EU 환경책임지침(ELD)과 국내법 전환실태

Abstract

The Environmental Liability Directive of European Union was introduced in 2004 with the objective of establishing a common framework of environmental liability regime based on the "polluter-pays" principle, preventing and remedying environmental damages. Environmental damage is understood as damage to protected species and habitats, land and water. The directive departed fundamentally from prior proposals in that it pursued mainly a public law regime rather than civil liability regime, combined with private law aspects such as strict liability or fault-based liability dichotomy. Meanwhile, the Directive allows the Member State to include a permit defence and/or a state-of-the-art defence and leave it to the Member State's descretion whether or not to include a mandatory insurance system and subsidiary state's liability. The majority of the Member States did not go beyond the minimum requirements, in that they do not oblige financial guarantees and allows for a permit and/or state-of-art-defence, without subsidiary state liability. It can be said that the this implementational tendency of the Member States significantly weakens the effectiveness of the Directive. Consequently, it is uncertain whether the Directive can realize the "polluter-pays" principle, preventive and precautionary principle and create a "level-playing field" for the industry in all Member State with respect to environmental liability.