waste co-incineration plant is to be operated without a permit. “Installation” in this context means a stationary technical unit within certain industries, including:

• the energy industry (including combustion of fuels in installations with a total rated thermal input of 50 MW or more, refining of mineral oil and gas, and gasification or liquefaction of coal or other fuels in installations with a total rated thermal input of 20 MW or more);
• production and processing of metals (including metal ore, production of pig iron or steel, and processing of ferrous and non-ferrous metals);
• the mineral industry (eg, production of cement, lime, magnesium oxide, and asbestos, as well as the manufacture of glass including glass fibre with a melting capacity exceeding 20 tonnes per day, melting mineral substances including the production of mineral fibres with a melting capacity exceeding 20 tonnes per day, and melting mineral substances including the production of mineral fibres with a melting capacity exceeding 20 tonnes per day);
• the chemical industry (including production of organic and inorganic chemicals);
• waste management (including disposal or recovery of hazardous waste with a capacity exceeding 10 tonnes per day, as well as the disposal or recovery of waste in waste incineration plants or in waste co-incineration plants).

In April 2024, the IED was amended and certain industries/activities were added, including:

• manufacture of batteries, other than exclusively assembling, with a production capacity of 15,000 tonnes of battery cells (cathode, anode, electrolyte, separator, capsule) or more per year; and
• extraction (including on-site treatment operations such as comminution, size control, beneficiation and upgrading) of the following ores on an industrial scale: bauxite, chromium, cobalt, copper, gold, iron, lead, lithium, manganese, nickel, palladium, platinum, tin, tungsten and zinc.

A detailed list of all activities is available in Annex I, Annex Ia and Part 1 of Annex VII to the IED. Under Article 5 of the IED, the competent authorities designated by EU member states are responsible for issuing the permits.

At the national level, EU member states are responsible for upholding EU regulations, with enforcement procedures and sanctions following national law. In 2016, the EC clarified that its enforcement policy involved monitoring how EU law is applied and implemented, as well as solving problems with EU member states to remedy possible breaches of the law and taking infringement action when appropriate.

The European Green Deal also adds that the EC will “work with the member states to step up the EU’s efforts to ensure that current legislation and policies relevant to the Green Deal are enforced and effectively implemented”. The EC’s Directorate-General for Environment focuses enforcement action on:

• cases where EU member states have failed to communicate national transposition measures;
• cases where national transposition measures have incorrectly transposed EU Directives;
• cases where EU member states have failed to comply with an ECJ judgment; and
• cases involving possible serious damage to EU financial interests.

The IED does not contain explicit provisions regarding the transfer of permits. It is up to EU member states to establish transfer provisions.

According to Article 8(2) of the IED, in the event of a breach of the permit conditions, EU member states must ensure that:

• the operator immediately informs the competent authority;
• the operator immediately takes the measures necessary to ensure that compliance is restored within the shortest possible time; and
• the competent authority requires the operator to take any appropriate complementary measures that the competent authority considers necessary to restore compliance.

Article 79 of the IED states that EU member states must establish effective, proportionate and dissuasive penalties applicable to infringements of the national provisions adopted pursuant to the IED.

Additionally, Article 79a was introduced in 2024 – pursuant to which, EU member states must ensure that where damage to human health has occurred as a result of an infringement of national measures that were adopted pursuant to this IED, the individuals affected have the right to claim and obtain compensation for that damage from the relevant natural or legal persons.

The ELD establishes a framework of environmental liability based on the “polluter pays” principle. Under Article 2(1) of the ELD, “environmental damage” is:

• damage that has significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species;
• damage that significantly adversely affects the ecological, chemical or quantitative status or the ecological potential of the waters concerned or significantly adversely affects the environmental status of the marine waters concerned; or
• land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction ‒ in, on or under land – of substances, preparations, organisms or micro-organisms.

In 2021, the EC issued guidelines clarifying the scope of the term “environmental damage”:

• environmental damage caused by any of the occupational activities listed in Annex III to the ELD (such as energy industries, mineral industries, chemical industries, and production and processing of metals), as well as any imminent threat of such damage occurring by reason of any of those activities; or
• damage to protected species and natural habitats caused by any occupational activities other than those listed in Annex III to the ELD, as well as any imminent threat of such damage occurring by reason of any of those activities, whenever the operator has been at fault or negligent.

The Environmental Crime Directive (2008/99/EC) (the “2008 ECD”) established measures relating to criminal law to protect the environment more effectively but will soon be replaced by the new Environmental Crime Directive (2024/1203/EU) (the “new ECD”), which entered into force in May 2024. Like the 2008 ECD, Article 3 of the new ECD contains a list of environmental offences that EU member states must criminalise if such actions are unlawful and committed intentionally or with serious negligence. The specific powers, procedures, and enforcement mechanisms employed by the competent national authorities are governed by national member state law.

In addition, the new ECD introduces several significant changes aimed at enhancing the protection of the environment through criminal law. There are new categories of environmental offences such as:

• unlawful ship recycling;
• unlawful water abstraction;
• serious breaches of eu chemicals and mercury legislation;
• serious breaches related to fluorinated greenhouse gases; and
• serious breaches of legislation on invasive alien species.

EU member states will be required to establish “qualified criminal offences” for cases where environmental crimes cause serious, widespread and substantial damage with more severe penalties.

In addition, the new ECD sets out specific types and levels of penalties for natural and legal persons. By way of example, in the case of criminal offences, such penalties can be based on fixed amounts or a percentage of the total annual worldwide turnover of the legal entity involved.

EU member states have until 21 May 2026 to align their national legislation with the requirements of the new ECD.

Under Article 6 of the ELD, the competent authorities ‒ designated by EU member states – may:

• require the operator to provide information on any imminent threat of environmental damage or in suspected cases of such an imminent threat; and
• require the operator to provide supplementary information on any damage that has occurred.

The Corporate Sustainability Reporting Directive (CSRD) (2022/2464/EU) establishes an obligation for certain companies to report on sustainability matters (including environmental, social and human rights, as well as governance factors as per Article 1(2)(b) of the CSRD) (see 7.5 ESG Requirements).

The ELD does not address this question. It is up to EU member states to adopt their own rules.

Reporting obligations are foreseen for operators in case of environmental damage under the ELD.

For the reporting of illegal activities, the role of civil society under the ECD should be highlighted.

Under the CSRD and the European Sustainability Reporting Standards (ESRS) (Commission Delegated Regulation (EU) 2023/2772), in-scope companies are required to report on impacts, risks and opportunities (IROs) related to environmental aspects material to their operations as part of their broader environmental impact and sustainability reporting obligations.

Significant environmental damage that is widespread or challenging to remedy may be considered material for disclosure. Accordingly, companies should estimate and disclose the anticipated financial impacts of material risks linked to pollution and other environmental incidents, including details on costs, assumptions, and critical thresholds (Application Requirement (AR) 33 and AR 34 of the ESRS). The ESRS specifically mandate disclosure of significant pollution-related risks, incidents, and financial impacts, encompassing costs associated with pollution remediation, fines, and penalties (AR 31 and AR 32 of the ESRS).

For types of liability, see 5.1 Key Types of Liability.

For defences, Article 4 of the ELD provides the following:

• an act of armed conflict, hostilities, civil war or insurrection;
• a natural phenomenon of exceptional, inevitable and irresistible character;
• an incident in respect of which liability or compensation falls within the scope of any of the International Conventions listed in Annex IV of the ELD (including any future amendments thereof) that is in force in the EU member state concerned; and
• pollution of a diffuse character, where it is not possible to establish a causal link between the damage and the activities of individual operators.

The ELD does not apply to:

• such nuclear risks or environmental damage (or imminent threat of such damage) as may be caused by the activities covered by the Treaty establishing the European Atomic Energy Community or caused by an incident or activity in respect of which liability or compensation falls within the scope of any of the international instruments listed in Annex V of the ELD (as amended);
• activities of which the main purpose is to serve national defence or international security; or
• activities of which the sole purpose is to protect from natural disasters.

The operator can also limit its liability in accordance with national legislation implementing the Convention on Limitation of Liability for Maritime Claims (LLMC) 1976 (as amended) or the Strasbourg Convention on Limitation of Liability in Inland Navigation (Convention sur la Limitation de la responsabilité en Navigation Intérieure, or CLNI) 1988 (as amended).

ELD

The main legal instrument concerning liability of a corporate entity for environmental damages or breaches of environmental law is the ELD. The ELD establishes a framework of environmental liability based on the “polluter pays” and preventative principles.

Although the ELD does not refer to “companies”, it does refer to operators upon whom particular duties can be imposed by public authorities. In practice, those operators are companies. If an operator enters insolvency, this may hamper the application of the ELD. Article 14(1) of the ELD thus encourages EU member states to develop financial security instruments to enable financial guarantees for operators to comply with the ELD. There is no formal duty to provide financial guarantees under the ELD.

ECD

Article 6 of the ECD states that “legal persons” can be held liable for environmental crimes if committed for their benefit or by any person with a “leading position within the legal person” acting individually or as part of an organ of the legal person (based on their power to represent the legal person, to take decisions on behalf of the legal person, and to exercise control over the legal person). Under Article 2(d) of the 2008 ECD/Article 2(2)(a) of the new ECD, a “legal person” is “any legal entity having such status under the applicable national law, except for [s]tates or public bodies exercising [s]tate authority and for public international organisations”.

Similarly, the new ECD also provides that legal persons should be held liable (Article 6). However, the main change revolves around the long list of potential penalties foreseen for legal persons (Article 7).

Corporate Sustainability Due Diligence Directive

The EU Corporate Sustainability Due Diligence Directive (CSDDD) (2024/1760/EU) mandates in-scope companies to carry out due diligence with regard to adverse impacts of their operations, subsidiaries, and supply chains on human rights and the environment.

Under Article 29 of the CSDDD, EU member states must ensure that companies can be held liable for damages caused to natural or legal persons by companies’ failure to fulfil due diligence obligations. This liability arises when companies intentionally or negligently fail to prevent or address adverse impacts. Such liability is activated if the breach results in harm to individuals or entities whose rights are protected under national law. First, damage must be shown to have occurred to a natural or legal person, impacting a legal interest protected under national law and related to a right listed in the Annex, Part I of the CSDDD. Second, there must be evidence of a breach of the due diligence obligations outlined in Articles 10 and 11 of the CSDDD, indicating a negligent or intentional failure to prevent potential adverse human rights or environmental impacts or to address actual impacts. Finally, causation must be established, demonstrating that this failure directly resulted in damage to the affected legal interests. The CSDDD further stipulates that ‒ where multiple parties are involved – joint and several liability may apply, except in cases where only business partners are responsible.

EU member states may define the concept of “(protecting) legal interest” for natural or legal persons in various ways, leading to differences in the types of damages that can be claimed between member states.

The principal EU environmental taxation initiatives in the EU include:

• the Energy Taxation Directive (ETD) (2003/96/EC);
• the Emissions Trading Scheme (ETS) Directive (2003/87/EC));
• the Carbon Border Adjustment Mechanism (CBAM) (Regulation (EU) 2023/956); and
• the Levy on Non-recycled Plastic Packaging Waste (Regulation (EU, Euratom) 2021/770 on the calculation of the own resource based on plastic packaging waste that is not recycled, on the methods and procedure for making available that own resource, on the measures to meet cash requirements, and on certain aspects of the own resource based on gross national income) (“the Levy”).

“Good” environmental citizenship can lead to better conditions under the various taxation initiatives by the EC, such as under the ETD, the ETS, the CBAM and the Levy. Exemptions do exist under these schemes – for example, under the ETD, certain energy-intensive undertakings receive a higher share of free allowances if they are at risk of carbon leakage.

Other incentives have been created by the EU, including the EU Innovation Fund, which will provide EUR10 billion support between 2020 and 2030 for European companies that invest over EUR7.5 million in sustainable technology. The EU renewable energy financing mechanism will make it easier for regions to launch projects at a time when their economy is under pressure.

As regards penalties, failure to comply with the EU incentives can lead to fines. “Bad” environmental citizenship (eg, breaching environmental law) could also lead to legal action under the ELD and the 2008 ECD /new ECD. Other penalties can be imposed by national law.

See 7.1 Liability for Environmental Damage or Breaches of Environmental Law.

ELD

Arguably, the ELD can enable claims against the parent company, as the parent company controls the occupational activities that caused the damage. It is arguable that this is only possible if legislation is enacted holding the parent to be an operator of the activities of its subsidiary. Joint liability of a company and its parent company and/or shareholders would arguably require modifying the ELD.

Currently, no harmonised rule exists on enterprise (group) liability within the EU. There are significant divergences in how the “corporate veil” is lifted in different EU member states. In Germany, for example, a parent company can be held liable for breaches by an affiliate. In other EU member states, this is less common. There have not yet been any ECJ cases regarding parental liability for environmental damage or breaches of environmental law in the context of corporate groups. In Akzo Nobel (Case C-97/08), the ECJ held that the parent company could be attributed liability for the conduct of its subsidiary, given that they were viewed as belonging to the same “single economic unit”.

ECD

A parent company and/or shareholder could fall within the definition of “legal persons” that can be liable under the 2008 ECD/new ECD (Article 6). Therefore, arguments similar to those made regarding the ELD could be made regarding the ECD’s applicability to parent companies. However, criminal law remains largely a national prerogative.

See 17.3 Corporate Disclosure Requirement.

Companies are not subject to mandatory environmental audits directly at the EU level, but as an example, the Eco-Management and Audit Scheme (EMAS) (Regulation (EC) No 1221/2009) establishes a voluntary premium management tool for different types of organisations willing to evaluate, report on and improve their environmental performance.

See 7.1 Liability for Environmental Damage or Breaches of Environmental Law.

ELD

Per Article 3(1) of the ELD, a director could fall within the definition of “operator”, as they could qualify as a “natural” person who controls the occupational activity or as the person to which the decisive economic power of the undertaking has been delegated.

Regarding the question of other officers being held liable, the Fipa case (C-534/13) before the ECJ is relevant. The question asked was whether parties other than the polluter could be held liable for pollution costs, even though the contamination was not caused by them. The ECJ held that, on the basis of the “polluter pays” principle, only the responsible operator could be held liable. The ELD can therefore not be extended to impose liability on the innocent owner. However, Article 16 of the ELD provides EU member states with the possibility to adopt more stringent provisions in relation to the remediation of environmental damage.

Regarding penalties, Article 8 of the ELD states that the operator must bear the costs for the preventative and remedial actions taken under the ELD. Annex II of the ELD sets out the common framework to be followed when choosing the most appropriate measures to remedy the environmental damage. As mentioned earlier, Article 16 of the ELD states that EU member states are free to adopt more stringent provisions concerning the remedying of environmental damage.

ECD

As mentioned in 7.1 Liability for Environmental Damage or Breaches of Environmental Law, Article 6 of the 2008 ECD/new ECD states that “legal persons” can be held liable for environmental crimes if committed for their benefit or by any person with a “leading position within the legal person” acting individually or as part of an organ of the legal person (based on their power to represent the legal person, to take decisions on behalf of the legal person, and to exercise control over the legal person). Based on the definition of “legal person”, directors could be considered as falling within such definition but national law will need to be checked. In addition, the new ECD explicitly provides that natural persons who commit, incite or are accessories to a criminal offence could also be held liable as natural persons. This includes corporate board members (see recital 38).

Regarding penalties, Article 7 of the ECD states that EU member states “shall take the necessary measures to ensure that legal persons held liable pursuant to Article 6 are punishable by effective, proportionate and dissuasive penalties”. In addition, natural persons can also be held liable and, in that respect, Article 5 of the new ECD provides that penalties or measures against natural persons may include “disqualification from holding, within a legal person, a leading position of the same type used for committing the offence”.

Per Article 14 of the ELD, EU member states should encourage the development of financial security instruments (including financial mechanisms in case of insolvency), with the aim of enabling operators to use financial guarantees to cover their responsibilities under the ELD. If directors qualify as “operators” pursuant to Article 2(6) of the ELD, then they could have the option of insuring against remedies imposed by the ELD. As stated in 9.1 Environmental Insurance, environmental insurance is regulated at member-state level.

The rules for (environmental) insurance are regulated at member-state level. The ELD does require EU member states to encourage the development of financial security instruments and markets by the appropriate economic and financial operators, including in case of insolvencies, so that economic operators can use financial guarantees to cover their responsibilities under the ELD.

EU legislation does not provide rules on direct liability of financial institutions for environmental damage (nor does it require EU member states to do so). Rules on lender liability will vary per member state.

Financial institutions can, in any event, ex ante reduce exposure to any claim by doing their due diligence.

Civil claims principally fall under national law. The EU introduced Directive (EU) 2020/1828 on Representative Actions for the Protection of the Collective Interests of Consumers. It aims to ensure that consumers can protect their collective interests in the EU via representative actions brought by representative entities (so-called qualified entities). Such “class” actions apply to a set number of EU secondary legislations in Annex I of the Directive, including CLP and Regulation (EU) 2024/1781 on Ecodesign Requirements for Sustainable Products (ESPR). The question of civil remedies will generally be a question of member-state national law.

The awarding of exemplary or punitive damages is a matter for the national courts of EU member states.

See 11.1 Civil Claims.

Cases concerning civil claims are dealt with by the national courts of EU member states.

Private contracts can be used to impose obligations on certain parties to comply with applicable laws. Under civil claims, such contracts will be fully valid. However, clauses may be disputed in certain fields of law such as in criminal or competition law proceedings where responsibility for committing an infringement is, in principle, personal. In general, if the clauses comply with national law, they are fully binding.

That said, in administrative or criminal proceedings involving an EU member state enforcing an EU compliance obligation, it will not be possible for Party A to contract away responsibility (liability) for compliance with the relevant EU law to Party B. Even though a private agreement may be in place that Party B pays the penalty, for instance, it will be Party A that the member states will enforce against.

This varies per EU member state.

At EU level, unlike for water and air, there are no overarching rules applicable to soil pollution and contaminated land. These rules are defined at member-state level.

In July 2023, the EC proposed a Directive on Soil Monitoring and Resilience to protect and restore soils and ensure that they are used sustainably. The proposal requests that EU member states identify and investigate all potentially contaminated sites and map them in a public register. Based on the outcome of their investigation, EU member states must take risk-reduction measures to address unacceptable risks for human health and the environment. The remediation costs must be borne by the parties responsible for the contamination.

Other EU legislation contains key principles to apply both for the reduction of soil contamination in sites (ie, the IED) and to determine liability in the case of environmental damage (ie, the ELD).

This is mainly regulated at member-state level.

The ELD establishes framework rules on how operators must bear the costs for preventative and remedial actions (including clean-up of contaminated land). The ELD is without prejudice to any provisions at a member-state level concerning cost allocation in cases of multiple-party causation ‒ in particular, concerning the apportionment of liability between the producer and the user of a product.

EU member state authorities determine and assess the extent of environmental damage and agree the preventative or remediation measures to be taken by those responsible for the damage. Operators carrying out dangerous activities listed in Annex III of the ELD (eg, waste management operations) are subject to strict liability so there is no need to prove fault in order to determine liability. For operators carrying out other activities, it is necessary to establish a causal link between their activity and the damage to determine liability. On the basis of that determination, EU member states will attribute liability.

Liability for traditional civil law damage (property damage and/or personal injury) falls under each EU member state’s law.

The rules on admissibility of legal actions seeking redress for damage before EU member state courts depends on the law of each EU member state. At EU level, the ELD only provides that affected individuals and NGOs are entitled to notify public bodies of environmental damage or imminent threat of such. They can challenge the action or inaction of a public body to prevent and remedy environmental damage.

As per 4.1 Investigative and Access Powers, each EU member state’s competent authority has investigation powers under the ELD.

There are two key policies that set out the EU’s direction on climate change policy:

• the overarching European Green Deal, via which the EC sets its policies and framework to ensure that the EU is transformed into a modern, resources-efficient and competitive economy; and
• the EC’s Fit-for-55 plan, which aims to deliver on one of the key goals of the Green Deal to become a climate-neutral economy by 2050.

There are various pieces of legislation relating to climate change in the EU. The key ones are:

• the European Climate Law (Regulation (EU) 2021/1119), whereby the EU imposed on itself the obligation to reach climate neutrality by 2050;
• reducing emissions from power stations, industrial plants and recently also aviation via the ETS Directive’s cap-and-trade system;
• reducing the emissions from sectors not included in the ETS (such as agriculture, business and transport – for now) via the Effort Sharing Regulation (2023/857/EU), which sets national targets for EU member states;
• the CBAM;
• the F-Gas Regulation (2024/573/EU), which phases out – up to complete elimination – (certain) fluorinated gases used in products such as refrigerators or air conditioners and establishes a market system with quota allocation.
• The Regulation on Land, Land Use Change, and Forestry (2018/841/EU), which aims to regulate how the land use sector contributes to the EU’s climate goals;
• The EU Ozone Regulation (2024/590/EU), which aims to have the EU fulfil its obligations to protect the ozone layer and minimise the use of ozone-depleting substances;
• rules to regulate emissions from transport, including road transport, shipping and aviation (eg, the Fuel Quality Directive (2009/30/EC)).
• reducing land-based greenhouse gas emissions and urban temperatures via the Nature Restoration Law, which sets binding targets for EU member states for the restoration of critical EU habitats and species; and
• various funding programmes to enable the EU to reach those ambitions and rules to boost private funding.

There are three key targets for reducing greenhouse gas emissions in the EU (leaving aside energy-related targets):

• at least a 55% reduction in greenhouse gas emissions by 2030 (compared with 1990 levels);
• a 90% reduction in greenhouse gas emissions by 2040 (compared with 1990 levels); and
• a climate-neutral society by 2050.

Since 2005, all use of asbestos is banned in the EU – both for goods produced and imported into the EU. Asbestos is mainly regulated by the Asbestos at Work Directive (2009/148/EC). The definition of asbestos in the Asbestos at Work Directive covers six fibrous silicates. Under it, it is necessary to determine whether any activity at work is likely to involve risk of exposure. If that is the case, a risk assessment must be carried out (including a consultation with the workers). Employers must notify the EU member state authorities of any activities with exposure to asbestos. Exposure must be reduced to the minimum in the permitted activities. The Asbestos at Work Directive provides other rules (eg, on training, clothing and equipment of workers).

The Asbestos at Work Directive was amended by Directive (EU) 2023/2668 to, inter alia, reduce occupational exposure limit value to 0.01 fibres per cubic centimetre.

Additional safeguards to protect workers from the risks of asbestos exposure are:

• the Occupational Safety and Health Framework Directive (89/391/EEC), which sets out the main principles of workers’ safety and health at work; and
• the Carcinogens, Mutagens and Reprotoxic Substances Directive (2004/37/EC), which deals with risks posed by carcinogens at work.

The management of asbestos-containing waste is regulated in the WFD. The EU Construction and Demolition Waste Management Protocol and Guidelines also control the disposal of asbestos waste in landfills.

The WFD is the main legal instrument for treating and managing waste in the EU. It establishes the basic concepts and definitions related to waste management, such as the definition of waste or recycling. It introduces the waste hierarchy, the “polluter pays” principle and the EPR concept, as well as setting separate collection targets for municipal waste.

Waste is broadly defined as any substance or object that the holder discards or intends or is required to discard. Waste must be differentiated from by-products, which are a substance or object resulting from a production process ‒ the primary aim of which is not the production of that item. These should not be regarded as waste if certain conditions are met. Additionally, certain specified waste may cease to be waste when it has undergone a recovery operation and complies with specific criteria to be developed either at EU or member-state level.

The WFD establishes a waste hierarchy that EU member states should follow. The hierarchy indicates a priority order of the options in treating waste based on how they deliver the best environmental outcome, as follows:

• waste prevention;
• preparing for reuse;
• recycling;
• other recovery (eg, energy recovery); and
• disposal in landfills.

Waste operators are required to obtain a permit from the relevant competent authority. See 16.4 Rights and Obligations Applicable to Waste Operators for more details.

The WFD recognises the general “polluter pays” principle, which requires polluters to bear the environmental and social costs of their actions. In particular, this is applied by the EPR concept, which requires EU member states to ensure that a producer bears the financial and/or operational responsibility for the management of the product at its waste stage. This tool intends to help meet national or EU recycling and recovery targets.

There are other pieces of legislation for specific waste treatment operations, such as the Landfill Directive (1999/31/EC) and the Waste Shipment Regulation (2024/1157/EU). The EU has also regulated various types of waste stream:

• end-of-life vehicles (Directive 2000/53/EC);
• extractive mining waste (Directive 2006/21/EC);
• packaging waste (Council Directive 94/62/EC); (to be repealed by a new regulation)
• disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCBs/PBTs) (Council Directive 96/59/EC);
• RoHS 2;
• sewage sludge (Council Directive 86/278/EEC);
• ship recycling (Regulation (EU) 1257/2013);
• persistent organic pollutants (Regulation (EU) 2019/1021);
• single-use plastics (Directive (EU) 2019/904); and
• the WEEE Directive.

The Batteries Regulation (2023/1542/EU) includes rules on product requirements (eg, labelling, material composition, and design for recycling) and on the product’s end-of-life management.

This is regulated at member-state level. According to the WFD, EU member states may decide that the responsibility for arranging waste management is to be borne partly or wholly by the producer of the product from which the waste came and that distributors of such product may share this responsibility.

The WFD, through the EPR principle, mandates EU member states to encourage the design of products to reduce their environmental impacts and the generation of waste. As regards the treatment of waste, the WFD only establishes general rules applicable to EU member states. In this regard, EU member states must take measures to promote high-quality recycling and achieve overall recycling targets of municipal waste per material (paper, metal, plastic and glass). EU member states must also ensure that the disposal of waste is safe and does not endanger human health or the environment.

Each specific waste stream legislation specifies to a greater extent how products must be designed and how they must be treated once they become waste (take back, recovery, recycling or disposal).

The new ESPR sets a framework for ecodesign requirements to be introduced in the coming years via secondary legislation with regard to specific product groups, including rules on their durability, reusability, upgradability, reparability, remanufacturing, and recycling. The ESPR also introduces a direct ban on the destruction of unsold textiles and footwear, which will apply to large companies from 19 July 2026.

Additionally and also with regard to textile waste, a targeted amendment to the WFD ‒ currently in trilogue negotiations and expected to be adopted in 2025 ‒ will introduce mandatory, harmonised EU-wide EPR schemes for textile and footwear producers.

According to the WFD, EU member states require waste operators to obtain a permit from the relevant competent authority. These permits specify factors such as the types and quantities of waste to be treated and other requirements for the site concerned. Waste operator permits are granted for a specified period and may be renewable; they may be combined under a single permit with other required permits. Certain waste operations (ie, disposal of non-hazardous waste at the place of production, as well as recovery of waste) may be exempted from the permit requirement. The Landfill Directive specifies the conditions to be granted a landfill permit.

EU member states must take the necessary rules to prohibit the abandonment, dumping or uncontrolled management of waste. Enforcement rules and penalties are regulated at a member-state level and thus will vary.

Certain EU Directives require EU member states to establish incident reporting requirements at the national level concerning environmental damage, as follows.

• Under the ELD, operators that are engaged in certain regulated activities are required to notify the competent member state authority if they cause environmental damage or pose an imminent threat of damage. Additionally, the ELD grants individuals and NGOs the right to report environmental damage or impending threats thereof to designated public authorities.
• Under the IED, industrial installations are required to promptly inform the national authority of any emissions, incidents or accidents related to air and water pollution.
• Under the Seveso III Directive (2012/18/EU), operators of installations containing specified quantities of hazardous substances ‒ as outlined in Annex I of the Seveso III Directive – must report major accidents, including those with the potential to significantly impact the environment.

The Aarhus Convention, implemented in the EU through the Aarhus Regulation (1367/2006/EC) and the Access to Environmental Information Directive (2003/4/EC), safeguards citizens’ rights to access environmental information from public authorities and bodies. This framework imposes an obligation on EU institutions and member states to provide public access to environmental information upon request, with some exceptions. “Community institution or body” is defined in the Aarhus Regulation as “any public institution, body, office or agency established by, or on the basis of, the Treaty…”.

A public authority under the Access to Environmental Information Directive refers to:

• “government or other public administration, including public advisory bodies, at national, regional or local level”;
• “any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment”; and
• “any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within [the foregoing].”

EU member states may provide that this definition does not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of the Access to Environmental Information Directive make no provision for a review procedure within the meaning of Article 6, EU member states may exclude those bodies or institutions from that definition.

EU citizens and legal entities also have the right to access documents ‒ including those containing environmental information ‒ that are held by EU institutions in any format (eg, paper, electronic, audio or video) via the conditions set in Regulation (EC) 1049/2001. Additionally, the public may obtain environmental information from EU centralised and public accessible registries ‒ for example, the Industrial Emissions Portal containing specific information on emissions, pollutant releases and waste transfers, which was established by Regulation (EU) 2024/1244.

Under the CSRD, in-scope companies must report on their IROs in respect of ESG matters that are material to their operations. EU entities must report on their sustainability targets, strategies, and performance using the ESRS, with five standards (ESRS E) requiring disclosures of environmental information as material to the company on climate change, pollution (air, water, soil), water and marine resources, ecosystems, and resource use and circular economy.

Furthermore, the CSRD ties into Article 8 of the EU Taxonomy Regulation by requiring companies to disclose essential performance metrics for all six environmental objectives of the EU Taxonomy for Sustainable Activities (the “EU Taxonomy”).

The CSDDD also requires in-scope companies to annually report on their due diligence processes and outcomes, including information and measures related to adverse impacts of their operations on the environment.

Since 2018, the EU has been developing a comprehensive set of measures to promote sustainable finance. The foundations of the EU sustainable finance framework are:

• the EU Taxonomy ‒ this common classification system identifies economic activities that significantly contribute to the EU’s climate and environmental objectives, featuring minimum social and human rights safeguards;
• a set of disclosure and reporting rules ‒ namely, the Non-Financial Reporting Directive (NFRD) (2014/95/EU) and the CSRD, as well as the Sustainable Finance Disclosure Regulation (SFDR) (2019/2088/EU), which mandates that EU financial market participants (eg, financial advisers, investment firms and insurance providers) report on sustainability factors and their integration into decision-making processes; and
• a range of tools and standards – these include Climate Transition Benchmarks and the International Platform on Sustainable Finance, as well as Regulation (EU) 2023/2631 on European Green Bonds and Optional Disclosures for Bonds Marketed as Environmentally Sustainable and for Sustainability-Linked Bonds, which provides a voluntary framework for issuers to demonstrate their commitment to funding environmentally sound projects that align with the EU Taxonomy.

Environmental due diligence for M&A and other transactions is standard practice. However, its specifics depend on national environmental regulations and legislation on company law and financial markets at the member-state level.

Disclosure of environmental information is regulated at member-state level.

The most common environmental legal issues that will arise within the context of a transaction in EU member states will depend on environmental regulations and legislation on company law and financial markets at member-state level.