C. Portugal

C. Portugal (1) Multilateral Environmental Agreements On 21 July 2015, the Portuguese Republic deposited the ratification instrument for the International Convention on Civil Liability for Bunker Oil Pollution Damage (adopted in London on 23 March 2001), as documented by Notice 7/2016 of 6 April. The convention entered into force for Portugal on 21 October 2015. Parliamentary Resolution 197-A/2016 of 30 September approved the Paris Agreement within the United Nations Framework Convention on Climate Change. (2) Bilateral Environmental Legal Issues The past year witnessed the renewal of protests from Portuguese and Spanish non-governmental organizations against the continued operation of the Almaraz nuclear plant, which is located in Spain, 100 kilometres from the international border. Both reactors in this plant have a history of serious failings in the cooling system, which uses water from the Tagus, an international river that empties into the Atlantic Ocean near Lisbon. Permits for the operation of the reactors expire in June 2021 (Group 1) and June 2023 (Group 2). In late 2016, Spanish authorities approved the construction of a nuclear waste warehouse at the Almaraz nuclear plant. This move was interpreted as a prequel to an extension of the permits for the operation of the reactors, adding an extra twenty years to the forty-year period of the current permits. Since the approval of the construction of the nuclear waste warehouse was carried out without an international environmental impact assessment or any previous consultation with the neighbouring country, by the end of the year, Portuguese authorities were considering the possibility of filing a complaint against Spain under Article 259 of the Treaty on the Functioning of the European Union. According to Article 259, the matter would first be referred to the European Commission and would, at a later stage, be brought before the Court of Justice of the European Union (CJEU). The grounds for the complaint would be the violation of paragraph 4, Article 7 of EU Directive 2011/92 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, as amended by EU Directive 2014/52. The paragraph establishes a duty for cooperation among member states when projects raise potential transboundary effects: ‘The Member States concerned shall enter into consultations regarding, inter alia, the potential transboundary effects of the project and the measures envisaged to reduce or eliminate such effects and shall agree on a reasonable time-frame for the duration of the consultation period.’ The Portuguese Parliament unanimously approved Resolution 107/2016 of 14 June asking the Portuguese government to request the shutdown of the Almaraz nuclear plant from the Spanish government and the European Union (EU) on the grounds of safety concerns as outlined in Greenpeace’s Critical Review of the Updated National Action Plans (NacP) of the EU Stress Tests on Nuclear Power Plants. The new generation of joint management plans for shared river basins for the time frame of 2016–21 were implemented during 2016, as required by EC Directive 2000/60 Establishing a Framework for Community Action in the Field of Water Policy (Water Framework Directive) and as foreseen by the plenary meeting of the Follow Up Commission on the Convention on the Co-operation for the Protection and Sustainable Use of the Water Resources of the Portuguese-Spanish River Basins in December 2015. Portuguese Council of Ministers Resolution 52/2016 of 20 September approved management plans for each hydrographic region of mainland Portugal. Spain made a similar move by approving Royal Decree 1/2016 on 8 January. Shared river basins among the two countries include the Minho, Douro, Tagus, and Guadiana rivers. (3) Relations with the EU (A) Implementation of EC Legislation The following legislation to implement EU laws was adopted in 2016: Decree-Law 23/2016 of 3 June implemented EURATOM Directive 013/51, laying down requirements for the protection of the health of the general public in regard to radioactive substances in water intended for human consumption; Decree-Law 630/2016 of 24 June implemented EU Directives 2015/573, 2015/574, and 2015/863 modifying annexes to EU Directive 2011/65 on Certain Hazardous Substances in Electrical and Electronic Equipment; Decree-Law 34/2016 of 28 June implemented EU Directive 2014/80, amending Annex II to EC Directive 2006/118 on the Protection of Groundwater against Pollution and Deterioration; Decree-Law 42/2016, of 1 August implemented EU Directive 2014/101, amending the Water Framework Directive and Establishing a Framework for Community Action in the Field of Water Policy; and Law 26/2016, of 22 August implemented EU Directive 2013/37, which amends EC Directive 2003/98 on the Re-Use of Public Sector Information and, for the sake of consolidation, did re-cast this directive and also EC Directive 2003/4 on Public Access to Environmental Information. Law 26/2016 regulates public access to information in a broad manner, including access to environmental information. (B) Judicial Decisions and Infringement Procedures The year witnessed the re-floating of some ‘historical’ infringements of environmental acquis, mostly related to waste water management. In its judgment of 28 January 2016 (Case C-398/14), the CJEU declared: that, by not ensuring that discharges from urban waste water treatment plants were subject to an adequate level of treatment, meeting the relevant requirements of Annex I.B to Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, as amended by Regulation (EC) No. 1137/2008 of the European Parliament and of the Council of 22 October 2008, in several agglomerations, the Portuguese Republic has failed to fulfil its obligations under Article 4 of that directive. All such agglomerations have sparce populations (less than 14,000 inhabitants) and have benefited, or are benefiting, from public works necessary for compliance with the requirements of EEC Directive 91/271 on Urban Waste Water Treatment. By the judgment of 22 June 2016 (Case C-557/14), the CJEU, again on the implementation of EEC Directive 91/271, declared ‘that, by failing to take all the measures necessary to comply with the judgment of 7 May 2009 in Commission v Portugal (C-530/07, EU:C:2009:292), the Portuguese Republic has failed to fulfil its obligations under Article 260(1) TFEU.’ The CJEU added the possibility of a penalty payment of €8,000 for each day of delay in implementing the measures necessary to comply with the above-mentioned judgment and ordered the Portuguese Republic to pay the European Commission, into the ‘European Union own resources’ account, a lump sum payment of €3,000,000. (4) National Legislation of International Significance Decree-Law 54/2016 of 25 August implemented a program for the protection and conservation of the Iberian wolf (Canis lupus signatus). The Iberian wolf is protected at the international level by the Council of Europe’s Convention on the Conservation of European Wildlife and Natural Habitats and by EEC Council Directive 92/43 on the Conservation of Natural Habitats and of Wild Fauna and Flora at the EU level. In Portugal, the Iberian wolf is on the verge of extinction. As in other European countries, the protection of wolves faces strong opposition from human populations that feel threatened by the wolves’ presence. The decree-law establishes a state-financed compensation mechanism for the loss of livestock and shepherd dogs that fall prey to the wolves. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Yearbook of International Environmental Law Oxford University Press

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© The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
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0965-1721
eISSN
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D.O.I.
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Abstract

(1) Multilateral Environmental Agreements On 21 July 2015, the Portuguese Republic deposited the ratification instrument for the International Convention on Civil Liability for Bunker Oil Pollution Damage (adopted in London on 23 March 2001), as documented by Notice 7/2016 of 6 April. The convention entered into force for Portugal on 21 October 2015. Parliamentary Resolution 197-A/2016 of 30 September approved the Paris Agreement within the United Nations Framework Convention on Climate Change. (2) Bilateral Environmental Legal Issues The past year witnessed the renewal of protests from Portuguese and Spanish non-governmental organizations against the continued operation of the Almaraz nuclear plant, which is located in Spain, 100 kilometres from the international border. Both reactors in this plant have a history of serious failings in the cooling system, which uses water from the Tagus, an international river that empties into the Atlantic Ocean near Lisbon. Permits for the operation of the reactors expire in June 2021 (Group 1) and June 2023 (Group 2). In late 2016, Spanish authorities approved the construction of a nuclear waste warehouse at the Almaraz nuclear plant. This move was interpreted as a prequel to an extension of the permits for the operation of the reactors, adding an extra twenty years to the forty-year period of the current permits. Since the approval of the construction of the nuclear waste warehouse was carried out without an international environmental impact assessment or any previous consultation with the neighbouring country, by the end of the year, Portuguese authorities were considering the possibility of filing a complaint against Spain under Article 259 of the Treaty on the Functioning of the European Union. According to Article 259, the matter would first be referred to the European Commission and would, at a later stage, be brought before the Court of Justice of the European Union (CJEU). The grounds for the complaint would be the violation of paragraph 4, Article 7 of EU Directive 2011/92 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, as amended by EU Directive 2014/52. The paragraph establishes a duty for cooperation among member states when projects raise potential transboundary effects: ‘The Member States concerned shall enter into consultations regarding, inter alia, the potential transboundary effects of the project and the measures envisaged to reduce or eliminate such effects and shall agree on a reasonable time-frame for the duration of the consultation period.’ The Portuguese Parliament unanimously approved Resolution 107/2016 of 14 June asking the Portuguese government to request the shutdown of the Almaraz nuclear plant from the Spanish government and the European Union (EU) on the grounds of safety concerns as outlined in Greenpeace’s Critical Review of the Updated National Action Plans (NacP) of the EU Stress Tests on Nuclear Power Plants. The new generation of joint management plans for shared river basins for the time frame of 2016–21 were implemented during 2016, as required by EC Directive 2000/60 Establishing a Framework for Community Action in the Field of Water Policy (Water Framework Directive) and as foreseen by the plenary meeting of the Follow Up Commission on the Convention on the Co-operation for the Protection and Sustainable Use of the Water Resources of the Portuguese-Spanish River Basins in December 2015. Portuguese Council of Ministers Resolution 52/2016 of 20 September approved management plans for each hydrographic region of mainland Portugal. Spain made a similar move by approving Royal Decree 1/2016 on 8 January. Shared river basins among the two countries include the Minho, Douro, Tagus, and Guadiana rivers. (3) Relations with the EU (A) Implementation of EC Legislation The following legislation to implement EU laws was adopted in 2016: Decree-Law 23/2016 of 3 June implemented EURATOM Directive 013/51, laying down requirements for the protection of the health of the general public in regard to radioactive substances in water intended for human consumption; Decree-Law 630/2016 of 24 June implemented EU Directives 2015/573, 2015/574, and 2015/863 modifying annexes to EU Directive 2011/65 on Certain Hazardous Substances in Electrical and Electronic Equipment; Decree-Law 34/2016 of 28 June implemented EU Directive 2014/80, amending Annex II to EC Directive 2006/118 on the Protection of Groundwater against Pollution and Deterioration; Decree-Law 42/2016, of 1 August implemented EU Directive 2014/101, amending the Water Framework Directive and Establishing a Framework for Community Action in the Field of Water Policy; and Law 26/2016, of 22 August implemented EU Directive 2013/37, which amends EC Directive 2003/98 on the Re-Use of Public Sector Information and, for the sake of consolidation, did re-cast this directive and also EC Directive 2003/4 on Public Access to Environmental Information. Law 26/2016 regulates public access to information in a broad manner, including access to environmental information. (B) Judicial Decisions and Infringement Procedures The year witnessed the re-floating of some ‘historical’ infringements of environmental acquis, mostly related to waste water management. In its judgment of 28 January 2016 (Case C-398/14), the CJEU declared: that, by not ensuring that discharges from urban waste water treatment plants were subject to an adequate level of treatment, meeting the relevant requirements of Annex I.B to Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, as amended by Regulation (EC) No. 1137/2008 of the European Parliament and of the Council of 22 October 2008, in several agglomerations, the Portuguese Republic has failed to fulfil its obligations under Article 4 of that directive. All such agglomerations have sparce populations (less than 14,000 inhabitants) and have benefited, or are benefiting, from public works necessary for compliance with the requirements of EEC Directive 91/271 on Urban Waste Water Treatment. By the judgment of 22 June 2016 (Case C-557/14), the CJEU, again on the implementation of EEC Directive 91/271, declared ‘that, by failing to take all the measures necessary to comply with the judgment of 7 May 2009 in Commission v Portugal (C-530/07, EU:C:2009:292), the Portuguese Republic has failed to fulfil its obligations under Article 260(1) TFEU.’ The CJEU added the possibility of a penalty payment of €8,000 for each day of delay in implementing the measures necessary to comply with the above-mentioned judgment and ordered the Portuguese Republic to pay the European Commission, into the ‘European Union own resources’ account, a lump sum payment of €3,000,000. (4) National Legislation of International Significance Decree-Law 54/2016 of 25 August implemented a program for the protection and conservation of the Iberian wolf (Canis lupus signatus). The Iberian wolf is protected at the international level by the Council of Europe’s Convention on the Conservation of European Wildlife and Natural Habitats and by EEC Council Directive 92/43 on the Conservation of Natural Habitats and of Wild Fauna and Flora at the EU level. In Portugal, the Iberian wolf is on the verge of extinction. As in other European countries, the protection of wolves faces strong opposition from human populations that feel threatened by the wolves’ presence. The decree-law establishes a state-financed compensation mechanism for the loss of livestock and shepherd dogs that fall prey to the wolves. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

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Yearbook of International Environmental LawOxford University Press

Published: Dec 28, 2017

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