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Parliamentary questions
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18 April 2019
Answer given by Mr Vella on behalf of the European Commission
Question reference: E-001044/2019

Article 5 of Directive 2004/35/EC(1) is applicable in case of an imminent threat of damage(2). The operator of the authorised activity which will cause the damage has to take the necessary preventive measures without delay. The competent authority shall require that the preventive measures are taken by the operator.

In this regard, it is not clear to which extent the scenario referred to by the Honourable Member might be considered as an imminent threat of damage, within the meaning of Article 2(9) of Directive 2004/35/EC, i.e. a ‘sufficient likelihood that environmental damage will occur in the near future’.

It is anyway up to the competent national authorities to assess this element in the light of the definition laid down in the directive. Without this clarification, it is not possible for the Commission to say whether the directive is applicable in this case.

Member States have the primary responsibility for implementation of the EU Directives and ensuring that environmental objectives are fulfilled, including those of the Water Framework Directive (WFD)(3) and the Groundwater Directive(4).

It is for the Member States competent authorities to determine the potential risk of the pipes on groundwater pollution and prevent and limit discharge of pollutants.

In addition, according to the WFD, any new project which is likely to have a significant impact, such as deterioration, on the quality of one or more water bodies can only be authorised as an exemption to the environmental objectives set in Article 4(1) of the directive if it is of overriding public interest and fulfils the conditions detailed in Article 4(7).

One of those conditions is that the exemption and its justification be appropriately mentioned in the corresponding River Basin Management Plan.

As these Plans have to be subject to public consultation, this is the best opportunity for the concerned public to make their concerns known to the relevant authorities and ensure that they are taken into account in the permitting process.

(1)Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143, 30.4.2004, p. 56.
(2)i.e. when there is sufficient likelihood that environmental damage will occur in the near future
(3)Directive 2000/60/EC, OJ L 327, 22.12.2000, p. 1-73.
(4)Directive 2006/118/EC, OJ L 372, 27.12.2006, p. 19‐31.

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