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6. ASSESSMENT OF CONSULTATION ISSUES
i) 'Permit defence'
- Whether or not there is a permit defence is unlikely to have a significant bearing on how much damage is covered by the directive. This is because it is difficult to identify cases from the past where damage would qualify under ELD and has been caused within a permit. Where this has occurred it has generally been under permits that have since been updated.
- There may be wider effects from providing a permit defence. These would include the possibility that competent authorities would tighten permit conditions, that there would be more legal action over uncertainty as to whether operators had complied with the relevant conditions and that it would make the insurance sector more willing to offer products.
- A permit defence could not apply to all activities as only certain activities operate under relevant (Annex III) permits.
ii) 'State of the art' defence
- It is difficult to identify in advance circumstances where a 'state of the art' defence might apply. The point is that actions / products were thought to be safe but in retrospect are seen to have posed risks. In any event, such circumstances are likely to be exceptional.
- As for the permit defence this defence may make the insurance sector more willing to offer products.
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