Act No. 167/2008 Coll., on prevention and remedying environmental damage and amendement on some laws

The Act No. 167/2008 Coll., on prevention and remedying environmental damage and amendement on some laws (PDF, 138 kB) (hereinafter „Environmental Liability Act“ – „ELA“ ) is transposition of the Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage. The Act came into force on 17 August 2008 in the Czech Republic.

The ELA defines the basic terms and stipulates what is considered as a damage to the environment. Damage is conceived as “a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly”. The ELA applies to:
damage to protected species and natural habitats – any damage to species and habitats protected under the Czech Nature and Landscape Protection Act (No. 114/1992 Coll.) and to species listed in ministerial ordinance that has significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species; the criteria for assessment of significance of such affects are set in Annex III of the ELA;
water damage – any damage that significantly adversely affects the ecological, chemical or quantitative status or ecological potential, with the exception of adverse effects where art. 23a par. 4 and 7 of the Water Act (No. 254/2001 Coll.) applies;
land damage – any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction on or under the land surface, of substances, preparations, organism or micro-organisms.

The main principles of the ELA:
Principle of Prevention
Polluter Pays Principle
Principle of Strict Liability
Principle of Natural Restitution

The ELA establishes duties and rights of natural and legal persons on the occasion of prevention and remedying of environmental damage on protected species and natural habitats, water and land and the power of state administration. The ELA applies to environmental damage or their imminent threat caused by operational activities listed in Annex I of the ELA (strict liability to every kind of environmental damage) or by operational activities non-listed in Annex I of the ELA (non-fault liability to environmental damage on protected species and natural habitats).

The ELA introduces a system of preventive action (Art. 6) and remedial action (Art. 7), in order to prevent occurrence of environmental damage and to remedy such damage. The costs of preventive and remedial measures should be borne primarily by the operator who caused environmental damage and who is legally liable for the damage. The ELA provides for “financial defences” allowing the operator not to bear the prevention and remediation costs. The ELA provides mandatory (art. 8.3 of the ELD - damage caused by a third party or resulted from compliance with a compulsory order or instruction of a public authority) and optional (art. 8.4 of the ELD – “permit defence” and “state of the art defence”) financial defences.

Competent authorities under the ELA are the Czech Environmental Inspection (established by the Act No. 282/1991 Coll.), administrations of national parks and protected landscape areas (on national parks and protected landscape areas under the Act No. 114/1992 Coll.) and military authorities (on military areas under the Act No. 222/1999 Coll.). These competent authorities are justified to decide which operator has caused the damage or the imminent threat of damage, to assess the significance of the damage, to determine which remedial measures should be taken according to the Annex IV of the ELA or to issue fines.

The ELA provides for mandatory financial security for operators of the operational activities listed in Annex I of the ELA – in five years after the entry into force of the ELA (from 1 January 2013). The ELA set some exceptions to the duty of financial security, e.g. for operators with ISO 14 000 certification or with registration in the Program EMAS according to the Council Regulation (EC) No. 761/2001 of 19 March 2001 allowing voluntary participation by organization in a Community eco-management and audit scheme (EMAS).