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 (“ELD”) establishes the main framework on environmental liability. This construction is based on the polluter pays principle to prevent and remedy environmental damage.

In 2007, the ELD was transposed in Romania by way of Government Emergency Ordinance no. 68/2007 on environmental liability with regard to the prevention and remedying of environmental damage (“GEO 68/2007”).

GEO 68/2007 establishes a dual liability regime:

• objective liability, representing environmental damage caused by any type of professional activity referred to in Annex 3 and to any imminent threat of such damage caused by any of these activities. The activities in Annex 3 typically include dangerous waste plants, industrial installations, hazardous substances production facilities, waste water discharge operations, etc. Therefore, fault or negligence on the part of the operator is not prerequisite to establish environmental liability.

• subjective liability, representing damage to species and natural habitats, and to any imminent threat of such damage caused by any business activity other than those set out in Annex 3 whenever the operator acts intentionally or negligently.

The scope of GEO 68/2007 does not give individuals or companies the right to compensation as a consequence of environmental damage or an imminent threat of such damage. In these situations the provisions of common law are applicable (i.e. Romanian Civil Code).

GEO 68/2007 provides 2 (two) types of actions, namely prevention measures and remedial actions. In case of imminent threat of harm on the environment, an operator has a duty to take immediate prevention measures and within 2 (two) hours of becoming aware of emerging threats, to inform the County Environmental Protection Agency (“EPA”) and the Environmental Guard.

In case of an actual environmental damage, the operator has a legal obligation to duly notify the EPA and the Environmental Guard. The remedial actions shall be carried out by the operator, acting under the instructions of the authorities.

The costs for the preventive or remedial actions are borne by the operator (polluter), including when the actions where carried out directly by EPA. There are, however, certain circumstances in which the operator may be relieved of his financial responsibility.

EPA has the right to initiate recovery procedures for the costs incurred by preventive or remedial measures against the operator or, where applicable, against third parties responsible for the damages or the imminent threats. GEO 68/2007 provides that EPA has the right to set up a mortgage on the operator’s real estate property, as well as a garnishment on its bank account as means of cost recovery. The measures can be registered with the Land Registry and the Electronic Archive for Security Interests in Movable Property, respectively.

Other rules for environmental liability are:

• when environmental damage or the imminent threat of such damage was caused by several operators, then GEO 68/2007 sets out a joint liability in bearing the costs for preventive or remedial measures;
• if the operator causing environmental damage or an imminent threat of such damage is part of a consortium or a multinational company, the operator and the consortium shall be held accountable jointly for the costs.

It’s important to consider that the ELD provides that Member States may maintain or adopt more stringent provisions in relation to the prevention and remedying of environmental damage. Therefore, Romania has the possibility of imposing a stricter liability regime for environmental damages.