CONVENTION
ON CIVIL LIABILITY FOR DAMAGE RESULTING FROM ACTIVITIES
DANGEROUS TO THE ENVIRONMENT
(ETS № 150)
(Lugano, 21.VI.1993)
The member States of the Council of Europe, the other States and the European Economic Community signatory hereto,
Considering that the aim of the Council of Europe is to achieve a greater unity between its members;
Noting that one of the objectives of the Council of Europe is to contribute to the quality of life of human beings, in particular by promoting a natural, healthy and agreeable environment;
Considering the wish of the Council of Europe to co-operate with other States in the field of nature conservation and protection of the environment;
Realising that man, the environment and property are exposed to specific dangers caused by certain activities;
Considering that emissions released in one country may cause damage in another country and that, therefore, the problems of adequate compensation for such damage are also of an international nature;
Having regard to the desirability of providing for strict liability in this field taking into account the "Polluter Pays" Principle;
Mindful of the work which has already been carried out at an international level, in particular to prevent damage and to deal with damage caused by nuclear substances and the carriage of dangerous goods;
Having noted Principle 13 of the 1992 Rio Declaration on Environment and Development, according to which "States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage; they shall also co-operate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction";
Recognising the need to adopt further measures to deal with grave and imminent threats of damage from dangerous activities and to facilitate the burden of proof for persons requesting compensation for such damage,
Have agreed as follows:
Chapter I. GENERAL PROVISIONS
Article 1
Object and purpose
This Convention aims at ensuring adequate compensation for damage resulting from activities dangerous to the environment and also provides for means of prevention and reinstatement.
Article 2
Definitions
For the purpose of this Convention:
1 "Dangerous activity" means one or more of the following activities provided that it is performed professionally, including activities conducted by public authorities:
a the production, handling, storage, use or discharge of one or more dangerous substances or any operation of a similar nature dealing with such substances;
b the production, culturing, handling, storage, use, destruction, disposal, release or any other operation dealing with one or more:
- genetically modified organisms which as a result of the properties of the organism, the genetic modification and the conditions under which the operation is exercised, pose a significant risk for man, the environment or property;
- micro-organisms which as a result of their properties and the conditions under which the operation is exercised pose a significant risk for man, the environment or property, such as those micro-organisms which are pathogenic or which produce toxins;
c the operation of an installation or site for the incineration, treatment, handling or recycling of waste, such as those installations or sites specified in Annex II, provided that the quantities involved pose a significant risk for man, the environment or property;
d the operation of a site for the permanent deposit of waste.
2 "Dangerous substance" means:
a substances or preparations which have properties which constitute a significant risk for man, the environment or property. A substance or preparation which is explosive, oxidizing, extremely flammable, highly flammable, flammable, very toxic, toxic, harmful, corrosive, irritant, sensitizing, carcinogenic, mutagenic, toxic for reproduction or dangerous for the environment within the meaning of Annex I, Part A to this Convention shall in any event be deemed to constitute such a risk;
b substances specified in Annex I, Part B to this Convention. Without prejudice to the application of sub-paragraph a above, Annex I, Part B may restrict the specification of dangerous substances to certain quantities or concentrations, certain risks or certain situations.
3 "Genetically modified organism" means any organism in which the genetic material has been altered in a way which does not occur naturally by mating and/or natural recombination.
However, the following genetically modified organisms are not covered by the Convention:
- organisms obtained by mutagenesis on condition that the genetic modification does not involve the use of genetically modified organisms as recipient organisms; and
- plants obtained by cell fusion (including protoplast fusion) if the resulting plant can also be produced by traditional breeding methods and on condition that the genetic modification does not involve the use of genetically modified organisms as parental organisms.
"Organism" refers to any biological entity capable of replication or of transferring genetic material.
4 "Micro-organism" means any microbiological entity, cellular or non-cellular, capable of replication or of transferring genetic material.
5 "Operator" means the person who exercises the control of a dangerous activity.
6 "Person" means any individual or partnership or any body governed by public or private law, whether corporate or not, including a State or any of its constituent subdivisions.
7 "Damage" means:
a loss of life or personal injury;
b loss of or damage to property other than to the installation itself or property held under the control of the operator, at the site of the dangerous activity;
c loss or damage by impairment of the environment in so far as this is not considered to be damage within the meaning of sub-paragraphs a or b above provided that compensation for impairment of the environment, other than for loss of profit from such impairment, shall be limited to the costs of measures of reinstatement actually undertaken or to be undertaken;
d the costs of preventive measures and any loss or damage caused by preventive measures,
to the extent that the loss or damage referred to in sub-paragraphs a to c of this paragraph arises out of or results from the hazardous properties of the dangerous substances, genetically modified organisms or micro-organisms or arises or results from waste.
8 "Measures of reinstatement" means any reasonable measures aiming to reinstate or restore damaged or destroyed components of the environment, or to introduce, where reasonable, the equivalent of these components into the environment. Internal law may indicate who will be entitled to take such measures.
9 "Preventive measures" means any reasonable measures taken by any person, after an incident has occurred to prevent or minimise loss or damage as referred to in paragraph 7, sub-paragraphs a to c of this Article.
10 "Environment" includes:
- natural resources both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors;
- property which forms part of the cultural heritage; and
- the characteristic aspects of the landscape.
11 "Incident" means any sudden occurrence or continuous occurrence or any series of occurrences having the same origin, which causes damage or creates a grave and imminent threat of causing damage.
Article 3
Geographical scope
Without prejudice to the provisions of Chapter III, this Convention shall apply:
a when the incident occurs in the territory of a Party, as determined in accordance with Article 34, regardless of where the damage is suffered;
b when the incident occurs outside the territory referred to in sub-paragraph a above and the conflict of laws rules lead to the application of the law in force for the territory referred to in sub-paragraph a above.
Article 4
Exceptions
1 This Convention shall not apply to damage arising from carriage; carriage includes the period from the beginning of the process of loading until the end of the process of unloading. However, the Convention shall apply to carriage by pipeline, as well as to carriage performed entirely in an installation or on a site unaccessible to the public where it is accessory to other activities and is an integral part thereof.
2 This Convention shall not apply to damage caused by a nuclear substance:
a arising from a nuclear incident the liability of which is regulated either by the Paris Convention of 29 July 1960 on third party liability in the field of nuclear energy, and its Additional Protocol of 28 January 1964, or the Vienna Convention of 21 May 1963 on civil liability for nuclear damage; or
b if liability for such damage is regulated by a specific internal law, provided that such law is as favourable, with regard to compensation for damage, as any of the instruments referred to under sub-paragraph a above.
3 This Convention shall not apply to the extent that it is incompatible with the rules of the applicable law relating to workmen's compensation or social security schemes.
Chapter II. LIABILITY
Article 5
Transitional provisions
1 The provisions of this chapter shall apply to incidents occurring after the entry into force of the Convention in respect of a Party. When the incident consists of a continuous occurrence or a series of occurrences having the same origin and part of these occurrences took place before the entry into force of this Convention, this chapter shall only apply to damage caused by occurrences or part of a continuous occurrence taking place after the entry into force.
2 In respect of damage caused by waste deposited at a site for the permanent deposit of waste the provisions of this chapter shall apply to damage which becomes known after the entry into force of the Convention in respect of the Party on the territory of which the site is situated. However this chapter shall not apply if:
a the site was closed in accordance with the provisions of internal law before the entry into force of the Convention;
b the operator proves, in the case where the operation of the site continues after that entry into force of the Convention, that the damage was caused solely by waste deposited there before that entry into force.
Article 6
Liability in respect of substances, organisms
and certain waste installations or sites
1 The operator in respect of a dangerous activity mentioned under Article 2, paragraph 1, sub-paragraphs a to c shall be liable for the damage caused by the activity as a result of incidents at the time or during the period when he was exercising the control of that activity.
2 If an incident consists of a continuous occurrence, all operators successively exercising the control of the dangerous activity during that occurrence shall be jointly and severally liable. However, the operator who proves that the occurrence during the period when he was exercising the control of the dangerous activity caused only a part of the damage shall be liable for that part of the damage only.
3 If an incident consists of a series of occurrences having the same origin, the operators at the time of any such occurrence shall be jointly and severally liable. However, the operator who proves that the occurrence at the time when he was exercising the control of the dangerous activity caused only a part of the damage shall be liable for that part of the damage only.
4 If the damage resulting from a dangerous activity becomes known after all such dangerous activity in the installation or on the site has ceased, the last operator of this activity shall be liable for that damage unless he or the person who suffered damage proves that all or part of the damage resulted from an incident which occurred at a time before he became the operator. If it is so proved, the provisions of paragraphs 1 to 3 of this Article shall apply.
5 Nothing in this Convention shall prejudice any right of recourse of the operator against any third party.
Article 7
Liability in respect of sites for
the permanent deposit of waste
1 The operator of a site for the permanent deposit of waste at the time when damage caused by waste deposited at that site becomes known, shall be liable for this damage. Should the damage caused by waste deposited before the closure of such a site become known after that closure, the last operator shall be liable.
2 Liability under this Article shall apply to the exclusion of any liability of the operator under Article 6, irrespective of the nature of the waste.
3 Liability under this Article shall apply to the exclusion of any liability of the operator under Article 6 if the same operator conducts another dangerous activity on the site for the permanent deposit of waste.
However, if this operator or the person who has suffered damage proves that only a part of the damage was caused by the activity concerning the permanent deposit of waste, this Article shall only apply to that part of the damage.
4 Nothing in this Convention shall prejudice any right of recourse of the operator against any third party.
Article 8
Exemptions
The operator shall not be liable under this Convention for damage which he proves:
a was caused by an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character;
b was caused by an act done with the intent to cause damage by a third party, despite safety measures appropriate to the type of dangerous activity in question;
c resulted necessarily from compliance with a specific order or compulsory measure of a public authority;
d was caused by pollution at tolerable levels under local relevant circumstances; or
e was caused by a dangerous activity taken lawfully in the interests of the person who suffered the damage, whereby it was reasonable towards this person to expose him to the risks of the dangerous activity.
Article 9
Fault of the person who suffered the damage
If the person who suffered the damage or a person for whom he is responsible under internal law, has, by his own fault, contributed to the damage, the compensation may be reduced or disallowed having regard to all the circumstances.
Article 10
Causality
When considering