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Brussels, ENV.E.4/HL. 1. Welcome


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Directorate E - Implementation & Support to Member States ENV.E.4 - Compliance & Better Regulation

Brussels, ENV.E.4/HL


Minutes of the 23rd ELD government experts meeting, consisting of 1st part by WebEx across the EU of 16 September 2020, 10:00 – 12:30

2nd part by WebEx across the EU of 7 October 2020, 10:00 – 12:30 3rd part by WebEx across the EU of 18 November 2020, 10:00 – 12:30

This document contains minutes of the 23rd ELD Government Experts Group Meeting that took place via WebEx across the EU in three parts on 16 September, 7 October and 18 November 2020, alwaysbetween 10.00 and 12.30 a.m. CET.

This document follows the agenda of the meeting that was shared with participants in advance. It presents the main points of the discussions held on each of the agenda items. The minutes refer to documents discussed at the meeting, together with reference to their specific titles, as presented in the material disseminated to the experts prior to the Meeting (e.g. Agenda (DOC1)) and the eventually agreed action points.

1st part by WebEx across the EU of 16 September 2020, 10:00 – 12:30

1. Welcome

a. Opening of the meeting and adoption of the agenda (DOC1)

Robert Konrad, European Commission (HoU of DG ENV.E.4), welcomed the participants and opened the first part of the 23rd ELD government experts meeting. A participants list is not available.

Robert Konrad presented the agenda of the Meeting (DOC1), which was adopted by the participants as proposed. Hans Lopatta, European Commission (DG ENV.E.4) requested the addition of two information points under AOB, which was also adopted without discussion.

b. Adoption of the summary report of the 22nd meeting (DOC2)



is required by its rules, based on the inter-institutional agreement, to publish all meeting documents, once they are made available to the meeting participants.

2. Revised draft ELD Multi-Annual Work Programme (MAWP) 2021 - 2024

Hans Lopatta presented the revised draft of the Multi-Annual Work Programme for better implementation of the ELD in the years 2021 to 2024 (DOC3b), moving section by section collecting comments. He explained the substantial changes in the document, following from the comments received by the government experts and internal considerations by the Commission. He invited the national experts to comment and adapted the text immediately pursuant to the comments and the discussion where it was possible and agreeable. Other parts of the text were highlighted yellow to provide the opportunity for further consideration and sending comments or which may need more discussion.

He invited the participants in the end to focus in the first place on the highlighted parts in their comments following the meeting.

Points raised by the experts during the discussion concerned for example: information about application of the relevant national legislative frameworks to environmental damage incidents; information on the experience gained in the application of the ELD; footnotes providing Spanish examples; relationship between Article 18(1) ELD and ELD country fiches; use of the Environmental Information System (EIS) for data gathering; use of national registers.

The revised draft MAWP, as adapted during the meeting’s discussion is attached to the draft meeting minutes, with the invitation for further comments (if possible, within four weeks).

3. New study contract ‘Improving implementation and the evidence base for the ELD’

Hans Lopatta provided a brief introduction into the new study on implementation and evidence base for the ELD carried out by a consortium under the lead of COWI and presented the project manager and lead researcher Professor Sándor Fülöp (Justice & Environment). Sándor Fülöp presented an overview of the project, covering the methodological approach, the various tasks (assessment of ELD implementation in all 27 Member States on the ground, examination of the application of the participatory and access to justice provisions, taking account of the EP Resolution on the ELD of 2017 and ongoing ECA investigation as feasible. He also presented the structure (template) of the questionnaire and provided information on the in-depth stage of the research for about half of the Member States, including its contend and the selection of those countries. He concluded the presentation by showing the timeline and milestones of the project (DOC4).

The Romanian government inquired about the party of the contract, the requested information from Member States and the questionnaire and templates. Mr. Fülöp answered that the lead contractor is COWI Belgium and that Justice and Environment are leading on the research and Prospect C&S on the organisation of the 7th ELD Stakeholder Conference in November (which is also one task of the contract). He also emphasized that the main objective is not duplicating the work already carried out by the Commission and the Member States, but by looking for and examining alternative sources of information (such as ‘Big Data’), mainly investigating the practical application on the ground with a focus on civil society and environmental NGOs.



4. Judgment of the Court of 9 July 2020 in Case C-297/19 (Naturschutzbund Deutschland — Landesverband Schleswig-Holstein eV v Kreis Nordfriesland)

The Commission presented a brief summary of the recent preliminary ruling in the abovementioned Case C-297/19 (DOC5), emphasizing the most relevant parts of the judgment in its two parts. Part one of the ruling concerns the interpretation of the latter part of the second indent in the third paragraph of Annex I ELD (criteria for the determination of significant damage to protected species and natural habitats) on those criteria, which exempt from the determination as significant damage. In brief, the key sentence: ‘It follows that management of a site covered by

the Habitats Directive and the Birds Directive can be regarded as normal only if it complies with the objectives and obligations laid down in those directives.’ Part two of the ruling concerns the

interpretation of ‘occupational activities’ in Article 2(7) ELD. In brief, the key sentence: ‘Hence,

the concept of ‘occupational activity’, in Article 2(7) of the ELD, is not limited solely to activities which are market related or are competitive in nature, but encompasses all activities carried out in an occupational context, as opposed to a purely personal or domestic context, and, therefore, activities carried out in the public interest pursuant to a statutory assignment of tasks.’

The German government expert explained that the German government sent comments to the Court only on the second part, very similar and in any case in line with the ruling of the CJEU, as this was the main question debated in the earlier German court proceedings. The German government expert agreed with the decision in that regard. The question on Annex I came up only in the request for a preliminary ruling by the Federal Administrative Court and was not regarded by the government as similar important. The ECJ judgement was surprising in this context as the ECJ detected a language difference between the German version and other language versions of the ELD. This lingual difference has not caused any practical consequences in the application of the ELD, but nevertheless the German Government has already decided on a clarifying amendment of the implementing legislation.

5. Commission information on state of play of the new horizontal infringement procedure on Article 12(1) ELD (‘A2J in ELD’)

Hans Lopatta informed about the background and purpose of the recently launched horizontal infringement procedure concerning the transposition of Article 12(1) ELD into the national legislation. It is based on the judgment in case C-529/15 of the CJEU which concerned a water damage case in Austria and covered one question on the proper interpretation of the aforementioned provision. As the Court had ruled that all persons finding themselves in either one of the three situations listed in letters (a), (b) or (c) of sub-paragraph one to Article 12(1) ELD are entitled independently of the other letters to request a decision by the competent authority, the Commission saw it as its duty to ensure the correct transposition in all Member States. This is due to the fact that the Commission uses infringement procedures based on priorities, and that one priority relates to the conformity of national legislation used to give effect to the provisions of directives. Ensuring access to justice in environmental matters is another Commission enforcement priority. The effect of the Folk case is that the Commission must ensure that national legislation provides for all three categories of natural or legal persons being entitled to make a request for action.



case by a Reasoned Opinion or to close the case. This decision may not be implemented before the end of the year for substantial and procedural reasons.

In the following discussion, Spain, Germany and Belgium expressed their ‘surprise’ over the immediate opening of an infringement procedure by the Commission without having had the opportunity for bilateral talks or a discussion in the expert group or at least by receiving Pilot requests so that they could explain their position. The Spanish government expert provided that sent some preliminary comments trying to clarify their position and expressed his view that the Spanish legislation complies fully with Article 12(1) ELD, including the letter (a). Out of 42 recognized Spanish ELD cases, four of them were initiated by persons requesting a decision under Article 12(1) ELD. The German government expert urged the Commission to return to its previous practice of giving the Member States a preliminary opportunity for comments before opening an infringement case.

6. AOB

The Commission had two points for information to the group:

 The European Court of Auditors carries out since the end of last year an own-initiative investigation on the implementation of the polluter pays principle, which covers a broad range of EU legislation and activities, but focusses primarily on the ELD. The work includes several interviews with various Commission Services, but also with some Member States (those concerned, know). The final report may be expected still for this year.

 The European Parliament launched this year an own INI-initiative on the environmental responsibility of operators which covers mainly the Environmental Liability Directive and the Environmental Crime Directive. A workshop at the EP is tentatively scheduled for end of October, the draft report is expected for the beginning of December and the adoption of the final report likely for the first semester next year.

Action Points:

• Commission to send adapted revised draft MAWP 2021 - 2024 (done)

• Member States to provide written comments on the adapted revised draft MAWP 2021 – 2024, if possible within four weeks

• Commission to revise the draft MAWP 2021 – 2024 according to the comments received until the middle of October and send out final draft MAWP 2021 – 2024 for final

comments in view of adoption at the third ELD GEG part to the 23rd meeting on 18 November

2nd part by WebEx across the EU of 7 October 2020, 10:00 – 12:30 1. Welcome



2. Draft ELD Guidelines on Environmental Damage (2nd round)

Hans Lopatta, DG Environment, E.4, presented a summary of the consultation of the 2nd revised draft ELD Guidelines on Environmental Damage and the most relevant comments received and how they were followed up by the 3rd revised Guidelines (DOC3), which were circulated into a last consultation with the ELD government experts and the members of the Commission inter-service group until end of October. He completed the presentation with an outlook on the next steps until the adoption of the Guidelines, planned for January 2021 (DOC2).

The Spanish government expert commented that the REFIT and other Commission documents suggest that Member States do not make enough effort to implement the Directive, but the Commission can also contribute to the implementation of the ELD, for example with this guidance document. This is a key issue in the ELD implementation, and in order to be useful the Commission should take a more practical and technical approach towards the Guidelines. He complained about the very short notice within which the 4th version of the Guidelines were received by the government experts (only one day ahead of this meeting). Further, he criticised that important and technical comments made by Spain and other Member States have not been taken into account in the new version distributed, without giving an explanation on the technical or legal grounds on which they have not been taken into account. He requested the Commission to reconsider its approach and generally speaking to listen to the Member States views, which have the real life experience in the implementation of the Directive. He also made some specific comments, in particular as regards the controversy in the water damage section of ‘waters’ v. ‘water bodies’, already sent by written procedure several times before:

The wording of article 2.1b) of the Directive 2004/35/CE clearly states that water damages are any damage that significantly adversely affects the ecological, chemical or quantitative status, as defined in Directive 2000/60/EC, of the waters concerned, and in Directive 2000/60/EC, the status is linked only to water bodies.

If a damage does not affect the status of a water body, then the ELD can not be applied as a damage to the resource water. In these cases it does not mean that the damage can not be dealt with, because apart from other possibilities within the ELD, the water legislation can be applied to prevent and remedy them.

Therefore, it is clear from a technical and legal point of view the significance has to be evaluated at water body level, and it is not possible to interpret otherwise without giving a solid legal and technical explanation from the Commission. It would be necessary to amend article 2.1b) of the Directive to interpret otherwise.

As a conclusion, he asked the Commission to change the current drafting of the document making reference to ‘water bodies’ for the evaluation of the significance, which was also the conclusion of the Refit document, and would be the only correct or applicable way of dealing with water damage in connection with the Water Framework Directive. He requested, if the Commission does not accept this change, asked also by other Member States, to reflect in the document that some Member States does not agree with this interpretation.



Hans Lopatta replied that the nature of a Commission Notice is legal-interpretative and not technical, but that the Commission will see where this is possible to extend the technical aspects. He disagreed with the view that comments have not been taken into account. All comments have been considered and analysed, but in the end not all comments could have been taken into account. However, more than half of the comments, probably around two thirds of the comments have been taken into account, however not always literally or exactly in the way how they were presented. Issues like the controversial views on water damage regarding the notions of ‘water bodies’ and ‘waters’ are crucial for the effective application of the Directive. The Commission will however further look into some more technical arguments, not yet reflected in the 4th version during the month of October.

The Finnish ELD government expert investigated whether the Commission had considered their comments on GMO-caused environmental damage. Hans Lopatta replied that also these Finnish comments have been considered, but that Member States in their 2013 ELD reports had not reported one single ELD case caused by GMOs. A fact which he found not surprising, given that GMOs may usually rather cause damage to traditional agriculture and hence biodiversity not covered by the notions of ‘protected species and natural habitats’ under the Habitats Directive. However, Liam Cashman, DG Environment, E.4, added that these were interesting Finnish comments, belonging to a category of comments which the Commission still has to consider for the next and last revision of the draft Guidelines (together with the comments received until end of October).

The Portuguese government expert referred that PT also sent comments to the document and that they had higher expectations for it. The document includes a comprehensive analysis with a good systematization of the legal provisions applicable, but lacks the concrete technical guidelines envisaged. Clear-cut criteria to support the identification of an environment damage or an imminent threat of damage, per environmental domain, from a practical point of view, and therefore improving the application of the Directive by Member States was expected but not developed in the document. As it is considered by the Commission a “document of legal nature” she reiterated the suggestion to include, at least in the Conclusions, a table with a synthesis of the legal comprehensive analysis per domain performed in the previous chapters of the document. Furthermore, given the lack of an EU Soil legislation, concerning damage to land, she expressed that there is room for guidelines at least on the concepts and on the methodology for human health risk assessment foreseen to be developed.

3. ELD evidence base - data and information gathering for 2022 (2nd round)



digital transition is considered an important enabler to implement the Green Deal objectives, including better implementation of existing legislation. In the EU strategy for data, the Green Deal ambitions are supported by the development of a common EU Green Deal data space. This common data space should make environmental data from public, private and academic sectors accessible for reuse by others to boost the data economy and improve policy implementation and development. The push towards more open data and active dissemination of data is also recorded in the Open Data Directive. The Council Conclusions on “digitalisation for the benefit of the Environment” that are being prepared by the German Presidency for the Working Party on the Environment also highlight the importance of reliable, accessible, comparable, high-quality and up-to-date data for fact-based EU environmental policy and the need to facilitate the use of digital technologies and innovative methods for environmental monitoring and reporting. It is clear that we are on a turning point in the digital transition where the way we work with data is changing rapidly. The old practices of preparing dedicated packages of information for dedicated processes is increasingly being replaced by more active data sharing through data services. Technologies such as Earth Observation, Internet of Things sensors, or Artificial Intelligence are being explored to assess the possibility of using alternative sources of data to reduce the administrative reporting burden and to get access to more timely if not real-time data.

Hans Lopatta then continued with a presentation on the current state of play of the preparation for the data collection exercise in 2022, the legal basis in the ELD and in the Access to Environmental Information Directive 2003/4/EC, including the minimum data quality needs and the issues to be considered and discussed next (DOC4). He emphasized in the latter context the need to decide on the approach vis-à-vis the tool to be used for providing the data in 2022, i.e. the choice between the use of the ELD country fiches and alternative options, or a combination thereof.

Adam Nagy from DG Environment, E.4, referred in an intervention to the recently adopted Environmental Monitoring and Reporting Regulation 2019/1010 and the newly amended ELD information requirements, based on Article 18 and Annex VI ELD, in accordance with the active dissemination requirements under Directive 2003/4/EC. For the time being, as long as the EIS is not operational, the data input should be provided by the Member States through the country fiches or alternative tools, as mentioned. He emphasized that active dissemination is the rule pursuant to Article 7(2) and (4) of the Environmental Information Directive. All information held by or for public authorities, which could enable the public likely to be affected to take measures to prevent or mitigate harm arising from the threat has to be disseminated, immediately and without delay. He underlined the needs for strengthening the transparency aspects and for ensuring that data pursuant to Annex VI ELD must be comparable. Therefore, the information provided by Member States shall be accurate, correct and contain appropriate information in comparable format and content to allow comparison and analysis. Moreover, the information should not be limited to the data mentioned in Annex VI ELD but cover, as far as available, also the experience gained in the application of the Directive (Article 18(1) and Annex VI ELD).

The Dutch ELD government expert commented that a comparable set of data may be impossible to the achieved, given the framework character of the ELD which allows for different options in transposition and implementation across the EU. Such differences are a result of the choice taken by Member States and make it difficult to ensure comparable data.



The Spanish government expert expressed support for the Dutch and German arguments. Spain would follow a similar approach as in Germany for the gathering of information from the regional competent authorities. They are in favour of an approach as in 2013. They do not agree with some issues included by the Commission in the country fiches, and therefore would prefer not using them for the reporting. The use of country fiches for the reporting was proposed by the Commission, and Spain would agree to use them for the reporting, only if the information included in them corresponds with the one officially provided by the Member States according to the requirements established in Article 18 and Annex VI of the Directive, and if any other information would have to be validated by the Member States before its final inclusion in the country fiche.

Also the Portuguese and the Romanian ELD government experts supported the views of Germany and Spain.

Hans Lopatta replied that the ELD is not a framework directive, at least not in the common sense of a directive underneath with daughter directives. He pointed to the many problems encountered by the Commission in the last ELD reporting which made it very difficult to draw meaningful conclusions on the effectiveness of the Directive due to the highly divergent data received from the Member States, and this despite the fact that a ‘non-binding guidance’ had been jointly developed to ensure good data quality including coherence and comparability.

Reflecting on the views heard from the government experts he made an attempt to accommodate the different approaches towards data gathering by modifying the relevant wording in the draft MAWP as such “For the time being, as long as the EIS is not operational, the data input should

could be provided by the Member States through the country fiches, as mentioned in activity 1.1 above, second paragraph. However, or alternative ways of data collection should remain an option as long as necessary.” The German government expert expressed support for this proposal

and no other government expert objected it.

Henrik Laursen, European Commission (Deputy HoU of DG ENV.E.4) commented that the Commission is legally obliged to carry out an evaluation of the ELD in 2023. It is crucially important that we are not ending up in a situation where the Commission has no clear view of how the Directive is working because the data received are disparate, incomparable and insufficient. We need Member States to help, as there is the need to rely on data that enable the Commission to make a meaningful assessment.

The German ELD government expert commented that they do not fully share the view of the Commission on the Environmental Information Directive but they share the view that the ELD data collected in 2013 were not fully comparable. This was however also a function of the recommendation in the non-binding guidance that Member States should provide data beyond the scope of Article 18 and Annex VI ELD. He recommended the Commission therefore not to extend the data collection. He explained that there is no directive on environmental supervision or monitoring, which may be at the root of the problems. He finally provided that putting more money into the ELD would be the wrong way.

4. Report on the completed SIovenian LIFE project on ELD awareness raising 2017 – 2019



5. AOB


3rd part by WebEx across the EU of 18 November 2020, 10:00 – 12:30 1. Welcome

Robert Konrad, European Commission (HoU of DG ENV.E.4), welcomed the participants and opened the third part of the 23rd ELD government experts meeting. A participants list is available in a separate excel table. Robert Konrad presented the agenda of the Meeting (DOC1), which was adopted by the participants as proposed.

2. Final draft ELD MARWP 2021 – 2024 (3rd and last round)

Hans Lopatta, DG Environment, E.4, presented the draft Multi-Annual Rolling Work Programme 2021 – 2024, as agreed after the last discussions (DOC2) and explained the only introduced changes relating to the insertion of the capital letter “R” for “Rolling” (in order to express the flexibility to adapt to changes needs and new developments) and to the necessary adaptations in case the text would be approved on the same day (changes on pages 3 and 11 to adapt the text to the date of approval). He also explained why only annexes 1 and 3 were deleted but annex 2, showing the intervention logic for the Directive, should be kept at least until the next evaluation of the ELD.

The Dutch ELD government expert had two comments concerning page 12, and consequently the words “annual review and” were deleted in the meeting.

The Danish government expert asked on eventual financial consequences for Member States as regards for example the implementation of training programmes. Hans Lopatta explained the purpose of the training programme is to improve the implementation of the ELD, to make it more fit for purpose not on a legally binding basis, but on the basis of a common understanding that the proposed measures are useful. Member States are not compelled to introduce the measures and had so far barely any costs, instead the Commission had some expenses relating to external support contracts.

Approval: The draft MARWP 2021 – 2024 was then unanimously approved in this last discussed version by the ELD GEG.

3. Information on last comments received from ELD government experts and ISG group members and final draft guidelines on environmental damage (5) sent to Commission ISC

Hans Lopatta provided under this point for information a brief presentation on the state of play and discussion of the last developments on the basis of a ppt. presentation (DOC3).



than 200 comments received already in the summer consultation meticulously, and that it continued to do so with the last comments received from the ELD government experts in the consultation of October. That would not mean that all comments can be taken into account or will be taken into account exactly in the manner or in the places provided.

The Spanish ELD government expert referred to the previous explanation by HL, made during his presentation that comments are and will be considered together with the experts of the relevant thematic units in DG Environment or in other Commission services, and questioned how the colleague of the water unit in DG Environment will be consulted, and how it would be possible to see the changes, if the finalisation of the guidelines is already foreseen for the end of November. He referred more extensively to the Spanish comment on page 52 of the draft guidelines and asked why the Commission contradicts itself, when it argues in the guidelines something different than in the REFIT evaluation of 2016. HL replied that another round of consultation is not foreseen and was never planned, but that the Commission will find a solution which is the best possible in conformity with the Water Framework Directive and the ELD, and that colleagues who provided last comments may, as appropriate also be involved in the last changes.

The Dutch ELD government expert took the same position with regard to “water bodies” as the predecessor and pointed out that the directives in this relevant context (Birds Directive, Habitats Directive, Water Framework Directive, Marine Strategy Framework Directive) are to be coherent and consistent. HL responded that the principle of the coherent interpretation of EU legislation needs to be respected, but that also the genuine objectives of the various directives need to be respected. He repeated that the Commission will strive to find the best solution with regard to the interpretation of the ELD in compliance with the interpretation principles for EU law, as applied by the CJEU.

4. Follow-up to the IMPEL CAED project

The Italian expert who is at the same time the leader of the IMPEL CAED project provided an update of their work (DOC4). HL remarked the high quality and usefulness of the project. It is very well considered, structured and expressed that the group could look ahead to a useful practical guide to be developed over the next year and possible training measures could be offered, based thereof.

5. Follow-up contract to financial security study 2019 – 2020: ‘Facilitating enforcement of the ELD’

Valerie Fogleman of Stevens & Bolton presented then an update on the first follow-up project on the big Financial Security study, which has been approved in May 2020, a project titled “Facilitating ELD Enforcement” (DOC5).

The Dutch government expert commented with regard to the referred Moerdijk accident of 2011, which was mentioned in the presentation an example where the ELD should have been applied instead of other national legislation, that the applied Dutch legislation was more stringent, for instance as regards pollutants thresholds. Ms Fogleman disagreed as the national legislation may in some respect be stricter but not in all respects and mentioned for example the requirements for participation and access to justice as well as the remediation standards regarding complementary and compensatory remediation as stricter requirements in the ELD.

6. FR/BE/NL update on the Tereos incident (damage assessment and remediation)



on the past developments since the last information on the Tereos incident of April 2020 in respect of the transboundary cooperation in the exchanges between France, Belgium (Walloon and Flemish Region) and the Netherlands. The discussions are since held in the framework of the International Commission for the protection of the river Scheldt, which provides a particular format for such cross-border exchanges. Following the request of the UN-ECE Secretariat a coordination group has met on 4 June and two working groups were established to acknowledge the topic and to provide recommendations. In a third meeting in July measures by the authorities regarding the installation have been discussed. In August was a second expert convened on the entirety of the river Scheldt. In the Walloon and Flemish Regions studies on the environmental damage would be ongoing. The Scheldt Commission will be reconvened in December. In addition, also bilateral contact with the Walloon Region have taken place; studies are awaited. On 4th of December all local players on the French and Belgian side (Walloon Region and Flemish Region) as well as the company will be brought together in a meeting to discuss the case.

Moreover, he gave an update on the survey of the damage, which started immediately after the 11th of April; several Prefectoral Decrees had been adopted since the occurrence of the incident, ordering a geo-technological study, the installation of the mapping of the effects etc. In a second step in June Tereos was requested to submit a report by a supplementary Decree, for the completion of the accident report in steps. The assessment of the environmental damage would be ongoing on the local level and information is shared at the local level, including an analysis carried out by the local authorities.

The Belgian ELD government expert specified that the International Commission for the protection of the river Scheldt is focussing on determining why the early warning system wasn’t activated and how to remedy that in the future - but that this structure is not the only coordinating body to be used. A meeting between the French, Walloon, Flemish and Dutch authorities took place in May 2020 as well as a bilateral meeting in June to discuss how handle the incident and request that countries/regions that had suffered damage due to an almost zero concentration of oxygen in the river Scheldt for a number of days be included in the determination of remediation measures.

The Dutch ELD government expert had not much more to add, but expressed the hope that a look will be also given on the role of the authorities in order to learn from this lesson for possible future transboundary incidents.

7. AOB


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