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Comparative study on the implementation of the industrial emissions directive

Dr Ivano Alogna, Anthony Wenton

Comparative study on the implementation into the national legislation of certain EU Member States of an adapted burden of proof in the context of the Industrial Emissions Directive

This research project examines how the proposal to adapt the burden of proof for compensation claims under the Industrial Emissions Directive could be implemented into the domestic law of EU Member States.

Under the present framework, victims of violations of the EU Industrial Emissions Directive (IED) are, in the majority of cases, without an effective means of claiming compensation as they are unable to satisfy the procedural rules on the burden of proof that are generally applicable in Member States. More specifically, they struggle to provide sufficient evidence that the emissions in question have caused their damage.

Consequently, in April 2022, the EU Commission published its proposal for a revised IED, which contains a novel provision (Article 79a(4)) that aims to adapt the burden of proof to benefit the victims of pollution by large-scale industrial activities. Under the proposed amendments, where a claimant is able to provide 'sufficiently robust evidence' that a violation of the IED has caused, or significantly contributed to, damage to their health, there will be a rebuttable presumption that the defendant is liable.

While provisions that adapt the burden of proof are not entirely novel in EU legislation, this would be a first under the EU environmental law framework.

Aim and Methodology

This study provides an objective, comparative analysis of how the proposed adapted burden of proof would operate within the national laws of a representative sample of EU Member States, namely Bulgaria, France, Germany, Italy, the Netherlands, and Poland.

A network of country expert rapporteurs were commissioned to undertake research into the possible interactions of the proposed provision with relevant national legislation and related case law. The respective country reports covered both the elements of overlap as well as any potential conflicts that might exist.

This study synthesises the six country reports in order to identify similarities and differences with respect to how the provision might be implemented in the six national jurisdictions.

Key findings

  • The main national provisions that would interact with the proposed adapted burden of proof are found in civil law, civil procedural law, administrative law, and environmental law. Therefore, the compensation right and any burden of proof rules therein must not be confused with criminal law that is of a qualitatively different nature, with different requirements.
  • The concept of adapting the burden of proof in the interests of justice was not alien to any of the jurisdictions studied. Where the burden of proof is adapted in existing frameworks, the reasons included the need to achieve greater protection for victims in situations where the normal apportionment of the burden would unfairly prejudice their ability to seek a legal remedy, e.g. cases where the parties are in unequal relationships, such as employer-employee; cases where it is difficult for the claimant to access evidence; or cases involving scientific uncertainty (in conjunction with the precautionary principle). Regarding the proposed Article 79a(4) IED which would adapt the burden of proof in compensation claims based on damage to human health, the rules of evidence in the different jurisdictions show that the implementation of such a clause would not break new legal ground, but rather that room exists to expand currently existing rules on adapting the burden of proof to cover environmental cases under the IED.
  • Moreover, States have already successfully transposed other EU law provisions that adapt the burden of proof. In particular, adapting the burden of proof is now firmly anchored in EU anti-discrimination law (for example, Article 8 of the Racial Discrimination Directive) which all Member States have implemented into domestic law. Furthermore, the European Court of Human Rights has imported this regime into its case law on discrimination, thus providing further entrenchment of such presumptions in the Council of Europe Member States. Another pertinent example can be found in competition law where it is presumed that cartel infringements cause harm (Article 17 of the Antitrust Damages Actions Directive). None of the country reports identified that the implementation of these provisions opened the floodgates to excessive litigation. It is especially noteworthy that constitutional law has not been found to be an obstacle and nor do such presumptions offend the principle of subsidiarity.
  • The survey of existing national case law also confirmed that there were few examples of environmental pollution cases in which the burden of proof was adapted. Generally, it was observed that claimants struggle to prove causation in pollution cases without an adapted burden of proof. 

Overall, there exist no limitations, constraints or barriers deriving from national legislation in Bulgaria, France, Germany, Italy, the Netherlands, or Poland that would prevent the integration of Article 79a(4) IED.

This research was commissioned by ClientEarth.

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