Property law: Land contamination: Polish and EU legislation

The directive is not meant to be the sole EU legal measure aimed at promoting soil protection (soil being described by the European Commission as the top layer of the earth's crust, formed by mineral particles, organic matter, water, air and living organisms). Now, however, in line with the September 2006 Thematic Strategy for Soil Protection, a directive of the European Parliament and the Council establishing a framework for soil protection and amending Directive 2004/35/EC has been proposed. This directive is intended to be a Framework Directive setting the extent to which each member state may determine its own internal soil protection rules.

Status report

An interesting proposal contained in the Framework Directive requires a soil-status report to be issued whenever a site (such as airports, ports, former military bases, petrol stations, dry cleaners, mining facilities, waste landfill facilities, waste-water treatment installations, pipelines for the transport of dangerous substances, etc.) is to be sold on which pollutive activity may have occurred or, according to official records, has actually occurred. The report will have to be produced by either the owner or the buyer, issued by an authorized body or by a person appointed by the state and include many details. It has to be emphasized that such "transaction reports," although not expressly required by Polish law, are in fact prepared in the course of many transactions as liability for land contamination under Polish law is very strict and a diligent buyer will always want to be protected from unknown risk.

Increasing activity

Directive 2004/35/EC is the first European secondary legislation act to address the issue of land contamination expressly. The Framework Directive is designed to step up member-state activity in the field of soil control, and, in particular, to encourage the maintaining of appropriate registers of contaminated land. Member-state activity in the areas of controlling private entities and compelling them to remove contamination should thus increase.

Polluter pays

Polish law already imposes very strict liability for land contamination, although the activity of the state in this field varies according to region and depends on many factors. The implementation of the European "polluter pays" principle in Polish law states that the entities responsible for decontamination are: the holder of the land in the first instance; but if the polluter is known the polluter himself or -- depending on the circumstances - the owner and polluter jointly and severally; and finally the local authorities (in specific circumstances).

Polish law can therefore be deemed to implement the European "polluter pays" principle but under particular circumstances, the holder of the land can be held liable. The holder of the land will usually be the first entity approached by the authorities and he will be held liable if he fails to prove that the contamination has been caused by a third party or that it occurred before 1980 (other detailed circumstances were described recently). In other words, a buyer must always seek contractual remedies from the seller of land to protect against possible contamination or, if the seller refuses to provide them, perform a diligent environmental examination of the soil.

Jakub Kutzmann is an associate with Linklaters law firm

E-mail: jakub.kutzmann@linklaters.com