PORTUGAL Law and Practice Contributed by: Andreia Candeias Mousinho, Diogo Duarte Campos, João Marques Mendes and Raquel Freitas, PLMJ
4.5 Consequences of Breaching Permits/ Approvals In the case of breaching of an environmental approval/ permit, immediate action to contain or repair the con- sequences of said breach may be necessary, as well as communication of the occurrence to the competent entities. These entities may establish a deadline for all required corrections to be made and schedule a visit to the site to confirm that this has been done. Moreover, non-compliance with environmental per- mits may trigger environmental liability. There are two main types of liability for environmental damage or breaches of environmental law. Specifi- cally, there is punitive liability (administrative offence liability and criminal liability) and restorative liability (civil liability and environmental liability). 5.2 Liability for Historical Environmental Incidents or Damage The extent of liability for non-compliance with envi- ronmental standards can be analysed from two per- spectives: • the subjects to whom the liability might be attrib- uted; and • the period during which the liability subsists. The Liable Party Environmental law is structured to attribute liability to the person who committed the unlawful act and caused the environmental damage – that is, to the per- son who carries out, controls, registers or notifies an activity whenever that person exercises or may exer- cise decisive powers over the technical and economic functioning of that activity. 5. Environmental Liability 5.1 Key Types of Liability As such, the criterion for attributing liability is not that of the current (or purchasing) operator or landown- er, but rather the subject to whom the activity that harmed the environment can be attributed.
Liability Limitation Period Administrative offence liability
The limitation period for administrative offences is a maximum of five years from the commission of the offence. Nevertheless, this timeframe can be extend- ed to eight years if there is a suspension or interrup- tion in the proceedings. Environmental liability (for environmental damage) and civil liability Liability for environmental damage from events over 30 years ago is time-barred. For civil liability, compen- sation claims must be made within three years of the injured party becoming aware of their right, as long as this is within 30 years of the event. Moreover, environmental liability is not applicable to damage caused by any emissions, events or incidents prior to 1 August 2008 or to damage caused by any emissions, events or incidents that occurred after 1 August 2008 due to a specific activity performed or concluded before that date. Criminal liability The statute of limitations for crimes depends on the applicable penalty and the specific crime in question. In the worst-case scenario, criminal liability expires 15 years after the commission of the act. 5.3 Key Defences Types of Liability The violation of legal and/or regulatory provisions in environmental matters might constitute an administra- tive offence, entail the civil liability or environmental liability of the offender, or be considered an environ- mental crime. Administrative offence liability This type of liability is most commonly used to punish environmental violations. It corresponds to social and administrative censure for actions less severe and less socially reprehensible than criminal offences. Administrative offence proceedings can lead to the application of fines of between EUR2,000 and EUR5 million, depending (among other criteria) on the type of offence, its perceived seriousness and the infring- er’s degree of guilt. In the case of the presence or
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