Bartolozzi (PPE-DE). – (IT) Mr President, ladies and gentlemen, the position of the Committee on Legal Affairs and the Internal Market outlined in the recommendation tabled by Mr Manders - whom I thank for the enormous amount of work he has done - takes the right line. Indeed, it does not make any substantial changes to the Council’s approach but clarifies a number of its fundamental principles so that the directive can be implemented in a more uniform manner over Union territory.

Given the impact that the regulation will have on industrial activity, we deem it necessary to remove the asymmetry between the legislation of the countries of the Union so as to avoid distortions to trade or to competition between companies. However, a number of principles must be clearly stressed: we need to avoid the concept of ‘operator’ being extended to parties responsible for monitoring activities. The identification of merely potential damage is contrary to the principles of legal certainty and could therefore lead to lengthy disputes which cannot be addressed with the technical and scientific instruments available.

The operators responsible for the damage must have the option of taking the necessary measures themselves and informing the competent authorities in due time. Intervention on the part of the authority, where either preventive or remedial measures are concerned, should be limited to cases in which the operator is not prepared to act or is unable to do so, in that it is not acceptable for the authority itself to be given the power to take the unquestionable decision of adopting such measures itself.

Clearly, therefore, such intervention only becomes necessary in the case of what are known as ‘orphan’ or ‘public’ sites, or in the event that the operator fails to act. These provisions must be laid down so that decisions are not left too much to the discretion of the Member States. The text of the common position states that the individual Member States may, at their discretion, grant exemptions for exceptions where damages are caused by an emission or activity or event allowed in applicable laws and regulations or in an authorisation issued to the operator or which was not considered to be harmful according to the state of scientific and technical knowledge at the time when the emission was released or the activity took place.

As regards the apportioning of the burden of costs where the damage has been caused by more than one party, the Council has given each Member State the right to provide for both joint and several, and proportional liability, according to the national legislation in force. The apportioning of joint and several financial liability, in addition to being in blatant conflict with the ‘polluter pays’ principle, would certainly make it more difficult, if not impossible, for operators in production sectors to calculate insurance premiums and other financial security.

Liability and related costs must, therefore, only be apportioned on fair, reasonable bases, with the requirement, moreover, that each operator performs a part of the remedial operation which corresponds to that operator’s share of the liability.