PORTUGAL Law and Practice Contributed by: Andreia Candeias Mousinho, Diogo Duarte Campos, João Marques Mendes and Raquel Freitas, PLMJ
according to the degree of culpability of each one and not merely pro rata. See 5.3 Key Defences and 6.1 Liability for Historical Environmental Incidents or Damage . 10.2 Exemplary or Punitive Damages The principle of equivalence between damage and compensation applies to environmental civil claims to its full extent. Thus, exemplary or punitive damages have no place in Portuguese law. It should be noted that the deterrence effect usually linked to exemplary or punitive damages is pursued by the application of significant penalties when the unlawful act is also specifically qualified by the law as an administrative offence. 10.3 Class or Group Actions The Portuguese Constitution recognises the funda- mental right to bring a popular action, as part of the set of political participation rights. The Constitution expressly lists the environment as an asset that can be protected by popular action. This means that, by means of popular action, any citizen, as well as cer- tain associations and organisations, can access the judiciary system to protect legal situations that are not susceptible to individual appropriation, as is often the case with environment-related matters. This protec- tion can be exercised judicially or before the admin- istrative authorities. Institutional parties can bring popular actions, and it is important to emphasise the role of environmental non-governmental organisations (ENGOs), which have been granted broad legal standing in environmental matters. ENGOs are, in principle, exempt from paying court fees and benefit from a 50% exemption from the fees due for accessing environmental information held by public authorities. Whether or not they have a direct interest in the legal action, ENGOs have legal standing to: • bring the legal actions necessary to prevent, cor- rect, suspend and put an end to acts or omissions of public or private entities that constitute a threat to or may damage the environment;
• bring legal actions to enforce civil liability in rela- tion to the acts and omissions referred to above (although they are not entitled to any financial com- pensation arising from them, the role of ENGOs here is to open the court case and organise the joinder of any entitled injured parties to the court action); • take legal action against administrative acts, deci- sions and regulations that violate the legal provi- sions that protect the environment; and • lodge complaints or accusations, act as inter- ested parties ( assistentes ) in criminal proceedings for crimes against the environment, and monitor administrative offence proceedings, should they so require. 10.4 Landmark Cases There is a growing interest in the environmental impacts of public and private projects. EIA Procedure The court annulled the environmental impact decision regarding the Crato multi-purpose hydraulic develop- ment project, on the grounds that the analysis of pro- ject alternatives was not properly carried out, that an adequate assessment of the project’s effects on the Natura 2000 Network areas was not conducted, and that the cumulative effects of infrastructure associ- ated with the project were not considered (Case No 299/22.1BECTB). This action was brought by an envi- ronmental association against the licensing entities. An appeal was filed, which is currently pending a deci- sion. Citizens’ Right Not to Be Disturbed In matters of noise, there is case law in Portugal deciding, in general terms, that the rights of the resi- dents should prevail over the rights of the operators of economic activities, and this may happen even if the licensing is valid and noise limits are not exceeded. Consequently, in such circumstances, operators may be obliged to adopt mitigation measures in order to reduce the noise produced. Specifically, there is case law (Case No 2209/08.0TBT- VD.L1-1) in which the court upheld the right of inhabit- ants living in the vicinity of a wind farm to have wind turbines removed or their operation suspended at a
363 CHAMBERS.COM
Powered by FlippingBook