European Commission Takes Action Over Portugal Breaches of Environmental Law

July 13, 2005

The European Commission has decided to pursue infringement proceedings against Portugal in six cases involving breaches of EU environmental law. In one of these cases the commission is taking Portugal to the European Court of Justice for incorrect transposition of some aspects of the EU Directive on environmental impact assessments. In the five other cases, touching upon issues as varied as air pollution, waste, waste water treatment and noise, Portugal has been sent final written warnings, the last step before a referral to the European Court of Justice. These actions are part of a series of environment-related infringement decisions against several member states, which the commission is currently announcing.

Stavros Dimas, environment commissioner said, "The commission has a duty to ensure that EU environmental legislation is implemented fully, correctly and on time. Portugal should fill the gaps in its legislation without delay in order to provide its citizens with a clean and healthy environment.”

Environmental impact assessment

Checks by the commission have revealed that several provisions of the Environmental Impact Assessment Directive,[1] as revised in 1997, have not been correctly transposed by Portugal’s decree-law of 2000. The directive requires authorities to examine the environmental impacts of infrastructure projects so that they can be taken into account in the authorization process. It also provides for public consultation, and the results of this must also be taken into account in the authorization process.

Examples of the Portuguese law’s shortcomings include not fully incorporating criteria for screening whether individual projects require an assessment and failing to require that developers provide information on alternatives to the projects they propose.

The commission sent Portugal a final written warning over the case on Dec. 22, 2004. The Portuguese authorities have since repeated their intention to modify the decree-law. However, to date no revision has been communicated to the commission.

Urban wastewater treatment

Portugal has been sent a final written warning for failure to adequately treat the wastewater discharged from 17 cities and towns of more than 15,000 inhabitants. The EU’s Urban Wastewater Treatment Directive[4] sets a deadline of Dec. 31, 2000 for so-called secondary treatment to be in place before water is discharged from cities and towns of this size.

The Urban Wastewater Treatment Directive addresses nutrient-based, bacterial and viral pollution caused by urban wastewater. Urban waste water that discharges excessive levels of nutrients, in particular phosphorous and nitrogen, into rivers and seas promotes excessive growth of algae and other forms of aquatic plants. This process known as "eutrophication" in turn leads to a lowering of oxygen levels, threatening the survival of fish, which depend on oxygen. It can also make the water unsafe for drinking. By introducing potentially harmful bacteria and viruses, the discharges also pose risks to human health in waters that are used for bathing or for shellfish culture.

The commission sent a first written warning on July 9, 2004 in relation to 29 cities and towns whose wastewater was not properly treated. In response, Portugal improved the situation in some locations and corrected information on population size and on the classification of the receiving waters in some others. However, there are still 17 cities and towns with more than 15,000 inhabitants that do not comply with the requirements of the Urban Wastewater Treatment Directive.

Article 226 of the Treaty gives the commission power to take legal action against a member state that is not respecting its obligations. If the commission considers that there may be an infringement of EU law that warrants the opening of an infringement procedure, it addresses a "Letter of Formal Notice" to the member state concerned, requesting it to submit its observations by a specified date, usually two months.

In the light of the reply or absence of a reply from the member state concerned, the commission may decide to address a "Reasoned Opinion" to the member state. This clearly and definitively sets out the reasons why it considers there to have been an infringement of EU law and calls upon the Member State to comply within a specified period, normally two months.

If the member state fails to comply with the Reasoned Opinion, the commission may decide to bring the case before the European Court of Justice. Where the Court of Justice finds that the Treaty has been infringed, the offending member state is required to take the measures necessary to conform.

Article 228 of the Treaty gives the Commission power to act against a Member State that does not comply with a previous judgment of the European Court of Justice, again by issuing a first written warning and then a second and final written warning The article then allows the Commission to ask the Court to impose a financial penalty on Portugal.

Source: Europa