Raffinerie Mediterranee (ERG) SpA, Polimeri Europa SpA and Syndial SpA v Ministero dello Sviluppo economico and Others (C-379/08) and ENI SpA v Ministero Ambiente e Tutela del Territorio e del Mare and Others

This reference for a preliminary ruling concerns the interpretation of the ‘polluter pays’ principle, Directive 2004/35/EC 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 reference was made in proceedings between Raffinerie Mediterranee (ERG) SpA, Polimeri Europa SpA and Syndial SpA and various national, regional and municipal authorities in Italy concerning the measures for remedying environmental damage adopted by those authorities in relation to the Augusta roadstead (Italy), in the vicinity of which are located the installations and/or land of those companies. The Court held that the competent authority is permitted to alter substantially the measures for remedying environmental damage which were chosen at the conclusion of a procedure carried out on a consultative basis with the operators concerned and which have already been implemented or begun to be put into effect. However, in order to adopt such a decision, that authority must: — give the operators the opportunity to be heard, except where the urgency of the environmental situation requires immediate action on the part of the competent authority; — invite, amongst others, the persons on whose land those measures are to be carried out to submit their observations and take them into account; and — state in its decision the grounds on which its choice is based, and, where appropriate, the grounds which justify the fact that there was no need for a detailed examination or that it was not possible to carry out such an examination due, for example, to the urgency of the environmental situation. Also, the Court held that the directive on environmental liability did not preclude national legislation which permitted the competent authority to make the exercise by operators of the right to use their land subject to the condition that they carry out the environmental recovery works required, even though that land was not affected by those works because it had already been decontaminated or had never been polluted. However, such a measure had to be justified by the objective of preventing a deterioration of the environmental situation or, pursuant to the precautionary principle, by the objective of preventing the occurrence or resurgence of further environmental damage on the land belonging to the operators which was adjacent to the whole shoreline at which the remedial measures were directed.