Legislation

Main environmental regulations

What are the main statutes and regulations relating to the environment?

The main piece of legislation relating to the environment is article 66 of the Portuguese Constitution, which sets out the right to a healthy and ecologically sustainable environment, as well as the duty to preserve it.

The Portuguese state has enacted several statutes concerning general environmental matters, notably the following:

  • the Environmental Policy Basis Law: Law No. 19/2014 of 14 April;
  • the Water Law: Law No. 58/2005 of 29 December (as amended by Decree-Law No. 245/2009 of 22 September, Decree-Law No. 60/2012 of 14 March, Decree-Law No. 130/2012 of 22 June, Law No. 42/2016 of 28 December, and Law No. 44/2017 of 19 June);
  • the Law of Integrated Prevention and Control of Pollution and Emissions: Decree-Law No. 127/2013 of August 30;
  • the Environmental Liability Law: Decree-Law No. 147/2008 of 29 July (as amended by Decree-Law No. 245/2009 of 22 September, Decree-Law No. 29 A/2011 of 1 March, Decree-Law No. 60/2012 of 14 March, and Decree-Law No. 13/2016 of 9 March);
  • the Legal Framework of Environmental Administrative Offences: Law No. 50/2006 of 29 August (as amended by Law No. 89/2009 of 31 August, Law No. 144/2015 of 28 August, and Decree-Law No. 42-A/2016 of 12 August);
  • the Environmental Information Law: Law No. 26/2016 of 22 August;
  • the Legal Regime of Environmental Impact Assessment: Decree-Law No. 151-B/2013 of 31 October (as amended by Decree-Law No. 47/2014 of 24 March, Decree-Law No. 179/2015 of 27 August, Law No. 37/2017 of 2 June, Decree-Law No. 152-B/2017 of 11 December and Law No. 71/2018 of 31 December);
  • the Legal Regime of Single Environmental Licensing: Decree-Law No. 75/2015 of 11 May;
  • the Legal Regime of Hazardous Products and Substances: Decree-Law No. 150/2015 of 5 August (as amended by Decree-Law No. 71/2018 of 31 December);
  • the Legal Regime of the Preservation of Natural Landscapes and Wild Flora and Fauna: Decree-Law No. 140/99 of 24 April (as amended by Decree-Law No. 49/2005 of 24 February and Decree-Law No. 156-A/2013 of 8 November);
  • the Legal Regime of Nature and Biodiversity Preservation: Decree-Law No. 142/2008 of 24 July (as amended by Decree-Law No. 242/2015 of 15 October and Decree-Law No. 42-A/2016 of 12 August);
  • the Legal Regime of the National Ecological Reserve: Decree-Law No. 166/2008 of 22 August (as amended by Decree-Law No. 239/2012 of 11 February, Decree-Law No. 96/2013 of 19 July and Decree-Law 80/2015 of 14 May);
  • the Legal Regime of the National Agricultural Reserve: Decree-Law No. 73/2009 of 31 March (as amended by Decree-Law No. 199/2015 of 16 September); and
  • Decree-Law No. 42 A/2016 of 12 August, which created the Portuguese Environmental Fund.

 

Water resources legal framework
  • The Law of Water Resources: Decree-Law No. 236/98 of 1 August (as amended by Decree-Law No. 52/99 of 20 February, Decree-Law No. 53/99 of 20 February, Decree-Law No. 54/99 of 20 February, Decree-Law No. 56/99 of 26 February, Decree-Law No. 431/99 of 22 October, Decree-Law No. 243/2001 of 5 September, Decree-Law No. 135/2009 of 3 June, Decree-Law No. 103/2010 of 24 September, and Decree-Law No. 83/2011 of 20 June);
  • the Human Consumption Water Quality Law: Decree-Law No. 306/2007 of 27 August (as amended by Decree-Law No. 92/2010 of 26 July and Decree-Law No. 152/2017 of 7 December); 
  • the Law of Water Resources Use: Decree-Law No. 226-A/2007 of 31 May (as amended by Decree-Law No. 391-A/2007 of 21 December, Decree-Law No. 93/2008 of 4 June, Decree-Law No. 107/2009 of 15 May, Decree-Law No. 137/2009 of 8 June, Decree-Law No. 245/2009 of 22 September, Decree-Law No. 82/2010 of 2 July, Decree-Law No. 44/2012 of 29 August, Law No. 12/2018 of 2 March and Decree-Law No. 97/2018);  and
  • the Law of Urban Wastewater Treatment: Decree-Law No. 152/97 of 19 June (as amended by Decree-Law No. 236/98 of 1 August, Decree-Law No. 348/98 of 9 November, Decree-Law No. 261/99 of 7 July, Decree-Law No. 172/2001 of 26 May, Decree-Law No. 149/2004 of 22 June, Decree-Law No. 198/2008 of 8 October, Decree-Law No. 73/2011 of 17 June, and Decree-Law No. 133/2015 of 13 July). 

 

Waste management legal framework
  • The Legal Framework of Waste Management: Decree-Law No. 178/2006 of 5 September (as amended by Decree-Law No. 173/2008 of 26 August, Law No. 64-A/2008 of 31 December, Decree-Law No. 183/2009 of 10 August, Decree-Law No. 73/2011 of 17 June, Decree-Law No. 127/2013 of August 30, Decree-Law 103/2015 of 15 June, Law 82-D/2014 of 31 December, Law 7-A/2016 of 30 March, Decree-Law 75/2015 of 11 May, Decree-Law 71/2016 of 4 November, and Decree-Law No. 152-D/2017 of 11 December);
  • the Legal Framework of Specific Waste Stream Systems: Decree-Law No. 152-D/2017 of 11 December (as amended by Law No. 69/2018 of 26 December and Law No. 41/2019 of 21 June);
  • the European List of Waste: Commission Decision 2000/532/EC of 3 May (as amended by Commission Decision 2014/955/EU of 18 December); and
  • the Law of Organised Waste Market: Decree-Law No. 210/2009 of 3 September (as amended by Decree-Law No. 73/2011 of 17 June).

 

Air quality management policies on air emissions legal framework and guidelines
  • The Law of Evaluation and Management of Air Quality: Decree-Law No. 102/2010 of 23 September (as amended by Decree-Law No. 43/2015 of 27 March, and Decree-Law No. 47/2017 of 10 May);
  • the Law of Air Pollution Prevention: Decree-Law No. 39/2018 of 11 June;
  • the Law of Greenhouse Licences’ Trade Market: Decree-Law No. 12/2020, of 6 April;
  • the Law of Substances that Deplete the Ozone Layer: Decree-Law No. 152/2005 of 31 August (as amended by Decree-Law No. 35/2008 of 27 February, Decree-Law No. 85/2014 of May 27, and Decree-Law No. 145/2017 of 30 November); and
  • the Regulation on substances that deplete the ozone layer: Regulation (EC) No. 1005/2009 of the European Parliament and of the Council of 16 September (as amended by Regulation (EU) No. 2017/605 of 29 March) and Regulation (EU) No. 389/2013 of the European Commission of 2 May.

 

Regulations on noise and evaluation and control of environmental noise
  • The General Regulation of Noise: Decree-Law No. 9/2007 of 17 January (as amended by Decree-Law No. 278/2007 of 1 August); and
  • the Law of Noise Assessment and Management: Decree-Law No. 146/2006 of 31 July.
Integrated pollution prevention and control

Is there a system of integrated control of pollution?

Yes. The Law of Integrated Prevention and Control of Pollution and Emissions sets forth an overall approach to emissions to air, water, soil, waste production and noise, and is applicable to several types of industrial facilities in potential polluting sectors (eg, energy, processing of metals, chemical, waste management).

Under this statute, the start-up of the use of these facilities and any substantial changes made to it are subject to an environmental licence. This licence is part of the facility licence and incorporates the most relevant environmental authorisations or licences and administrative stages in a single integrated licence.

The licence contains measures for the facility to comply with to avoid or reduce pollution, such as limits to emissions and communication obligations to the regulating authority.

Soil pollution

What are the main characteristics of the rules applicable to soil pollution?

Under article 10 of the Environmental Policy Basis Law, the management of soil requires the implementation of measures that limit or reduce the impact of human activity on soil, that prevent contamination and degradation and that promote its restoration, as well as stopping desertification.

This piece of legislation also sets out a general principle under which anyone who causes environmental damage must restore the status quo ante, and this principle is found in several regulations regarding the environment (in particular, the Legal Framework of Environmental Administrative Offences, the Environmental Liability Law, and the Legal Framework of Waste Management).

Hence, operators that damage soil must take up measures to repair them, namely to prevent, eliminate, control, contain or reduce soil contamination. Under the Legal Framework of Waste Management, possessors and non-possessor legal owners of polluted soil are responsible at a secondary level.

Soil decontamination activities are subject to licensing under the Legal Framework of Waste Management.

Regulation of waste

What types of waste are regulated and how?

According to the Legal Framework of Waste Management, ‘waste’ is defined as any substance or object that its owner gets rid of or has the intention or obligation of doing so. All substances and objects listed in the European List of Waste implemented by the European Community are also considered ‘waste’.

In general, the waste producer is responsible for managing it. There are, however, some exceptions:

  • municipal administrative entities are responsible for the management of urban waste below 1,100 litres per day per producer;
  • the holder of the waste is responsible for its management whenever it is not possible to determine the producer’s identity; and
  • when waste is of foreign origin, the management obligation lies with the entity responsible for its introduction in Portugal, except when specifically set forth in the legislation on transfer of waste.

 

The responsibility of the aforementioned entities to manage the waste ceases when the waste is transferred to a licensed waste treatment operator or to a licensed manager of specific waste stream systems.

Waste treatment activities (which includes the activities of recovery and disposal of waste) are subject to a licensing procedure and other waste management activities, such as storage, sorting and storage and recovery in the place of production, are subject to a simplified licensing procedure.

In general, the collection and transport of waste must be registered with the integrated system for electronic waste registry (SIRER) of the relevant waste management authority in Portugal. Furthermore, registration with SIRER is mandatory in the following situations:

  • establishments with more than 10 employees that produce non-urban waste;
  • production of hazardous waste;
  • professional waste treatment activities;
  • entities that manage systems of urban waste;
  • the entities that manage individual or integrated systems of specific waste streams;
  • waste market participants (eg, brokers, dealers); and
  • producers of products that require registry under the terms of the legislation on specific waste streams.

 

Certain types of waste are subject to specific rules, notably to the Legal Framework of Specific Waste Stream Systems. This is the case, among others, for waste packages, used tyres, construction and demolition waste, used oil, in feed, batteries, accumulators and end-of-life vehicles. In this case, one of the following management models may apply:

  • a technical-economic model based on the principle of extended producer responsibility through the implementation of individual systems or of integrated management systems; or
  • a model under which the management responsibility lies in the waste producer or holder.

 

The properties of waste that render it hazardous are set out in Commission Regulation (EU) No. 1357/2014 of 18 December and the list of hazardous waste is listed as such in the European Waste List. The production, collection, transport, storage and treatment of hazardous waste is subject to special conditions.

Regulation of air emissions

What are the main features of the rules governing air emissions?

Without prejudice to the Law of Integrated Prevention and Control of Pollution and Emissions applying to the facilities covered therein, the Law of Air Pollution Prevention applies to sources of significant air pollution, notably facilities associated with industrial activities, combustion plants with a nominal thermal power equal to or above 1MW and below 50MW, facilities that burn fuel for the generation of energy within oil and gas refineries, and furnaces with thermal power equal to or above 1MW and below 50MW.

Under the Law of Air Pollution Prevention, these facilities must hold an Air Emissions Title and the operator of these facilities must, among others, ensure compliance with the emissions limit value, ensure the monitoring of air emissions and communicate the respective results to the competent authorities, comply with the applicable requisites for the discharge of air pollutants, and notify the competent regional development coordination commission of poor functioning or breakdown of the gaseous effluent treatment system.

In addition, the Law of Evaluation and Management of Air Quality sets out measures intended for determining milestones regarding the quality of ambient air, evaluating the quality of ambient air in Portugal, obtaining information on the quality of ambient air and disclosing it to the public, preserving and improving the ambient air quality and promoting cooperation between EU member states to reduce atmospheric pollution.

Protection of fresh water and seawater

How are fresh water and seawater, and their associated land, protected?

The Water Law establishes the basis for the sustainable management of water resources, taking into account the fragile aquatic ecosystems and claims a greater integration of the qualitative and quantitative aspects of both surface water and groundwater. The main goal of this statute is to eliminate hazardous substances and contribute to sustainable water use by executing specific measures to ensure gradual protection of the water and its associated land.

More specifically, this statute and the Law of Water Resources Use stipulate that activities that require a significant use of water resources or may have a relevant impact on water resources are subject to specific authorisations, licences or concession agreements.

In addition, the Law of Ownership of Water Resources regulates the concept of ‘water domain’. This law applies to water, stream beds, waterfront zones, bordering areas, protected areas and maximum infiltration areas, and constitutes the legal background for the public water domain, providing a classification of the water domain for seas, rivers, lakes and other water resources. Moreover, this statute rules on the recognition of private property over parts of public stream beds and waterfront zones, and vice versa.

Protection of natural spaces and landscapes

What are the main features of the rules protecting natural spaces and landscapes?

The Legal Regime of Nature and Biodiversity Preservation has implemented the Nature Preservation Fundamental Network, which consists of the following areas:

  • areas encompassed by the National System of Protected Areas (NSCA);
  • National Ecological Reserve areas;
  • National Agricultural Reserve areas; and
  • public water domain.

 

Under the above-mentioned legal framework, the NSCA includes the National Network of Protected Areas (NNPA), areas integrated in the Natura 2000 Network and other areas protected under international agreements. In particular, the NNPA labels areas as national parks, natural parks, natural reserves, natural monuments, or protected landscapes, and awards them specific protection measures with the aim of maintaining biodiversity, ecosystem services and geological heritage, as well as to enhance landscapes.

Although the Legal Regime of Nature and Biodiversity Preservation has set forth the rules applicable to the protected areas, it does not preclude the application of the specific legislation relevant on this matter as, for example, the Legal Regime of the National Ecological Reserve and the Legal Regime of the National Agricultural Reserve.

Protection of flora and fauna species

What are the main features of the rules protecting flora and fauna species?

The Legal Regime of the Preservation of Natural Landscapes and Wild Flora and Fauna is the statute that implements the Birds Directive and the Habitats Directive in order to ensure the protection of wild species of flora and fauna and the preservation of natural habitats. The main purpose of this legislation is the creation and conservation of a network of sites commonly known as the Natura 2000 Network.

The legal regime sets out procedural and substantive protection rules, applicable plans and projects that are likely to have a significant effect on a Natura 2000 Network site. Although it is applicable to several types of fauna and flora species, it provides for specific rules regarding priority species, which have a most stringent scheme of protection.

In particular, this piece of legislation establishes Special Protection Areas and Special Areas of Conservation, which are subject to specific regulation in order to protect or restore the level of conservation of populations of specific species of birds and natural habitats or populations of species, respectively.

As a general rule, destroying or disturbing protected wild species of flora and fauna and possession or trade of such species is prohibited and may be subject to administrative penalties and to criminal liability under the Portuguese Criminal Code.

Noise, odours and vibrations

What are the main features of the rules governing noise, odours and vibrations?

The General Regulation of Noise and the Law of Noise Assessment and Management are the two key statutes concerning noise emissions, although municipal regulations also play a major role on this matter, especially in relation to noise zoning.

The limits imposed by law depend on factors such as the location or the time of day at which the noise is produced. Nonetheless, if duly justified, it is possible to exceed such limits to a certain extent by obtaining a special municipal noise allowance licence. As a general rule, the maximum noise limits fluctuate between 55dB(A) and 65dB(A) and, in sensitive areas (eg, near houses, hospitals and schools) such limits are reduced to 45dB(A) and 55dB(A).

The police, the municipal authorities and the General Inspectorate on Agriculture, Sea, Environment and Planning are some of the entities that enforce compliance with these regulations.

Vibrations may also be deemed included in the concept of ‘noise’ for purposes of the legal frameworks.

With regard to odours, there are no specific applicable rules, although it is a matter often taken into account by regulatory and licensing authorities, notably when assessing the environmental impact of certain projects.

Liability for damage to the environment

Is there a general regime on liability for environmental damage?

At a general level, the Environmental Policy Basis Law approved by Law No. 19/2014 of 14 April sets out:

  • the principle of liability of anyone who threatens or damages the environment, whether directly or indirectly, acting intentionally or negligently; and
  • the principle of restoration, under which whomever causes environmental damage must restore the affected environment to its prior condition.

 

Although the definition of ‘environmental damage’ is absent from the Environmental Policy Basis Law, the Environmental Liability Law defines ‘damage’ as an adverse measurable change of a natural resource or a measurable deterioration of a natural resource service which may occur directly or indirectly.

Portuguese law establishes three types of environmental liability: criminal, administrative and civil.

Criminal liability, which may result in prison sentences or fines, is set out in articles 278, 279, 279 A and 280 of the Portuguese Criminal Code, which criminalise damage to the environment, pollution and undertaking activities dangerous to the environment.

The Environmental Liability Law is generally applicable to threats or damage to the environment made by economic activities and regulates both administrative and civil liability for environmental damage. Administrative liability constitutes the responsible economic operator in the obligation to adopt and pay for measures to prevent and repair the damage caused or threatened.

Civil liability stems from offences to third-party rights or interests through damage of environmental components. Despite operating independently from administrative liability, civil liability cannot be imposed if the agent has already repaired the damage under the administrative liability framework.

The competent authority regarding compliance with the rules provided by the Environmental Liability Law is the Portuguese Environment Agency.

Environmental taxes

Is there any type of environmental tax?

There are several environmental taxes currently in force in Portugal. In fact, the Environmental Policy Basis Law stipulates that environmental taxation may be used as an instrument to environmental policies as a means to remove burdens to good environmental practices and encumber the most polluting activities.

Environmental taxation generally applies to activities regarding water, waste, or emissions.

For instance, the Law of Water Resources Use establishes a water resources tax over licensed activities that negatively impact or may potentially impact the water resources. The Legal Framework of Waste Management provides for an economic and financial system according to which different taxes may be imposed such as, among others, a tax imposed during the licensing procedures, a waste management tax and a registration tax. The Law of Air Pollution Prevention sets out a tax for the issuance of an Air Emissions Title.

Environmental taxes such as these lawfully accumulate with general taxes on real estate and corporate return and there is no track-record of double taxation issues being raised on such regard.

Hazardous activities and substances

Regulation of hazardous activities

Are there specific rules governing hazardous activities?

Pursuant to the Law of Integrated Prevention and Control of Pollution and Emissions, prior to the start of operations, hazardous activities require the issuing of an environmental licence, to be granted according to the applicable licensing procedures. Likewise, prior to the start of operations, the facility must be inspected in order to verify whether it has been implemented according to its licence.

In addition, some activities are subject to specific regulations, notably:

  • the management of hazardous waste, regulated by the Legal Framework of Waste Management, by Decree-Law No. 3/2004 of 3 January, and by Ministerial Order 172/2009 of 17 February (Statute of Integrated Centres of Recovery, Assessment and Disposal of Hazardous Waste); and
  • the land transport of hazardous products or substances, regulated by national statutes (namely Decree-Law No. 41-A/2010 of 29 April) and by European or international regulations.
Regulation of hazardous products and substances

What are the main features of the rules governing hazardous products and substances?

There are several provisions regarding hazardous products and substances, depending on the issues to be addressed.

Pursuant to the Legal Framework of Hazardous Products and Substances, the authorisation for the installation of activities involving hazardous substances is subject to several preventive conditions (such as the preparation of preventive policy plans, security reports or emergency plans).

Regarding the classification, packaging and labelling of hazardous substances and preparations, Decree-Law No. 98/2010 of 11 August is the main statute on hazardous substances, and Decree-Law No. 82/2003 of 23 April, as amended by Decree-Law No. 155/2013 of 5 November, provides for the rules applicable to hazardous preparations. This legislation sets forth a list of substances that cannot be put on the market and requirements that must be complied with in order that the trading of certain hazardous substances can be allowed. Furthermore, there is an obligation to notify the Public Administration of new compounds containing hazardous substances and to label and pack compounds containing hazardous substances.

The transport by land of hazardous products or substances is also subject to several requirements determined either by national statutes or by EU or international regulations. In broad terms, the transportation of such goods may be carried on by authorised or licensed entities using authorised and adequate vehicles; notifications shall be made to the relevant crossed countries, and packages and vehicles shall be duly marked and labelled.

Finally, Regulation (EC) No. 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals sets out specific duties and obligations (eg, registration of substances with the European Chemicals Agency) on manufacturers, importers and downstream users of substances, mixtures or preparations.

Industrial accidents

What are the regulatory requirements regarding the prevention of industrial accidents?

The main preventive measures concerning industrial accidents are set out in the Legal Regime of Hazardous Products and Substances.

According to this statute, security regulations for the different types of industries must impose compulsory obligations, like the implementation of a serious accident prevention policy or an internal emergency plan. Furthermore, the competent authorities may suspend or close any activity when a material risk for human health or for the environment is detected.

On the other hand, the Legal Regime of Hazardous Products and Substances imposes on public authorities and certain industries the obligation to carry out specific actions to avoid accidents involving hazardous substances (eg, drawing a prevention plan or conducting accident drills). Breach of its provisions may determine the application of administrative penalties, which can range from fines to the seizure of goods and assets.

Environmental aspects in transactions and public procurement

Environmental aspects in M&A transactions

What are the main environmental aspects to consider in M&A transactions?

The main environmental aspects to consider in M&A transactions are the following:

  • compliance with the relevant environmental obligations, of which the most relevant are usually related to emission limits and to waste management conditions;
  • the availability of the relevant environmental permits, the most important of which are the activity and operation licences, water extraction and wastewater discharge authorisations, waste production and management authorisations and the integrated environmental authorisation;
  • the existence of administrative or judicial proceedings (current or envisaged) in connection with environmental issues;
  • the existence of soil pollution and pollution of the associated underground water; and
  • the existence of historical environmental damage and liability.

 

In addition, it is important to take into account whether the transaction is implemented by means of an asset deal or share deal. The acquisition of shares entails that all environmental liabilities are assumed by the buyer. On the contrary, asset purchases may reduce the liabilities to be assumed by the buyer but require transferring or obtaining the permits to carry out the activity.

Alternatively, in the context of M&A transactions there are a number of legal aspects that may need to be considered, in particular relating to:

  • energy consumption;
  • water domain;
  • licence to operate underground storage tanks;
  • public liability insurance or environmental incidents insurance coverage;
  • asbestos, polychlorinated biphenyls;
  • chemical storage and handling; and
  • change of control provisions requiring prior notice of authorisation from regulatory bodies.
Environmental aspects in other transactions

What are the main environmental aspects to consider in other transactions?

In general terms, the environmental aspects to consider in M&A are also applicable to a wide variety of transactions.

In real estate transactions, soil and water pollution are the most relevant issues. Alternatively, compliance with environmental obligations and the availability of the relevant permits to carry out the activity are the most relevant aspects that must be observed in transactions regarding financing or capital markets. Exposure to prospective damage compensation under the Environmental Liability Law and to potential offences under the Legal Framework of Administrative Offences should also be assessed.

In corporate restructuring and bankruptcy proceedings it must be taken into account that if the activity is assigned to another entity, the relevant permits and concessions must also be transferred and that the closure or dismantling of certain types of industries may be subject to specific environmental permits.

Environmental aspects in public procurement

Is environmental protection taken into consideration by public procurement regulations?

The legal framework applicable to public procurement procedures is set out in the Public Contracts Code enacted by Decree-Law No. 18/2008 of 29 January (as amended by Decree-Law No. 33/2018 of 15 May). The Public Contracts Code establishes a clear differentiation between pre-contractual procurement procedures and the material execution of public contracts, providing for different rules for each of these instances.

Although the sections of the code dedicated to the material execution of public contracts do not establish specific rules tackling environmental aspects, the sections on pre-contractual procedures do have rules on the public authorities’ duties to take into account environmental issues when preparing and drafting the specifications of public contracts; and the high-level scrutiny of the bidders’ overall compliance with environmental aspects.

In works contracts, whenever the intended construction falls under the Legal Regime of Environmental Impact Assessment, either owing to its location or the specific characteristics of the construction, the execution project to be included in the pre-contractual procedures’ specifications shall comprehend an environmental impact statement (when applicable) and the bidders’ offers must evidence the compliance with the terms and conditions of such statement.

With regard to the scrutiny of the bidders’ overall compliance with environmental aspects, it should be noted that not only must the bidders provide evidence that they hold all necessary licences (including in the environmental field) necessary to comply with the terms of the contract to be awarded, they must also submit several statements and public documents attesting the absence of any administrative or criminal convictions related to business activities (which include convictions by breach of environmental laws). Members of the managing bodies of bidders must also submit such statements evidencing absence of convictions.

Finally, environmental requirements are increasingly foreseen in public procurement procedures pursuant to EU policies. These requirements are part of ‘Green Public Procurement’, under which Europe’s public authorities use their purchasing power to choose environmentally friendly goods, services and works.

Environmental assessment

Activities subject to environmental assessment

Which types of activities are subject to environmental assessment?

The general rule under the Legal Regime of Environmental Impact Assessment is that public and private projects that could have a significant effect on the environment are subject to an environmental impact assessment (EIA), which in turn gives rise to an environmental impact statement (EIS). Positive EISs do not constitute licences; rather, they are a priori binding conditions to obtain a certain authorisation or decision.

EIAs are particularly required for projects within the activities of agriculture, mining, oil, power generation, steel industry, chemical industry, infrastructures, hydraulic works and waste management facilities. In addition, depending on the characteristics of a project, the responsible EIA authority or the responsible government bodies may decide that such project should be subject to an EIA.

In exceptional circumstances it is possible to request an exemption from an EIA (eg, if the project considered to be of potential national interest under Decree-Law No. 154/2013 of 5 November).

Environmental assessment process

What are the main steps of the environmental assessment process?

The main steps of an EIA procedure are the following:

  • preliminary and optional steps:
    • the project sponsor may propose a definition of the EIA’s scope containing the characteristics, location and a description of the project;
    • the EIA authority shall forward it to certain institutions to obtain their opinion; and
    • a public consultation may be required by the project sponsor and decided by the evaluation committee; and
  • without prejudice to the steps described above:
    • the EIA procedure is initiated by the project sponsor filing the EIS with the relevant licensing or authorisation body, which will in turn submit it to the EIA authority;
    • the EIA authority submits the EIS to the competent authorities in order for them to appoint members of the evaluation committee;
    • on the basis of the assessment of the evaluation committee, the EIA authority declares the conformity or non-conformity of the EIS (in the case of non-conformity, the procedure is concluded);
    • the EIA is submitted to public consultation, the result of which is sent by the EIA authority to the evaluation committee;
    • the evaluation committee shall prepare and send to the EIA authority a report with its final opinion;
    • the EIA authority shall provide the minister responsible for the area of environment with the final environmental impact proposal; and
    • the minister responsible for the area of environment will issue an environmental impact statement.

Regulatory authorities

Regulatory authorities

Which authorities are responsible for the environment and what is the scope of each regulator’s authority?

In Portugal, environmental responsibilities are shared between the Portuguese state (central administration) and municipalities (local administration). At state level, the main public entities with environmental responsibilities are the following:

  • the Ministry of the Environment, Planning and Energy;
  • the Regional Development and Coordination Committees;
  • the Water and Waste Services Regulatory Entity;
  • the Nature and Forests Preservation Institute;
  • the Portuguese Environment Agency; and
  • the Agriculture, Sea, Environment and Planning General Inspectorate.

 

Through these entities, the Portuguese state enacts basic environmental legislation and supervises, monitors and sanctions most activities concerned with the environment.

Municipalities also have powers on environmental protection that must be executed in accordance with the regulations issued by the state. The main environmental powers of the municipalities concern the activity of granting licences, urban waste regulation and definition of noise limits.

Investigation

What are the typical steps in an investigation?

In general, facilities subject to environmental regulation may be inspected and monitored by the competent regulating authority and the respective operators must provide it with the relevant information.

The investigation procedure following the breach of environmental regulations constituting administrative offences is subject to the rules established by the Legal Framework of Environmental Administrative Offences and, on a subsidiary level, to the Legal Framework of Administrative Offences set out in Decree-Law No. 433/82 of 27 October.

Whenever a public officer witnesses or becomes aware of an administrative offence (which may occur through a complaint submitted by an individual), an official report must be drawn up describing:

  • the facts;
  • the time and circumstances under which the offence was committed or detected;
  • the identification details of the offender and of witnesses; and
  • the name of the reporting public officer.

 

Upon receiving the report, which serves as evidence of the reported facts, the administrative authority may decide not to proceed to the investigation phase if the reported offence is minor, the offender’s record is clean and if the latter has not been given a warning by the administrative authority in the preceding three years.

However, if these conditions are not all met, the administrative authority must proceed to the investigation phase, where it has 180 days to gather and examine all evidence (this deadline may be extended for a further 120 days). For this purpose, the administrative authority must be granted access to the facilities or sites where inspected activities take place. It must be granted all the requested information, documentation and any other elements.

Following investigation, the administrative authority may issue a resolution:

  • imposing sanctions to the offender; or
  • filing the proceedings if no violation has been evidenced.

 

However, before this decision is issued, the offender is notified of the proceedings, together with all relevant elements for him or her to ascertain all relevant aspects of the expected decision. The offender has 15 business days to lodge a written response, submit any relevant documents or summon witnesses.

The decision under which sanctions are imposed may be appealed against judicially.

Administrative decisions

What is the procedure for making administrative decisions?

The procedure commences at the request of an individual or a public authority. Thereafter a preliminary investigation is carried out in which all relevant facts and allegations are collected and examined. Finally, the decision is issued by the competent authority.

As a general rule, the parties have the right to be heard before the decision is made (the project decision phase). Under this right, the private party may provide to the public authority all relevant evidence and summon witnesses. The decisions rendered can be appealed in court.

Sanctions and remedies

What are the sanctions and remedies that may be imposed by the regulator for violations?

The sanctions and remedies that may be imposed by the regulator for violations of mandatory environmental rules are usually fines, which may range from €200 to €5 million, depending on the seriousness of the offence and whether the offender is a legal person. Ancillary sanctions may also be imposed and these may include, inter alia, the following:

  • appropriation by the state of any objects of the producers or agents used in such activities;
  • exclusion of any rights to claim any subsidy or benefits from any public entities;
  • compulsory closure of any premises and facilities subject to previous authorisation or licensing; and
  • suspension of any applicable authorisations, licences or permits.

 

In addition to these sanctions, the offender may also be obliged to undertake any suitable measure to prevent and mitigate the environmental damage caused and to restore the status quo ante.

Appeal of regulators’ decisions

To what extent may decisions of the regulators be appealed, and to whom?

Any administrative decision taken as a result of an administrative procedure may be appealed for judicial review. Should there be an authority in a higher position in the hierarchy to the one that has issued the decision, an administrative appeal may also be filed.

Judicial proceedings

Judicial proceedings

Are environmental law proceedings in court civil, criminal or both?

Environmental law proceedings take place in administrative, civil and criminal courts depending, in each case, on the affected interests and the applicable regulations. Civil claims, notably those related to environmental liability for damage, usually proceed in civil courts. Proceedings related to environmental offences are resolved before criminal courts if the offence is regarded as a criminal offence. With regard to administrative offences, the claims regarding an appeal for judicial review of the decisions of the competent authorities or regulators may proceed in administrative courts or in civil courts, depending on the nature of the offence and respective applicable regime.

Powers of courts

What are the powers of courts in relation to infringements of environmental law?

Portuguese courts have full powers to confirm or quash any kind of administrative decisions regarding any kind of infringements and breaches of environmental law.

Furthermore, in the case of criminal offences, penalties such as fines or imprisonment may also be imposed by Portuguese courts. As a general rule, a court cannot aggravate the original decision from a public authority being appealed exclusively by the private party. However, a fine may be aggravated by the court if the offender’s financial situation has considerably improved. In addition, administrative decisions concerning environmental infringements may be aggravated by the courts.

Civil claims

Are civil claims allowed regarding infringements of environmental law?

Under the Environmental Liability Law, civil liability may arise from damage to individual rights or interests through damage to an environmental component. Both contractual and non-contractual civil claims regarding breaches and infringements of environmental law are allowed in Portuguese courts when a damage or nuisance is caused by such breach or infringement.

Defences and indemnities

What defences or indemnities are available?

Allocation of liability

Both individuals and legal entities may incur civil, criminal and administrative liability.

Criminal liability is fault-based, and arises when the conduct has been committed intentionally or, in some cases, negligently. The criminal liability of a legal person does not exclude nor does it depend on the criminal liability of an individual acting in a leadership position of such legal person. However, the criminal liability of legal persons can be excluded when the relevant agent has acted against express orders or instructions.

Under the Legal Framework of Environmental Administrative Offences, a fine may be reduced when circumstances arising before or after the date of the offence significantly diminish its illegality, the degree of fault of the agent or the necessity of the fine. For this purpose, the agent must have shown regret (namely by repairing the damage to the extent possible and complying with the breached provision or order); or, if two years have passed since the offence, the agent has shown good behaviour.

Administrative liability for environmental damage may be strict or fault-based. If there is more than one person involved, liability for the infringement is generally joint and several. When the environmental damage is caused by more than one agent, each agent is jointly liable, without prejudice to the right of recourse to be determined by each agent’s degree of liability or fault. If determining this degree is not possible, the liability is presumed equal.

Under the Environmental Liability Law, the operator does not have to bear the costs of prevention or reparation measures if it is established that the environmental damage or imminent threat:

  • has been caused by third parties and despite the adoption by the operator of adequate safety measures; or
  • results from compliance with an order or instruction of a public authority that has not been issued in the context of an emission or accident caused by the operator’s activity.

 

The operator is still obliged to adopt and execute such measures, but has a right of recourse over the third party or over the administrative authority, as applicable.

In addition, the operator does not have to bear the costs of prevention or reparation measures if it is established that:

  • there has been no intention or negligence on causing the damage; and
  • the damage was caused by an expressly allowed action that has complied with all the conditions of the relevant authorisation and with the legal provisions, or has been caused during an activity that was not considered to be susceptible to cause environmental damage at that time.

 

Civil liability can be either fault-based or strict. Should environmental damage arise from a legal person’s action, the management may be jointly and severally liable with the legal person. In addition, if the operator is a legal person controlled by another legal person, the latter may also be jointly liable where legal personality has been abused or where it constitutes a fraud against the law.

 

Limitation period

Under the Environmental Liability Law, liability for damage caused by emissions, incidents or happenings is limited to a period of 30 years from the date the damage was sustained.

According to the Legal Framework of Environmental Administrative Offences, the limitation period for administrative offences is five years for very serious offences and serious offences and three years for minor offences. The limitation period is counted from the date of the offence.

Pursuant to the Portuguese Criminal Code, the limitation period for basic environmental crimes may range from five to 10 years.

Directors’ or officers’ defences

Are there specific defences in the case of directors’ or officers’ liability?

Under the Portuguese Criminal Code, directors, officers and company representatives can be held personally responsible for any environmental wrongdoing or offence caused by the company (which may be held criminally responsible as well). The criminal liability of a legal company does not exclude nor does it depend on the criminal liability of an individual acting in a leadership position of such legal person, but the criminal liability of legal persons can be excluded when the relevant agent has acted against express orders or instructions.

Under the Legal Framework of Environmental Administrative Offences, directors, managers and shareholders are jointly responsible for the payment of fines. Where a fine has been imposed on a legal person, its directors, managers, and persons who perform managerial functions are secondarily responsible for such payment if:

  • they bear responsibility in the insufficiency of the legal person’s assets to pay; or
  • the offence was committed prior to them taking office but the final decision imposing a fine is notified during their office, and it is not paid due to their conduct. They may also be secondarily responsible for the payment of procedural costs.

 

According to the Environmental Liability Law, where a legal person is liable for any damage or an imminent threat of damage to the environment, joint and several liability is imposed on the managers, administrators or directors, who become personally liable together with the company itself. This rule is set out in the Water Law.

Furthermore, a legal person may be held liable in civil claims for any damage caused, including damage caused by a director or officer. On the other hand, the directors and officers of the company may also be held liable in relation to the company itself, the shareholders and the company creditors for any damage caused as a consequence of their negligent or guilty acts.

Appeal process

What is the appeal process from trials?

Under Portuguese law, there are two levels of appeal plus an additional appeal to the Constitutional Court. However, in order to walk through all the appeal levels several requirements must be met.

As a general rule, judgments issued by administrative, civil and criminal courts at first instance may be appealed against in second-instance courts. Judgments issued in second-instance courts may be appealed before the Supreme Court of Justice or the Administrative Supreme Court, depending on the matter at hand.

Notwithstanding this, certain matters may be decided at first or second instance without the possibility of lodging an appeal before the higher court. Alternatively, in a few cases and under certain conditions, rulings issued at first instance may be directly appealed before the Supreme Court of Justice or the Administrative Supreme Court.

In addition, if there is a violation of constitutional norms, the matter may be raised before any common court. The decision of such court on this constitutional issue may be appealed before the Constitutional Court.

International treaties and institutions

International treaties

Is your country a contracting state to any international environmental treaties, or similar agreements?

Portugal is a contracting party to many relevant international treaties regarding the environment, including:

  • the United Nations Framework Convention on Climate Change, New York, 1992;
  • the Convention on Wetlands, Ramsar, 1971;
  • the Protocol to the United Nations Framework Convention on Climate Change, Kyoto, 1997;
  • the Paris Agreement 2015;
  • the Convention on the Conservation of European Wildlife and Natural Habitats, Berne, 1979;
  • the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington, DC, 1973;
  • the Convention for the Protection of the Mediterranean Sea against Pollution, Barcelona, 1976;
  • the Stockholm Convention on Persistent Organic Pollutants, Stockholm, 2001;
  • the Convention on Long-range Transboundary Air Pollution, Geneva, 1979;
  • the Convention on the Transboundary Effects of Industrial Accidents, 1992;
  • the Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 1991;
  • the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Rotterdam, 1998; and
  • the Vienna Convention for the Protection of the Ozone Layer, Vienna, 1985.
International treaties and regulatory policy

To what extent is regulatory policy affected by these treaties?

International treaties are binding in Portugal as soon as they are published in the State Official Gazette. Therefore, regulatory policy is directly affected by these international treaties to the same extent as state regulations.

Update and trends

Key developments of the past year

Are there any emerging trends or hot topics in environment law in your jurisdiction?

There are no updates at this time. 

Coronavirus

What emergency legislation, relief programmes and other initiatives specific to your practice area has your state implemented to address the pandemic? Have any existing government programmes, laws or regulations been amended to address these concerns? What best practices are advisable for clients?

A state of emergency was in force in Portugal from 19 March 2020 to 2 May 2020, as declared by the President of the Republic through Decrees Nos. 14-A/2020 of 18 March, 17-A/2020 of 2 April 2020 and 20-A/2020 of 17 April 2020. Following this, the government approved several extraordinary measures in force during each successive period of the state of emergency, through Decrees Nos. 2-A/2020 of 20 March 2020, 2- B/2020 of 2 April 2020 and 2-C/2020 of 17 April 2020. The state of emergency ended on 2 May 2020, but not all the measures adopted to contain and prevent the spread of covid-19 were lifted.

Although no specific measures were adopted in relation to environmental matters, and no changes were enacted to environmental laws or regulations, under Law 1-A/2020, as amended by Law 4-A/2020, administrative deadlines for acts to be performed by individuals and companies were suspended. This suspension benefited administrative procedures as a whole, therefore encompassing environmental procedures, such as environmental impact and licensing procedures, administrative sanctioning procedures and, in general, any procedures where actions from the private parties were required to secure a right or comply with regulatory obligations.

Law 16/2020 amended Decree-Law 10-A/2020 to stipulate that:

  1. 20 working days after the entry into force of Law 16/2020 (ie, 3 July 2020) is the term for administrative deadlines that would have fallen during: the above-mentioned suspension regime; or the 20 working days after the entry into force of Law 16/2020;
  2. administrative deadlines that would have fallen more than 20 working days after the entry into force of Law 16/2020 (ie, after 3 July 2020) will expire as per their original term; and
  3. limitation and prescription periods that cease to be suspended as a result of the amendments introduced by Law 16/2020 are extended by the period of time for which they were suspended.

 

This means that, apparently, administrative deadlines that were due to expire after 3 July 2020, and that are not considered limitation and prescription periods, were never suspended and maintain their original terms. The provisions set out in points (1) and (2) above do not apply to administrative deadlines in administrative offence proceedings. Decree-Law 10-A/2020 suspended the deadlines by which the authorities tacitly grant authorisations and licences requested by individuals and companies. Furthermore, deadlines that may result in tacit grants of authorisations or licences within the scope of an environmental impact assessment were also suspended, even when the procedure was not initiated owing to a private undertaking’s request. However, Decree-Law 20/2020 revoked this suspension and, hence, the terms for tacit grants began to run again on 2 May 2020.

 

Law stated date

Correct on

Give the date on which the above content is accurate.

1 August 2020.