PORTUGAL Law and Practice Contributed by: Andreia Candeias Mousinho, Diogo Duarte Campos, João Marques Mendes and Raquel Freitas, PLMJ
emission of one or more dangerous substances that seriously affect health, the safety of people and prop- erty, and the environment, the range of fines for the more serious offences can be doubled. Additionally, in the most serious situations, apart from fines, interim decisions (including the preventative suspension of the polluting activity) and ancillary sanctions (such as a ban on carrying out the activity or the loss of public subsidies) may be applied. Civil liability If an environmental offence causes damage to a third party, the perpetrator is liable to pay compensation to repair the damage caused to people and property. Environmental liability for environmental damage This type of responsibility is designed to repair the damage caused to the environment itself – specifi- cally, significant damage caused to protected envi- ronmental assets. Causing environmental damage, or an imminent danger of such damage, while pursuing economic activities might lead to the liability of the perpetrator. Liability for environmental damage implies the obligation to implement preventative and repair measures, and to bear the associated costs. Criminal environmental liability The Portuguese Criminal Code includes four environ- mental crimes: • damage to nature (species, natural habitats and subsoil); • pollution, associated with the degradation of envi- ronmental components such as air, water and soil; • pollution that causes a common danger, in cases where the pollution triggers danger to the life or physical integrity of a third party; and • activities that are dangerous to the environment, including some actions concerning ozone-deplet- ing substances, and trans-boundary movements of waste. In the worst-case scenario, environmental crimes may lead to the application of a five-year custodial sen- tence. If death or physical injury results from the crime of pollution that causes a common danger, both the minimum and maximum thresholds are increased by one third.
For the crimes they commit, legal persons and similar entities are subject to the main penalties of a fine or of dissolution. The limits of the fine applicable to legal persons and similar entities are determined with refer- ence to the term of imprisonment provided for natural persons, and one month’s imprisonment corresponds to ten days of fine. Each day of fine corresponds to an amount between EUR100 and EUR10,000, which the court sets according to (among other things) the eco- nomic and financial situation of the convicted person and costs regarding employees. Limits and Conditions on Civil, Environmental and Administrative Liability The limitation periods referred to above should be considered as general limits on liability. In the case of civil and environmental liability, there are specifics concerning guilt and causation. In these kinds of liability, the assessment of the causal link is based on the likelihood and probability that the harm- ful act caused the damage in question. Concerning guilt, for some economic activities listed in the law, these types of liability are applicable regardless of the existence of guilt or intent. Civil liability Traditionally, this depends on meeting five require- ments, specifically: • fact; • illegality; • fault (in cases where the liability is not strict); • damage to a third party caused by damaging an environmental component; and • a causal connection between the fact and the damage (based on a likelihood criterion). These conditions are cumulative, so failure to meet any one of them is sufficient for there to be no liability. If several persons are liable, all are jointly and severally liable for the damage, even if one or more are at fault, without prejudice to the correlative right of recourse that they may exercise reciprocally. When it is not possible to individualise the degree of participation of each of the responsible parties, they are presumed to be liable in equal shares.
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