The threshold for liability for ecological damage in the EU

The Habitats Directive ¹ and the Environmental Liability Directive (ELD) ² share a common aim: to contribute towards halting the loss of biodiversity in the European Union (EU). Their approaches, however, are very different. The Habitats Directive directs Member States to take measures to maintain or restore, at favourable conservation status, species and natural habitats protected by it and the Birds Directive. ³ The ELD requires operators whose activities cause an imminent threat of, or actual, environmental damage, including damage to species and natural habitats protected by the Habitats and Birds Directives (called ‘ecological damage’ in this chapter), to prevent or remedy it, respectively. ⁴ The threat of liability for remediating damage has the associated aim of inducing operators to carry out measures to prevent damage occurring. ⁵