In the Joined Cases of C-279/08 and C-380/08 the ECJ issued guidance on the interpretation of the powers of a competent authority, when using the Environmental Liability Directive (the Directive). It was held that an authority, when preventing and remedying environmental damage, is allowed to substantially alter the remediation measures from what has been decided with the operator. The authority is able to do this even when the measures had already begun to be implemented.

The ECJ did clarify that the ability of a competent authority to alter these remediation notices is subject to three conditions:

  • The operators are given a chance to be heard except when urgency of the situation requires immediate action by the authority
  • The views of the persons whose land is affected by the measures are taken into account
  • The authority must state in its decision the reasons for the alteration of the measures in order to justify them

In addition, the ECJ held that national authorities have the power, when using the Directive, to make the right of operators to use their land subject to a condition that they carry out the environmental remedial measures required before use. This power applies even when the land subject to the condition is not affected by the remedial measures. It was clarifi ed, however, that if the authority uses this power it must be justifi ed by the objective of preventing the deterioration or resurgence of further environmental damage.