Lawyer Monthly Magazine - September 2021 Edition

46 WWW.LAWYER-MONTHLY.COM | SEP 2021 SPECIAL REPORT ON THE POLLUTER PAYS PRINCIPLE The ECA report was intended to determine whether the “polluter pays” principle was appropriately applied in four EU environmental policy areas, namely industrial pollution, waste, water, and soil. Two main issues justified this audit: - Pollution represents a significant cost for society and is a key concern for EU citizens. - The polluter pays principle has a key role in enabling Europe to reach its environmental objectives in an efficient and fair manner. The polluter pays principle was created in 1972 by the Organisation for Economic Co-operation and Development (OECD). In 1992, the United Nations Declaration on Environment and Development recognised this principle as one of the twenty-seven guiding principles for future sustainable development. The scope of the polluter pays principle has significantly increased since its creation. Indeed, at first, it only concerned the prevention and control costs against pollution. It was then extended to the costs of the measures taken by the authorities to address pollutant emissions and was then further extended to cover environmental liability. In other words, polluters should theoretically bear all the costs of the environmental damage they cause. Consequently, the European Commission needs to draft legislation based on the polluter pays principle and all Member States need to transpose, apply, and enforce environmental directives and regulations. In France, the polluter pays principle is covered by Article L. 110-1 of the French Environmental Code according to which "the costs resulting from the prevention, reduction of pollution and fight against such pollution shall be borne by the polluter". This principle has a constitutional value given that it is implicitly mentioned in the body of the Environmental Charter, which provides that "any person shall contribute to remedying damage caused to the environment, in the conditions laid down by the law" (Article 4). Consequently, the polluter pays principle is used as a legal basis for the new rules on the indemnification of environmental damage created by the Biodiversity Law of 2016. Special Report on the Polluter Pays Principle The scope of the polluter pays principle has significantly increased since its creation Sylvie Gallage-Alwis Partner, Signature Litigation 49/51 Avenue George V, 75008 Paris T: +33 (0)1 70 75 58 00 E: sylvie.gallage-alwis@signaturelitigation.com www.signaturelitigation.com Signature Litigation Signature Litigation is an international law firm founded in 2012. Its senior lawyers bring years worth of experience to tackle multijurisdictional transactions and disputes, specialising in high value commercial litigation and arbitration. Sylvie Gallage-Alwis Sylvie Gallage-Alwis became one of the founding partners of Signature Litigation’s Paris office after spending 10 years practicing at a major international law firm. She leads SL’s product liability practice and represents a variety of globally recognized manufacturers across a broad range of industries. On 5 July 2021, the European Court of Auditors (ECA) published a report on the application of the polluter pays principle in the European Union. Sylvie Gallage-Alwis, partner at Signature Litigation, analyses the report below.