Flowchart for the applicability of ELD

Figure 12 - ELD applicability flowchart.

For the ELD to apply, the following pre-conditions must apply:

None of the exemptions in Article 4 of the ELD must apply;
The damage or imminent threat and occupational activity must be within the temporal scope of the ELD;
There must be damage or an imminent threat of damage to a natural resource protected by the ELD;
The damage or threat must be caused by an occupational activity; and
For water and land damage, the damage or threat must be caused by an occupational activity listed in Annex III of the ELD.

Note: many individual Member States have extended the scope of their Environmental Liability regimes beyond the scope of the ELD. Hence, it is important to refer to domestic legislation on the above points, in addition to the ELD itself.

Flowchart in fig. 12 provides a screening assessment for damage under ELD. The flowchart can be used either when you are aware of the PRESSURE (STARTING POINT X), or when you are not yet aware of the PRESSURE but you discover an IMPACT (STARTING POINT Y) on natural resources protected by ELD.

* Refer to domestic legislation when evaluating:

temporal scope of ELD;
application of strict and fault-based liability regimes to natural resources under ELD (in this practical guide, the scope of water and land damage is extended beyond Annex III activities where there is fault or negligence);
application of the permit and state-of-the-art defenses.

Moreover, note that:

"IMPACT" means adverse effects on reference concepts of a natural resource under ELD;
"PRESSURE" means damaging occurrences and damage factors exposing protected natural resources under ELD to an IMPACT or to a potential IMPACT;
"DRIVER" means occupational activity.