Key Benefits:
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PROPOSED LAW NO. 20 /X
Exhibition of Motives
1. Making an echo of the growth of a collective environmental consciousness, has
assisted in recent years to a continuous development of the criminal law of the
environment, in the sense of a wider protection of environmental legal goods and
a worsening of the criminal moldings. To a certain extent, our legal order
criminal has been influenced by the existing model in Germany, in particular after
the passage of the Environmental Protection Act, 1980, and the second law of fight against the
environmental crime, November 1, 1994.
2. On the other hand, the counterordinational right has intensified its action by extending the
their field of acting to all areas of economic activity. Such registration checks-
if, consequently, also in the environmental framework.
3. There is currently no such thing, nor has it ever existed, a legal regime for the against-
environmental ordinations. It thus has to turn to the General Regime of the Against-
Ordinances, approved by the Decree-Law No. 433/82 of October 27, and amended by the
Decree-Law No 356/89 of October 17 by the Decree-Law No. 244/95 of 14 of
September, by the Decree-Law No. 323/2001 of December 17 and by the Law n.
109/2001, of December 24, and which was not thought to be for the resolution of concrete
counterordinational problems in the environmental area that impose solutions very much
own.
4. The project concerned thus has as an objective to establish the framework law of the countervents
environmental ordinations, taking into consideration the specificity of that matter-
taking, incidentally, the example of what comes succeeding in other areas of the activity
economic, such as the labour, air, or, still, the market of values
securities-, initiative to be accompanied by a reinforcement of the activity of
oversight of the Administration.
5. The said framework law intends to discipline in a systematic manner the various subjects that
mandatorily a scheme of this scope has to abark, framed by sound principles and
doctrinally accepted, as well as to present a stepping stone for the proceedings of against-
environmental ordinance adapted to its specificity.
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6. From the articulate now proposed deserve special emphasis on its importance some
subjects. Thus, new values are set for the fines to be applied in the context of
environmental offences, responding to the disupdate of the amounts of the fines listed in the
article 17 of the General Regime of the Contra-Ordinations in force. According to experiences
recent and successful of General Contract Regimes-Sectoral Ordinances supported in
important dogmatic contributions, environmental counter-ordinations go on to classify
as "light", "severe" and "very serious". The counterordinational responsibility of the
legal persons is now established in a precise manner, following closely the
modern dogmatic developments in this matter. Whether the cautionary measures want the
ancillary sanctions are now established with due development and thoughtout
specifically for environmental subjects. The whole regime of the notifications at the headquarters of
counter-ordering process is now disciplined in the sense of avoiding dilatory maneuking or
minimise their use by the defendants, thus aiming to counter the expedients
current to which these normally resort. It has chosen to integrate into this degree a
basic provision on administrative embargoes in environmental matters that se
they found scattered by several diplomas. Establish yourself, for the first time, a cadaster
national to allow to offer an integral knowledge, at the national scale, of all the
offenders. Great importance and significance is still the creation, now proposed, of a
environmental intervention fund that allows, through the revenues that you earn from
a percentage of the product of the fines applied, to cope with serious environmental situations
that by its size and the financial burden that its cessation and repair involves
has made it impossible for any administrative authority to proceed in compliance, by staying
so injured almost always irreparably goods and resources needed by the Man
want to Nature.
7. The approval of the present proposal makes it possible to amend all diplomas of matter
environmental, adapting them and conforming them with the new requirements as well as
serve as a normative standard for new diplomas in environmental matters that
come to be produced.
8. It was triggered the hearing of the National Association of Portuguese Municipalities and
listened to the National Commission on Data Protection.
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposal for a law:
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Article 1.
Framework law of environmental contra-ordinations
The framework law of environmental contra-ordinations is hereby approved in annex to this Law.
Article 2.
Entry into force
This Law shall come into force 30 days after the date of its publication.
Seen and approved in Council of Ministers of June 23, 2005
The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs
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ANNEX
FRAMEWORK LAW OF ENVIRONMENTAL CONTRA-ORDINATIONS
PART I
From counterordinance and fine
Title I
From the environmental counter-ordinance
Article 1.
Scope
1-This diploma establishes the regime applicable to environmental counter-ordinations.
2-Constitute counterordinate environmental law all the unlawful and objectionable fact that fulfils
a legal type corresponding to the violation of legal and regulatory provisions
relating to the environment which is to dispose of rights or impose duties, for which if
comine a fine.
3-For the purposes of the preceding paragraph, it is considered to be legislation and regulations
environmental whole with regard to natural and human environmental components
as listed in the Bases of the Environment Act.
Article 2.
Regime
Environmental counter-ordinations are regulated by the provisions of this diploma and,
subsidiary, by the general regime of counter-ordinations.
Article 3.
Principle of legality
It is only punishable as an environmental counterordinance the fact described and declared liable to
cofine by law prior to the time of its practice.
Article 4.
Application in time
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1-A The punishment of the environmental counter-ordinance is determined by the prevailing law in the
moment of the practice of the fact or the filling of the assumptions of which
depends.
2-If the law beigens to the time of the practice of the fact is subsequently modified, it applies-
if the law more favorable to the defendants, save if the latter has already been convicted by decision
definitive or transitioned on trial.
3-When the law is worth for a certain period of time, it is still punishable
as an environmental counterordinance the fact practiced during that period.
Article 5.
Application in space
Unless treated or international convention to the contrary, the present diploma shall apply
to the facts practiced:
a) In Portuguese territory, regardless of the nationality or registered office of the
agent;
b) On board of aircraft, trains and Portuguese ships.
Article 6.
Time of practice of the fact
The fact shall be deemed to be practiced at the time the agent has acted or, in the case of
omission, should have acted, regardless of the time when the typical result
if it has produced.
Article 7.
Place of practice of the fact
The fact considers itself to be practiced in the place where, in whole or in part and under any
form of comparticipation, the agent acted or, in the case of omission, should have acted,
as well as in that in which the typical result has been produced.
Article 8.
Responsibility for counter-ordinations
1-The fines can be applied to legal persons, irrespective of the
regularity of its constitution, as well as to societies and associations without
legal personality.
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2-The legal persons and the entities that are equated to them in the preceding paragraph
are responsible for the counter-ordinations provided for in this diploma when the
facts have been practiced, in the exercise of the respective activity, on their behalf
or on your own, by the holders of your social bodies, mandators, representatives
or workers.
3-The holders of the board of directors of legal persons and entities
equistops, as well as those responsible for the direction or surveillance of areas of
activity in which some counterordinance is practiced, incur the sanction
intended for the author, especially attenuated, when, knowing or owing
know the practice of the offence, do not adopt the appropriate measures to put it
term immediately, unless more serious sanction kayaks them by force of another
legal provision.
4-Cesses the provisions of the preceding paragraph if the legal person proves that he has complied with all
the duties of which it was intended, not loaning, in spite of this, preventing the practice of the
infringement on the part of its employees or mandators without powers of
representation.
Article 9.
Punishability by dolo and neglect
1-The counter-ordinations are punishable by title of dolo or negligence.
2-A negligence in the environmental counter-ordinations is always punishable.
3-The error on elements of the type, about the prohibition or on a state of affairs that,
to exist, would depart from the ilicitude of the fact or the fault of the agent, excludes the dolo.
Article 10.
Punishability of the attempt
The attempt is punishable in the ranked counter-ordinations of serious and very serious,
being the minimum and maximum limits of the respective cofine reduced to half.
Article 11.
Solidarity liability
1-When the offences are also attributable to legal persons or entities
equips, these respond solidly by the payment of the fines, from the expense
or of another burden associated with the sanctions applied in the counterordinance process
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that are the responsibility of the individual agents mentioned in the same
precept.
2-If the agent is a legal person or equated person, they respond by the payment of the
coima, solidarily with this, the respective administrators, managers or
directors.
Article 12.
Error on ilicitude
1-Age without fault who acts without awareness of the ilicitude of the fact, if the error does not
is objectionable.
2-If the error is objectionable to it, the fine can be especially attenuated.
Article 13.
Inimputability in reason of age
For the purposes of this diploma, the smallest of 16 are considered to be inimputable
years.
Article 14.
Enmputability in the reason of psychic anomaly
1-It is inimputable who, by virtue of a psychic anomaly, is incapable, at the moment
of the practice of the fact, to assess the ilicitude of this or to determine itself in accordance with
this assessment.
2-Can be declared inimuble who, by virtue of a serious psychic anomaly,
not accidental and whose effects do not dominate, without why it can be censored,
has, at the time of the practice of the fact, the ability to assess the ilicitude of this or
to determine itself in accordance with this appreciably diminished assessment.
3-A imputability is not excluded when the psychic abnormality has been provoked
by the agent with the intention of practicing the fact.
Article 15.
Authorship
It is punishable as an author who to execute the fact, by himself or through
other, or take direct part in its implementation, by agreement or together with another or
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others, and still who, dolly, determine another person to the practice of the fact, since
that there is execution or commencement of execution.
Article 16.
Complicity
1-It is punishable as an accomplice who, dolefully and by any form, provide aid
material or moral to the practice by the other of a doleful fact.
2-It is applicable to the accomplice to the sanction fixed for the author, especially attenuated.
Article 17.
Comparticipation
1-If several agents have been involved in the fact, any of them incurn
liability for environmental counterordinance even if ilicitude or grade
of ilicitude of the fact depend on certain qualities or special relations of the agent
and these only exist in one of the comparticipants.
2-Each comparticipant is punished second to his guilt, regardless of punishment
or of the degree of guilt of the other comparticipants.
Title II
From the right of access and administrative embargoes
Article 18.
Right of access
1-To the personnel of the administrative authorities in the exercise of the inspective functions, of
monitoring or surveillance is provided for free entry into the establishments and places
where the activities to be inspected are carried out.
2-Those responsible for the spaces referred to in the preceding paragraph are required to
provide the entry and stay of the staff referred to in the preceding paragraph and the
introduce you to documentation, books, records and any other elements that
they are required to be required, as well as to provide them with the information that is requested.
3-In the event of refusal of access or obstruction to the inspective, surveillance or
surveillance, the collaboration of police forces may be requested to remove such
obstruction and ensure the realization and security of the inspective acts.
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4-The provisions of this article shall apply to other spaces assigned to the exercise of the
inspected activities, particularly motor vehicles, aircraft,
trains and ships.
Article 19.
Administrative embargoes
1-The administrative authorities in the exercise of their powers of surveillance,
monitoring or inspection may determine, within your area of performance
geographical, the embargo of any constructions in areas of prohibited occupation or
conditioned on protective zones established by law or in contravention of the law,
regulations or conditions of licensing or authorization.
2-Administrative authorities may for the purposes of the previous article consult
fully and without reservation with the Municipal Chambers the processes
relating to the constructions in question, as well as from them requesting copies, which must
with a sense of urgency being made available by those.
Title III
Of the fines and ancillary sanctions
Chapter I
Of the applicable penalty
Article 20.
Determination of the applicable penalty
1-A The determination of the fine and the ancillary sanctions is made in the function of the ilicitude of the
fact, of the fault of the agent, of the benefits obtained with the practice of the fact, of the situation
economic of the agent and of the seriousness of the offence.
2-In the determination of the ilicitude of the fact and fault of legal persons and entities
equistops will meet, among others, the following circumstances:
a) To the danger or the damage caused;
b) To the occasional or repeated nature of the offence;
c) The existence of acts of concealment or dissimulation aimed at hindering the
discovery of the infringement;
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d) To the existence of acts of the agent intended for, on his or her initiative, to repair the
damage or obviate the dangers caused by the offence.
3-In the determination of the ilicitude of the fact and fault of the natural persons, they shall be satisfied,
in addition to those referred to in the preceding paragraph, to the following circumstances:
a) Level of responsibility, scope of functions and sphere of action in the person
collective in question;
b) Intention to obtain, for you or for others, an illegitimate benefit or cause
damage;
c) Special duty to not commit the offence.
4-In the determination of the applicable sanction are still taken into account
previous of the agent and the requirements for prevention.
5-Are still serviceable the coaction, falsification, false statements, simulation or
another fraudulent medium used by the agent.
Chapter II
Fines
Article 21.
Classification of counter-ordinations
For determination of the applicable fine and taking into account the relevance of the rights and
vested interests, counter-ordinations rank in light, severe and very
graves.
Article 22.
Amounts of the fines
1-A each classificative ranking of gravity of the environmental counter-ordinations
corresponds to a variable fine depending on whether it is applied to a natural person or
collective and in function of the degree of guilt, save the provisions of the following article.
2-The lightweight counterordinations correspond to the following fines:
a) If practiced by natural persons, from € 500 a to € 2500 in case of negligence
and from 1500 a to € 5000 in case of dolo;
b) If practiced by legal persons, from € 9000 a to € 13000 in case of
neglect and of € 16000 a € 22500 in case of dolo.
3-The serious counter-ordinations correspond to the following fines:
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a) If practiced by natural persons, from € 12500 a to € 16000 in case of
neglect and of € 17500 a € 22500 in case of dolo;
b) If practiced by legal persons, from € 25000 a to € 34000 in case of
neglect and of € 42000 a € 48000 in case of dolo.
4-Very serious counterordinations correspond to the following fines:
a) If practiced by natural persons, from € 25000 a to € 30000 in case of
neglect and of € 32000 a € 37500 in case of dolo;
b) If practiced by legal persons, from € 60000 a to € 70000 in case of
neglect and of € 500000 a € 2500000 in case of dolo.
Article 23.
Special criteria of measure of the fine
The frame of the fine in the very serious counterordinations provided for in the sub- a) and b) from the
n Article 22 (4) is raised to double in its minimum and maximum limit when the
presence or issue of one or more hazardous substances severely affect the health, the
safety of people and goods and the environment.
Article 24.
Fulfillment of the omitted duty
Whenever the environmental counterordinance consisted of the omission of a duty, the
payment of the fine does not waiver the offender of its compliance if this is still
possible.
Article 25.
Orders from the administrative authority
1-Constitui counter-ordinance grave the non-compliance of orders or warrants
legitimate from the administrative authority transmitted in writing to your
recipients.
2-If, verified the default to which the preceding paragraph is concerned, the authority
administrative notify the recipient to comply with the order or warrant and that
continue to fail to comply, the fine corresponding to the counter-ordinations is applicable
very serious, provided that the notification of the administrative authority contains the
express indication that the default applies to this sanction.
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3-The documents, namely maps, transport guides, reports and bulletins
that the agent or defendants is obliged to send by force of the law or the solicitation of the
administrative authority are taken as not sent when they omit data or
are sensed incorrectly.
4-A infringement of the provisions of the preceding paragraph constitutes counterordinance, punished with
fine of € 1000 a € 1500, for natural persons and high at double for the
legal persons.
Article 26.
Reoffending
1-It is punished as recidivist who commit a serious offence practiced with dolo
or a very serious offence, after he was convicted of another offence
serious practiced with dolo or very serious offence.
2-A offence for which the agent has been sentenced is not released for the purpose of
recidivism if between the two offences has elapsed the limitation period.
3-In the event of a recidivism, the minimum and maximum limits of the fine are high in a
third of the respective value.
Article 27.
Counter-ordering contest
1-Whoever has practiced several environmental counter-ordinations is punished with a
coima whose maximum limit results from the sum of the cofines concretely applied to the
offences in tender.
2-A fine to be applied shall not exceed double the highest ceiling of the
environmental counterordinations in concourse.
3-A fine to be applied may not be lower than the highest of the cofines concretely
applied to the various environmental counter-ordinations.
Article 28.
Competition for offences
If the same fact constitutes both crime and environmental counterordinance, it is the
argued punishable by way of crime, without prejudice to the application of the ancillary sanctions
predicted for counter-ordinance.
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Chapter III
Ancillary sanctions
Article 29.
Procedure
1-A The law may, concurrently with the fine, determine, in respect of the offences
serious and very serious, the application of ancillary sanctions, in the terms provided for in the
following articles and in the general regime of counter-ordinations.
2-A The law still determines the cases in which the practice of serious offences and much
serious is the subject of advertising.
3-A advertising of the conviction referred to in the preceding paragraph may consist of the
publication of an extract with the characterization of the offence and the violated standard, the
identification of the offender and the sanction applied:
a) In a national journal journal and in a local periodical publication or
regional, from the area of the infringer's seat, at the expense of this;
b) In the 2 th series of the Journal of the Republic , on the last working day of each quarter, at
relation to offenders convicted in the previous quarter, at the expense of these.
4-The publications referred to in the preceding paragraph shall be promoted by the court
competent, in relation to the offences subject to a judicial decision, and by the authority
administrative, in the remaining cases.
Article 30.
Ancillary sanctions
1-For the practice of the offences provided for in this diploma may be applied to the offender
the following ancillary sanctions:
a) Seizure and loss in favour of the State of the objects, belonging to the defendants,
used or produced when infringement;
b) Interdiction of the exercise of occupations or activities, the exercise of which is dependent on
public title or authorization or type approval of public authority;
c) Deprivation of the right to benefits or subsidies bestowned by entities or
national or community public services;
d) Deprivation of the right to participate in conferences, fairs or national markets
or internationals with the aim of transactioning or giving publicity to their
products or their activities;
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e) Deprivation of right to participate in public pitching or contests that
have for the object of the undertaking or concession of public works, the acquisition
of goods and services, the granting of public services and the allocation of licences
or alvarás;
f) Closure of establishment whose operation is subject to
authorization or leave of administrative authority;
g) Cessation or suspension of licences, alvarás or authorizations related to the
exercise of the respective activity;
h) Loss of tax benefits, credit benefits and lines of
credit financing that there is enjoyed;
i) Sealing of equipment intended for the laboration;
j) Imposition of the measures that show appropriate to the prevention of damage
environmental, to the reposition of the situation prior to the offence and to the minimization of the
effects arising from it.
2-In the event that the penalty provided for in the paragraphs is applied c) and h) of the previous number must
the administrative authority shall immediately communicate to the entity that assigns the benefit
or allowance with a view to the suspension of the remaining plots of the same.
3-In the case of receipt by the infractor of all or part of the benefit or
allowance can the same be condemned to return it.
4-The sanctions referred to in points b) a j) of paragraph 1 have the maximum duration of three years,
counted as of the date of the definitive sentencing decision.
5-When it occurs obstruction to the implementation of the measures provided for in the sub- f), i ) and j)
of paragraph 1 of this Article, it may also be requested from the competent entities to
notification of electric power distributors to disrupting the
supply of this.
Article 31.
Assumptions of the application of ancillary sanctions
1-A sanction referred to in paragraph a) of paragraph 1 of the preceding article can only be enacted
when the objects served or were destined to serve for the practice of a
counterordinance, or by this one were produced.
2-A penalty provided for in the paragraph b) of paragraph 1 of the preceding Article can only be enacted if the
defendants practiced counterordinance in blatant and serious abuse of the function it exercises
or with manifest and serious violation of the duties attached to it.
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3-A penalty provided for in the paragraph c) of paragraph 1 of the preceding Article can only be enacted
when the counterordinance has been practiced in the exercise or because of the
activity in favour of which the allowance is allocated.
4-A penalty provided for in the paragraph d) of paragraph 1 of the preceding article can only be enacted
when the counterordinance has been practiced during or because of the participation
in conference, fair or market.
5-A penalty provided for in the paragraph e) of paragraph 1 of the preceding article can only be enacted
when the counterordinance has been practiced during or because of the acts
public, or in the exercise or because of the activities mentioned in that paragraph.
6-A penalty provided for in points f) and g) of paragraph 1 of the preceding Article can only be enacted
when the counterordinance has been practiced in the exercise or because of the
activity to which the permits, licences or alvarás are referred to or because of the
operation of the establishment.
7-A penalty provided for in the paragraph h) of paragraph 1 of the preceding article can only be enacted
when the counterordinance has been practiced in the exercise or because of the
activity in favour of which the benefit or funding is allocated, and these have
been assigned directly or indirectly by the State or Provenham of the Union
European.
8-A penalty provided for in the paragraph i) of paragraph 1 of the preceding article can only be enacted
when the counterordinance has been practiced through the equipment in question or
with the contest of that one.
Article 32.
Interdiction and inhibition of the exercise of activity
1-Can be applied to those responsible for any counterordinance to interdiction
temporary, up to the limit of three years, from the exercise of the profession or activity to
that the counterordinance respects.
2-A The sanction provided for in this article can only be enacted if the accused practiced it against-
ordering in blatant and serious abuse of the function it exerts or with manifest and
serious violation of the duties attached to it.
Article 33.
Loss of objects
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1-You may be declared lost the objects that served or were destined for
serve for the practice of an environmental counterordinance, or that in consequence
of this were produced, when such objects represent, by their nature or
by the circumstances of the case, grave danger to health, the safety of persons and
goods and the environment or there is serious risk of their use for the practice of a crime
or of another counter-ordinance in environmental matter.
2-Unless otherwise the result of the present diploma, or of the general regime of the against-
ordinances, they shall apply to the loss of objects the rules on ancillary sanction
of loss of objects.
Article 34.
Loss of value
When, due to the malpractice performance of the agent, if it has become fully or partially
unenforceable the loss of objects which, at the time of the practice of the fact, belonged to him,
an amount of cash corresponding to the value of those can be declared lost.
Article 35.
Effects of loss
The definitive character or the transit on trial of the loss decision determines the
transfer of the property to the State.
Article 36.
Independent loss of fine
The loss of objects or the respective value may take place yet that there can be no
procedure against the agent or the latter is not applied a fine.
Article 37.
Objects belonging to third party
The loss of objects belonging to the third party can only take place:
a) When your holders have competed, with guilt, for their use
or production, or of the fact they have taken advantages; or
b) When the objects are, by any title, acquired after the practice of the
fact, knowing the purchasers the provenance.
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Article 38.
Suspension of the sanction
1-A The administrative authority that carried out the application of the penalty may suspend,
fully or partially its execution.
2-A suspension may be conditional on the fulfilment of certain obligations,
specifically those deemed necessary for the regularization of situations
illegal, damage repair or the prevention of health hazards, safety of the
people and goods and environment.
3-The time of suspension of the sanction is set between one and three years, counting its
beginning from the date on which the deadline of the judicial challenge of the decision is exhausted
condensation.
4-Elapsed the time of suspension without the accused having practiced any against-
environmental ordinance, and without having violated the obligations that have been found to you
imposed, stands the conviction without effect, proceeding, in the contrary, to the
execution of the sanction applied.
Title IV
From prescription
Article 39.
Prescription
1-The procedure by the serious and very serious counterordinations prescreve as soon as
on the practice of the counter-ordinance there is the five-year term elapsed.
2-The procedure by the light counterordinations prescribes as soon as about the practice of the
counter-ordinance there is elapsed the three-year term.
3-The limitation period of the sanctions counted from the day on which it becomes final or
transits on trial the decision is to:
a) Three years, in the case of serious or very serious counterordinations and
b) Two years, in the case of mild counterordinations.
PART II
From the counterordinance process
Title I
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Of the precautionary measures
Article 40.
Determination of the precautionary measures
1-When it proves necessary for the statement of the process or when they are in
causes the health, safety of people and goods and the environment, the authority
administrative may determine one or more of the following measures:
a) Suspension of the laboration or the preventive closure in whole or in part of the
polluting unit;
b) Notification of the accused to cease the activities developed in violation
of the environmental components;
c) Suspension of any or some activities or functions exerted by the
argued;
d) Subjection of the laboration to certain conditions necessary for compliance
of the environmental legislation;
e) Sealing of equipment for certain time;
f) Technical recommendations to be implemented compulsorily when you are in
causes the improvement of the environmental conditions of laboring;
g) Imposition of the measures that show appropriate to the prevention of damage
environmental, to the reposition of the situation prior to the offence and to the minimization of the
effects arising from it.
2-A The determination referred to in the previous number beams, depending on the cases:
a) Until its revocation by the administrative authority or by judicial decision;
b) Until the commencement of fulfilment of ancillary sanction of equivalent effect to the
measure provided for in Article 30 of this diploma;
c) Up to the supervenience of administrative or judicial decision that does not convict the
argued for the ancillary sanction provided for in Article 30, when it was enacted
cautionary measure of equivalent effect;
d) Until the exceeding of the period of instruction set out by Article 47º.
3-When it occurs obstruction to the implementation of the measures provided for in paragraph 1 of this
article, may be requested by the administrative authority to the entities
electrical energy distributors the interruption of supply of this to the
defendants argued by that nominee.
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4-A determination of the suspension and preemptive closure provided for in the n.
1 may be the subject of publication by the administrative authority being the
costs of the publication supported by the offender.
5-When, under the terms of the paragraph c) of paragraph 1, the total suspension is determined
of the activities or functions exercised by the accused and this comes to be
doomed, in the same proceeding, in an ancillary sanction that consists in interdiction or
inhibition of the exercise of the same activities or functions, is discounted by whole
in the performance of the ancillary sanction the time of duration of the preventive suspension.
Article 41.
Cautionary apprehension
1-A The law may determine the provisional seizure by the administrative authority, in the
terms of this law and the general regime of counter-ordinations, particularly of the
following goods and documents:
a) Equipment intended for the laboration;
b) Licences, certificates, authorizations, approvals, replacement guides and or
other similar documents;
c) Animals or plants of illegally protected species in the possession of persons
natural or legal.
2-In the case of seizure under the terms of paragraph a) from the previous number, can your
owner, or who represents the dam, be designated faithful depositary, with the obligation
of not using the goods that are cautiously seized, under penalty of a crime of
qualified disobedience.
Title II
From the Process
Chapter I
From Notifications
Article 42.
Notifications
1-The notifications in the counter-ordering process are carried out by registered letter
with notice of receipt, where it is charged to the accused the practice of against-
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ordering, of the decision that applies to it fine, sanction ancillary or some measure
cautionary, as well as the convening for the latter to attend or participate in acts or
representations.
2-The notifications are directed to the registered office or to the domicile of the recipients.
3-In the event that the notice of receipt is returned or does not come signed by the recipient
if you have refused to receive it or you have not raised it within the time provided for in the regulation
of the postal services, the notification is made in the 15 days following the return by
new registered letter with acknowledging receipt, presumed to be carried out
notification if the letter has not been returned or raised on the day of the postal registration
of the second submission.
4-The notifications referred to in the preceding paragraphs may be made by telefax or
via e-mail, whenever there is knowledge of the telefax or the address of
electronic mail of the notifying and when the authenticity of such procedures
may be guaranteed under the law.
5-When the notification is carried out by telefax or via electronic mail, it is presumed
which was made on the date of the issue, serving as proof, respectively, the copy of the
warning where it consents the mention that the message was received successfully, well
as the date, time and telefax number of the receiver or the extract of the message
carried out, which is next to the autos.
6-The order that orders the notification can be printed and signed by chancela.
7-Constitui notification the receipt by the interested of copy of minutes or seat of the
act to which he assist.
8-The notifications made by simple registered letter assumed to be made in the third
day after the registration or on the first working day following that, when that day
not be useful.
9-Havendo Notice of receipt, the notification shall be deemed to be carried out on the date on which it
is signed.
10-A notification is presumed to be carried out in the person of the notifying itself when the
notice of receipt there has been signed by third party at the head office or domicile of the
recipient, identified by the distributor of the postal service, which anota the
constant elements of the identity card or other official document that
allow identification, under the warning that non-delivery by notifying soon
which possible, it makes him incur liability, in terms of the same terms as the
litigation of bad faith.
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11-Whenever the notification shows itself carried out in a diverse person of the notifying, it is
still sent, within five working days, letter registered by notifying,
communicating to you the content of the notification, the date and the way in which the act is
considers it carried out and the identity of the person on whom the notification was carried out.
12-The stakeholders who intervene in any counter-ordinational procedures
in the administrative supervisory authorities or environmental inspectorate communicate,
within ten working days, any change to its registered office or domicile.
13-A lack of receipt of any notice or communication, due to no
compliance with the provisions of the preceding paragraph, is not enforceable to the authorities
administrative, producing all legal effects, without prejudice to what is available,
as to the mandatory reporting and the terms why they must be made.
Article 43.
Notifications to the mandated
1-The notifications to the accused that has constituted mandatary are made in the person
of this and in your professional domicile.
2-When the notification is in view of the convening of witnesses or experts, in addition
of the notification of these is further notified the mandatary indicating to date, the place and
the reason for the comparency.
3-The notifications referred to in the preceding paragraph are made by registered letter.
4-The notifications referred to in the preceding paragraphs shall apply to the provisions of paragraphs 3, 4 and
5 of the previous article.
Chapter II
Processing
Article 44.
Self of news or participation
1-A The administrative authority raises the respective news self when, in the exercise
of their duties, check or substantiate, yet by non-immediate form,
any infringement of the standards referred to in the article first, which serves as a means of
proof of the verified occurrence.
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2-Regarding infractions of a counterordinate nature whose verification to
administrative authority has not personally proven, the same must
draw up an educated participation with the evidence that he or she possesses.
Article 45.
Elements of the auto news and participation
1-The news self or the participation referred to in the previous article mention
specifically:
a) The facts that constitute the infringement;
b) The day, time, place and the circumstances in which the offence was committed or
detected;
c) In the case of the offence being practiced by a natural person, the elements of
identification of the offender and his / her residence;
d) In the case of the offence being practiced by legal person or equated persons, their
identification elements, namely their registered office, identification and
residence of the respective managers, administrators and directors;
e) The identification and residence of witnesses;
f) Name, category and signature of the autuant or participant.
2-The entities that do not have the competence to proceed to the instruction of the process of
counter-ordering should refer the auto news or participation in the time frame of ten
working days to the competent administrative authority.
Article 46.
Identification by the administrative authorities
The competent administrative authorities may require the agent of a against-
ordering the respective identification under penalty of a crime of disobedience.
Article 47.
Instruction
1-The aututor or participant may not perform instructional functions on the same
process.
2-The deadline for the instruction is 180 days.
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3-If the instruction cannot be completed within the time limit indicated in the preceding paragraph, the
administrative authority may, under reasoned proposal of the instructor, extend
the deadline for a period up to 120 days.
Article 48.
Right of hearing and defence of the accused
1-The news self, after confirmed by the administrative authority and before it is
taken the final decision, is notified to the offender jointly with all the
elements necessary for this to get to know the totality of the aspects
relevant to the decision, in the matters of fact and law, as well as the meaning
likely from that, to within the time limit set by the administrative authority, at the earliest
ten working days, to pronounce in writing on what to offer you for convenient.
2-In the same time frame must, wanting, to submit written response, to piece together the documents
probators that they possess and burrow witnesses, up to the maximum of two per each
fact in a total of seven.
3-Consider unwritten the names of the witnesses who in the rol overtake the
legal number.
Article 49.
Comparisons of witnesses and experts
1-Witnesses and experts should be heard at the head office or in a delegation of the
administrative authority where the instruction of the process is carried out.
2-Witnesses can be heard by the police official who raised the auto
of news or the participation, to your application or at the request of the authority
administrative.
3-If for any reason the police authority is unable to hear the witnesses,
these are compulsorily heard by the competent administrative authority for
the statement of the process.
4-Witnesses and experts who do not appear in the designated day, time and place
for the due diligence of the process, nor justifying the lack in the day itself or the five
immediate working days, is enforced by the administrative authority a sanction
pecuniary up to 5 UC's.
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5-In the case where the witnesses and the experts do not compare to a second
convocation, after having failed at the first, the financial penalty to be applied by the
administrative authority, may vary between 5 and 10 UC's.
6-The payment is made within ten working days of the notification, under
penalty of proceeding to the execution, serving as an executive title the notification
carried out by the administrative authority.
Article 50.
Absence of the accused, the witnesses and experts
The lack of comparisons of the accused, of the witnesses and experts, duly notified
does not preclude the counterordinance process from following its terms.
Article 51.
Sending the autos to the Public Prosecutor's Office
1-Received the judicial challenge shall the administrative authority send the autos to the
Prosecutor's Office within twenty working days, which makes them present to the judge,
by validating this act as a charge.
2-When sending the autos may the administrative authority join allegations.
3-Up to the sending of the autos, may the administrative authority revoke, total or
partially, the decision of application of the fine, or ancillary sanction.
4-Without prejudice to the provisions of Article 70 of the Decree-Law No 433/82 of October 27,
the administrative authority may attach other elements or information that
consider relevant to the decision of the cause, as well as offer means of proof.
5-A dismissals of the prosecution by the prosecutor's office depends on the concordance of the
administrative authority.
Article 52.
Interest
At the end of the judicial process that you know of the challenge or the execution of the decision
delivered in the process of against ordering, and if this has been fully or partially
confirmed by the court, adding to the value of the fine in debt the payment of interest
counted from the date of notification of the decision by the administrative authority to the
argued, at the maximum rate set out in the tax law.
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Article 53.
Voluntary payment of the fine
1-Relatively to light and serious counterorders, as well as counter-ordering
very serious practiced with negligence, the accused can proceed to payment
volunteer of the fine within ten working days, except in cases where there is no
cessation of illicit activity.
2-If the offence consists of the lack of delivery of documents or the omission of
compulsory communications, voluntary payment of the fine is only possible if the
argued to sanctiate the lack in the same term.
3-Out of the cases of recidivism, on voluntary payment, the fine is settled by the
minimum value that corresponds to the type of offence practiced.
4-The voluntary payment of the fine amounts to conviction, not excluding the
possibility of application of ancillary sanctions.
5-The voluntary payment of the fine is admissible at any time in the process,
but always before the decision.
Article 54.
Participation of administrative authorities
1-The court communicates to the administrative authority the date of the hearing for wanting,
this power to participate in the hearing.
2-The court notifies the administrative authorities for these to bring to the hearing the
elements that repudive convenient for a correct decision of the case.
3-The court must communicate to the administrative authority that it has decided the proceedings to
dispatches, the sentence, as well as other final decisions.
Title III
Sumarest process
Article 55º
Sumarest process
1-When the reduced seriousness of the offence and the fault of the agent justifies it, it may
the administrative authority in the cases of classified light offences, and before
of formally accusing the accused, to notify him of the decision to apply a sanction.
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2-It may still be determined to the accused who adopt the behavior legally
required, within the time limit that the administrative authority shall fix it to the effect.
3-A The decision provided for in paragraph 1 is written and contains the identification of the accused, the
summary description of the imputed facts, the mention of the legal provisions violated and
ends with the admoestation or the indication of the concretely applied fine.
4-The accused is notified of the decision and informed that he / she shall be entitled to the right of the
refuse, within five working days, and of the intended consequence in the number
next.
5-A The refusal or silence of the accused within this period, the requirement of any
complimentary due diligence, the failure to comply with the provisions of paragraph 2 or the non
payment of the fine within ten working days after the notification referred to in the
previous number determine the immediate continuation of the countering process
ordering, by becoming without effect the decision referred to in paragraphs 1 a to 3.
6-Having the defendants proceeded to comply with the provisions of paragraph 2 and payment of the
cofine that has been applied to it, the decision becomes final, as a decision
condensation, and may not the fact again be appreciated as counter-ordinance.
7-A decision handed down in summary proceedings, according to the established in
previous figures, implies the loss of legitimacy of the accused to appeal
of that.
Title IV
Costs
Article 56.
General principles
1-The costs of the process revert to the administrative authority that applied the
sanction.
2-If the other way around does not result from this law, the expense in the counterordinance process
regulate themselves by the regulatory precepts of the expense in criminal proceedings.
3-The decisions of the administrative authorities that decide on the matter of the
process must set the amount of the costs and determine who should bear them.
4-The counterordinance process that runs before the administrative authorities do not
gives way to the payment of the rate of justice, nor the procuratorate.
5-A The suspension of the sanction provided for in Article 38 of this Act does not cover the costs.
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Article 57.
Charges
1-The costs comprise, inter alia, the following charges:
a) Transportation expenses and cost aids;
b) The reimbursement by postal franchises, telephone communications, telegraphs, by
telecopy and telematics;
c) The emoluments due to the experts;
d) Transportation and storage of seized goods;
e) The payment due to any entity for the cost of certirees, or others
elements of information and evidence.
f) The reimbursement with the acquisition of photographic, magnetic and audio supports,
necessary to obtain the proof.
g) Examinations, analyses, peritages or other actions that the administrative authority
have carried out or warrant to be carried out in the conduct of the inspection which led
to the counterordinance process.
2-The costs are borne by the accused in case of application of a fine, sanction
ancillary or cautionary measure, and of dismissal or rejection of the imputation.
3-In the remaining cases the expense is supported by the public purse.
Article 58.
Impugation of the expense
1-The defendants may, in the general terms, judicially challenge the decision of the authority
administrative on the expense, and the challenge being filed shall be filed within
ten working days, from the knowledge of the decision to be challenged.
2-From the decision of the court of first instance there is only recourse to the court of the
Relation when the amount exceeds the remit of that court.
Article 59.
Execution of costs
1-Elapsed the time of payment of the costs without their realization the authority
administrative sends in the following 20 working days the process to the Public Prosecutor's Office
for the establishment of the competent executive action.
2-Executive titles are the guides of expense passed by the authority
administrative.
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3-At the value of the costs in debt add interest of late to the established maximum rate
in the tax law from the date of the notification by the administrative authority.
Article 60.
Prescription of the expense credit
The expense credit prescribes within 5 years.
PART III
National enrollment
Article 61º
Principles
The enrollment must sue in the strict respect for the principles of legality,
veracity and security of the information collected.
Article 62.
Subject
1-The national enrolment has the object of the registration and treatment of the main sanctions
and ancillary, as well as of the precautionary measures implemented in proceedings of against-
ordering, and of the court decisions, related to those processes, after
traffic on trial.
2-Are still subject to registration to be suspended, the extension of the suspension and the
revocation of the decisions made in the counterordinance process.
3-The national enrolment is organized in computerized central file, of it owing
record:
a) The identification of the entity that delivered the decision;
b) The identification of the accused;
c) The date and form of the decision;
d) The content of the decision and the precepts applied;
e) The payment of the fine and the expense of the process;
f) The eventual execution of the fine and the expense of the process.
Article 63.
Entity responsible for the national enrollment
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1-A Inspectorate-General for Environment and Territory Planning is the body
responsible for the national enrollment.
2-It is up to the Inspectorate-General for the Environment and the Territory Planning to secure the
right of information and access to data by the respective holders, the correction
of data, as well as to ensure the legality of the consultation or communication of the
information.
3-Can still access the constant data from the enrollment:
a) Judicial magistrates and the Public Prosecutor's Office for the purpose of research
criminal and the instruction of criminal prosecutions;
b) The entities which, pursuant to the criminal procedural law, receive delegation to the
practice of acts of inquiry or instruction;
c) The official entities for the pursuit of public purposes to his post.
Article 64.
Individual registration
1-A The administrative authority shall arrange for an individual registration of the subjects
responsible for environmental offences, of which the measures must appear
cautionary and the main and ancillary sanctions applied in countering proceedings
ordering.
2-The records made by the administrative authority can be integrated and
treated in computer applications, in the terms and with the limits of the law on
protection of personal data.
3-The data set out in the records provided for in the preceding paragraph, as well as the data
documentary support constants, can be publicly disclosed in the cases of
very serious counterordinations and recidivism involving counter-ordering
graves.
Article 65.
Submission of data
All administrative authorities have an obligation to send to the Inspectorate General of the
Environment and of the Territory Planning in relation to the proceedings of against-
ordinance by you decided, within 30 working days, information where they build the
data referred to in Article 62 (3).
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Article 66.
Certificate of environmental enrollment
1-All entities that can access the data set out in the enrollment shall
carry out your request with the Inspectorate for the Environment and Planning
Territory that for the purpose issues the certificate of environmental enrollment where they build
all information in accordance with Article 62.
2-Except for the subjects covered by the point a) of Article 63 (3) by the
issuance of the environmental cadre certificate is due a fee whose amount is
fixed and annually reviewed by the Minister's office that tutele the Inspectorate-General of the
Environment and Territory Planning.
Article 67.
Final cancellation
They are cancelled automatically, and irrevocably, in the environmental cadre all
the data:
a) With existence more than five years relating to serious offences and much
graves;
b) With existence more than three years relating to light offences.
PART IV
Environmental Intervention Fund
Article 68.
Creation
1-The Environmental Intervention Fund, hereinafter referred to as the Fund, is created.
2-The regulation of the Fund shall be instituted by decree-law, to be approved within the period of
120 days.
Article 69.
Objectives
The Fund raises part of the revenue from the fines imposed, in the terms
defined in Article 72, which is intended to prevent and repair damage resulting from
injurial activities for the environment, particularly in cases where those responsible
may not be able to ressarct them in good time.
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PART V
Final provisions
Article 70º
Generic competence of the Inspector General for the Environment and Planning
Territory
1-Without prejudice to the competence conferred by law to any administrative authority
for the establishment and decision of the counterordinance processes, the Inspector General
of the Environment and Territory Planning is always competent for the same
effects on those processes.
2-The Inspector General of the Environment and Territory Planning is still competent
for the establishment and decision of counterordinance processes whose illicit yet
of a wider scope enquadre environmental components.
3-The Minister responsible for the area of the environment may determine, whenever the
public interest justifying it, which the Inspectorate-General for the Environment and the
Spatial planning avoour the environmental counterordinance processes that
are to find themselves under way in any services of the Ministry concerned.
4-A avocation predicted in the preceding paragraph implies the transfer of the process to the
Inspectorate-General for Environment and Territory Planning for the purpose of
instruction and decision, without prejudice to the duty of cooperation that continues to focus
about the initially competent service.
Article 71.
Update of fines
The minimum and maximum amounts of the fines set out in this diploma are
updated annually by decree-law, not the value of the update
surpass the value of inflation verified in the previous year.
Article 72º.
Fate of fines
1-Regardless of the phase in which it becomes final or transite on trial to
condensate decision, the product of the fines imposed under this Act is
reparty as follows:
a) 50% for the Environmental Intervention Fund;
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b) 25% for the authority that applies it;
c) 15% for the autuent entity;
d) 10% for the State.
2-As long as the Decree-Law referred to in Article 68 (2) is not entered into force
of the fines attributable to the Fund is still revenue of the State.
Article 73.
Administrative authority
For the purposes of this diploma, the entire administrative authority shall be deemed to be
body to whom it legally commiserates the introduction, instruction and or application of the
sanctions of counter-ordering processes in environmental matters.
Article 74.
Reformatio in pejus
It is not applicable to the counter-ordering processes instituted and decided in the terms
of this law the prohibition of reformatio in pejus, and this information must appear on all
the final decisions that admit to challenge or appeal.
Article 75.
Safeguarding of the regime of counter-ordinations
in the scope of the marine environment
This Law shall be without prejudice to the provisions of the regime of counter-ordinations within the framework of
pollution of the marine environment in maritime spaces under national jurisdiction, approved
by Decree-Law No. 235/2000 of September 26.
Article 76.
Transitional arrangement
The provisions of this Law referring to fines and their respective values are only
applicable from the publication of a diploma that, by changing the current legislation on
environmental matter, proceed to the classification of the counterordinations there typified.
