Causation in the Polluter Pays Principle

The aim of this paper is to show the limits of the discretionary power that EU primary law provides for public authorities in determining the polluter in order to allocate the costs of pollution under the polluter pays principle. According to the ECJ, the polluter is a person who by his activity contributes to the risk that pollution occurs. Hence, public authorities may not classify someone as a polluter if he did not cause the pollution. Causation in the polluter pays principle can be compared to causation in civil liability. When the legislator predetermines the polluter in the legislation, he uses ex ante causal probabilities, but when public administrations or national courts identify the polluter in a concrete case they should use the condition sine qua non theory. This is confirmed by secondary legislation and case law, especially in the fields of waste management, environmental liability.

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