European Commission proposal reverses onus of proof in favour of victims for certain pollution lawsuits

On 5 April 2022, the European Commission released a proposal for a directive amending Directive 2010/75/EU on industrial emissions ("the IED") and Directive 1999/31/EC on the landfill of waste ("the Proposal).

Among other amendments, the Proposal introduces in the IED a right for individuals (and civil society organisations acting on their behalf) to claim compensation for health damage caused by breaches of industrial plants' IED permits and reverses the onus of proof in favour of the victims of such breaches. 

If an individual can provide sufficiently robust evidence to give rise to a presumption that the breach is at the origins of the damage caused to their health, or has significantly contributed to it, it will be for the plant operator or the relevant authorities to rebut that presumption in order to escape liability. The time limitation period should be a minimum of five years. With respect to public enforcement, the Proposal also specifies minimum penalties in case of infringement to the IED.

Scope of application of the IED

The IED is the main EU instrument regulating the environmental impact of Europe’s large-scale industrial installations, as well as of livestock farms (the so-called “agro-industrial installations”).

In a nutshell, the IED requires EU Member States to regulate around 50,000 installations undertaking the industrial activities listed in Annex I to the IED with an integrated permit (granted by the authorities of Member States) which is based on the best available techniques ("BAT"). This permit should contain conditions set in accordance with the principles and provisions of the IED.

Activities regulated by the IED include power plants, refineries, waste treatment and incineration, production of metals, cement, glass, chemicals, pulp and paper, food and drink, and the intensive rearing of pigs and poultry. 

Amendments introduced by the Proposal to Annex I of the IED also include bringing within the scope of the IED the extraction of industrial and metallic minerals, as well as large installations undertaking the manufacturing of batteries. The IED's scope is also being extended to additional livestock farming and industrial activities, including all cattle, pig and poultry farms with over 150 livestock units.

Proposed amendments to the IED

Private enforcement

The revision of the IED seeks – among other objectives – to ensure access to justice to private individuals and civil society (including effective redress) in relation to permitting, operation and control of these regulated installations by introducing a new Article 79a.  

Access to court for the victim in case of health damage

This provision first provides that, where damage to health has occurred as a result of a breach of national measures adopted pursuant to the IED, the individuals affected have the right to claim and obtain compensation from the natural or legal persons responsible for the violation and, where appropriate, from the authorities.

Legal standing of civil society organisations

Civil society organisations promoting the protection of human health, the environment or the protection of consumers (and meeting any requirements under national law) should also be empowered by Member States to engage in proceedings to represent the individuals affected and bring collective actions for compensation. However, a compensation claim cannot be pursued twice, by such organisations on the one hand and by the individuals affected by the violation on the other hand. 

Reversal of the onus of proof 

The European Commission considers that, while experience shows that there is overwhelming evidence of the negative health impacts of pollution on the population, it is difficult for the victims of violations of the IED under the procedural rules on the onus of proof generally applicable in the Member States to demonstrate a causality link between the suffered harm and the violation. As a result, in the majority of cases, victims of violations of the IED do not have an effective way to obtain compensation for the harm caused by such violations.

Based on these considerations, the Proposal provides that, where an individual can provide sufficiently robust evidence to give rise to a presumption that the violation of the IED is at the origins of the damage caused to their health, or has significantly contributed to it, it should be for the defendant to rebut that presumption in order to escape liability.

It is noticeable that this approach has not been followed for the proposal for a Directive on Corporate Sustainability Due Diligence (see our previous client briefing). This has been criticized by civil society associations, which are arguing for the inclusion of a reversal of the standard of proof in the context of this instrument as well.

Time limitation period

Finally, Article 79a requires Member States to ensure that the limitation periods for bringing actions for compensation are not shorter than five years and that such periods do not begin to run before the violation has ceased and the person claiming the compensation knows or can reasonably be expected to know that he or she suffered damage from the violation.

Public enforcement

Amendments are also made to Article 79 of the IED to specify minimum penalties, as currently this provision merely provides that penalties should be “effective, proportionate and dissuasive”. Such penalties should include fines proportionate to the turnover of the legal person or to the income of the natural personal having committed the infringement. In the first case, the maximum amount of such fines should be at least 8% of the operator’s annual turnover in the Member State concerned. The amended Article 79 also specifies that such penalties are without prejudice to Directive 2008/99/EC on the protection of the environment through criminal law (see our previous blog post).

Legal standing in review procedures 

The amended Article 25 of the IED confirms the recent case law of the Court of Justice of the European Union on legal standing in review procedures pursuant to which a person may challenge the validity of an environmental permit regardless of whether it participated to the permit procedure at an earlier stage.

Member States may therefore not restrict such legal standing by making it conditional on the role that person played during a participatory phase of the decision-making procedure.

 What’s next? 

The Proposal is currently being negotiated by the European Parliament and by the Council and is thus subject to potential amendments. Under the ordinary legislative procedure, the average timeline from the Commission proposal to formal adoption is around 18 months. An additional 18 month transposition period is foreseen in the Proposal, during which Member States will have to adapt their national laws.