Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities : Portugal.
Date: 2025-04-09
Institutions: Directorate-General for Environment
Subjects: EU environmental policy, Portugal, cost of pollution, directive (EU), environmental liability, environmental monitoring, polluter pays principle, prevention of pollution

Portugal 

Facilitating enforcement of the 
Environmental Liability Directive 
(ELD) by competent authorities 

No 07.0203/2020/834494/SER/ENV.E.4 

31 December 2021 

Prepared by: 

Valerie Fogleman, Stevens & Bolton LLP, 

Cardiff University School of Law and Politics

Disclaimer: The information and views set out in this report are those of the author and do not 
necessarily reflect the official opinion of the Commission. The Commission does not guarantee 
the accuracy of the data included in this study. Neither the Commission nor any person acting 
on  the  Commission’s  behalf  may  be  held  responsible  for  the  use  which  may  be  made  of  the 
information contained therein. 

EUROPEAN COMMISSION 

Directorate-General for Environment 
Directorate E – Implementation and Support to Member States 
Unit 4 – Compliance and Better Regulation
Contact: Olga Kurpisz 
E-mail:  Olga.KURPISZ@ec.europa.eu

European Commission 
B-1049 Brussels

Luxembourg: Publications Office of the European Union, 2025 

© European Union, 2025 

PDF 

ISBN 978-92-76-56287-0 

doi:10.2779/490608 

KH-09-22-441-EN-N 

 
Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

TABLE OF CONTENTS

1
2
2.1
2.2
2.3
2.4
2.5
2.6
2.7

2.8

2.9

3
3.1
3.2
3.3
3.4

3.5

4
4.1
4.2
4.3
5
5.1
5.2
5.3
5.4

Extension of definition of operators 
Application of strict liability beyond annex III activities 

Additional responsible parties (secondary liability) 
Joint and several or proportionate liability 
Extension to national nature conservation legislation 
Permit defence 
State-of-the-art defence 
Right to submit comments on an imminent threat of environmental damage 
Spreading of sewage sludge for agricultural purposes 

INTRODUCTION 
NATIONAL ELD LEGISLATION 
LEGISLATION AND GUIDANCE 
EFFECTIVE DATE 
COMPETENT AUTHORITY(IES) 
LAND DAMAGE 
WATER DAMAGE 
BIODIVERSITY DAMAGE 
OPTIONAL PROVISIONS 
2.7.1
2.7.2
2.7.3
2.7.4
2.7.5
2.7.6
2.7.7
MORE STRINGENT PROVISIONS 
2.8.1
2.8.2
IMPLEMENTATION AND ENFORCEMENT 
2.9.1
2.9.2
2.9.3
2.9.4
INTEGRATED POLLUTION PREVENTION AND CONTROL LEGISLATION 
LEGISLATIVE PROVISIONS 
COMPETENT AUTHORITY(IES) 
REQUIREMENTS SPECIFIED BY THE INDUSTRIAL EMISSIONS DIRECTIVE 
APPLICATION  OF 
REQUIREMENTS 
ADDITIONAL  PREVENTIVE  AND  REMEDIATION  REQUIREMENTS 
LEGISLATION 
WASTE MANAGEMENT LEGISLATION 
LEGISLATIVE PROVISIONS 
COMPETENT AUTHORITY(IES) 
PREVENTION AND REMEDIATION OF ENVIRONMENTAL DAMAGE 
LEGISLATION FOR THE PREVENTION AND REMEDIATION OF LAND DAMAGE 
LEGISLATIVE PROVISIONS 
RETROACTIVE, RETROSPECTIVE AND/OR PROSPECTIVE APPLICATION 
COMPETENT AUTHORITY(IES) 
LIABILITY FOR PREVENTING AND REMEDIATING ENVIRONMENTAL DAMAGE 
5.4.1
5.4.2
5.4.3

3
3
3
4
4
4
4
4
4
4
4
5
5
5
5
5
5
5
5
5
5
6
6
6
6
6
6
6
INDUSTRIAL  EMISSIONS  DIRECTIVE 
7
IN  NATIONAL 
7
7
8
8
8
9
9
9
9
9
9
9
9

Preventive measures 
Immediate remedial actions 
Notifications 
Remedial measures 

Liable persons 
Implementation and enforcement 
Standard of liability 

IPPC  BEYOND 

1 

Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

6
6.1
6.2
6.3
6.4

7

7.1
7.2
7.3
7.4

Scope of liability 
Threshold 
Remediation measures and standard 
Defences 
Exclusions 
Notifications 
Public participation 

Liable persons 
Implementation and enforcement 
Standard of liability 
Scope of liability 
Threshold 
Remediation measures and standard 
Defences 
Exclusions 
Notifications 
Public participation 

9
5.4.4
9
5.4.5
9
5.4.6
10
5.4.7
10
5.4.8
10
5.4.9
10
5.4.10
10
LEGISLATION FOR THE PREVENTION AND REMEDIATION OF WATER DAMAGE 
10
LEGISLATIVE PROVISIONS 
10
RETROACTIVE, RETROSPECTIVE AND/OR PROSPECTIVE APPLICATION 
10
COMPETENT AUTHORITY(IES) 
10
LIABILITY FOR PREVENTING AND REMEDIATING ENVIRONMENTAL DAMAGE 
10
6.4.1
10
6.4.2
11
6.4.3
11
6.4.4
11
6.4.5
11
6.4.6
11
6.4.7
11
6.4.8
11
6.4.9
6.4.10
11
LEGISLATION  FOR  THE  PREVENTION  AND  REMEDIATION  OF  BIODIVERSITY 
11
DAMAGE 
11
LEGISLATIVE PROVISIONS 
12
RETROACTIVE, RETROSPECTIVE AND/OR PROSPECTIVE APPLICATION 
12
COMPETENT AUTHORITY(IES) 
12
LIABILITY FOR PREVENTING AND REMEDIATING ENVIRONMENTAL DAMAGE 
12
7.4.1
12
7.4.2
12
7.4.3
12
7.4.4
12
7.4.5
13
7.4.6
13
7.4.7
13
7.4.8
13
7.4.9
13
7.4.10
13
NUMBER AND TYPES OF ELD OCCURRENCES 
15
NUMBER AND TYPES OF OTHER ENVIRONMENTAL DAMAGE OCCURRENCES 
15
CONSULTATION BETWEEN COMPETENT AUTHORITIES 
15
SCREENING POTENTIAL ELD OCCURRENCES 
15
LEVEL OF ENFORCEMENT 
16
COMPARISON 
18

Liable persons 
Implementation and enforcement 
Standard of liability 
Scope of liability 
Threshold 
Remediation measures and standard 
Defences 
Exclusions 
Notifications 
Public participation 

8
9
10
11
12
13
BIBLIOGRAPHY 

2 

Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

1 

INTRODUCTION 

Between 1 August 2008, when the ELD was transposed into Portuguese law, and the end of 2020, 
there were 21 ELD occurrences involving an imminent threat of environmental damage in Portugal; 
seven involved damage to land, 13 involved damage to land and water, and one involved damage to 
water. During the same period, there were two ELD occurrences involving environmental damage; 
one involved damage to land, and one involved damage to land and water. 

There were no ELD occurrences that involved an imminent threat of, or actual, damage to protected 
species and habitats.1

2 

NATIONAL ELD LEGISLATION  

2.1  Legislation and guidance 

Decree-Law No 147/2008, of 29 July (Decreto-Lei n.º 147/2008, de 29 de julho), as amended (DL 
147/2008),2 implements the ELD in Portugal. 

The  Portuguese  Environment  Agency  (Agência  Portuguesa  do  Ambiente;  APA)  has  issued  the 
following technical guidance documents on the ELD: 

 Agência  Portuguesa  do  Ambiente,  ‘Guia  para  a  Avaliação  de  Ameaça  Iminente  e  Dano 

Ambiental – Responsabilidade Ambiental’ (2011) (DL 147/2008 Guidance);3 and 

  Agência  Portuguesa  do  Ambiente,  ‘Regime  Jurídico  da  responsabilidade  por  danos 
Ambientais – Prevenção e Remediação de Danos Ambientais – Manual do Operador’ (2016) 
(‘Prevention and remediation of environmental damage – Operator Support Manual)’ (August 
2016).4

1 Milieu Consulting, Deloitte and Bilbomática, ‘Implementation of the Environmental Liability Directive: 
Portugal – Country Fiche 2019’ (updated September 2020), 12-14; 
https://ec.europa.eu/environment/legal/liability/index.htm (scroll down ‘ELD Country Fiches’) (Country 
Fiche); COWI, Prospect, Justice and Environment, ‘Country Reports, Improving implementation and the 
evidence base for the ELD’, 473-474; available at https://ec.europa.eu/environment/legal/liability/ (scroll 
down to ‘country reports’) (Country Report). The following description of national ELD legislation and 
national liability legislation for preventing and remediating land, water and biodiversity damage updates 
and expands applicable text in the Member State report for Portugal in Bio Intelligence Service and 
Stevens & Bolton LLP, ‘Implementation Challenges and Obstacles of the Environmental Liability 
Directive’, Annex – Part A: Legal analysis of the national transposing legislation, Portugal (16 May 2013), 
265; see http://ec.europa.eu/environment/legal/liability/ (scroll down to ‘Study on ELD implementation’).    
2 Decreto-Lei n.º 147/2008 de 29 de julho (consolidated version); https://dre.pt/web/guest/legislacao-
consolidada/-/lc/34503075/view?p_p_state=maximized (in Portuguese) 
3 Agência Portuguesa do Ambiente, Ministério da Agricultura, do Mar, do Ambiente e do Ordenamento do 
Território, ‘Guia para a Avaliação de Ameaça Iminente e Dano Ambiental Responsabilidade Ambiental’; 
https://ec.europa.eu/environment/legal/liability/eld_guidance.htm (scroll down to ‘National ELD guidance 
documents’ and then ‘Portugal’). An English unofficial translation entitled ‘Guide for the Assessment of 
Imminent Threats and Environmental Damages; Environmental Liability’ is also available from the same 
url (scroll down to ‘National ELD guidance documents’ and then ‘Portuguese Guide in English’) 
4 Agência Portuguesa do Ambiente, ‘Regime Jurídico da Responsabilidade por Danos Ambientais – 
Prevenção e Remediação de Danos Ambientais – Manual do Operador’; 
https://sniambgeoviewer.apambiente.pt/GeoDocs/geoportaldocs/solos/ManualOperadorPT.pdf (in 
Portuguese)  

3 

Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

2.2  Effective date 

The effective date for DL 147/2008 is 1 August 2008 (DL 147/2008, articles 35, 37). 

2.3  Competent authority(ies) 

The competent authority for implementing DL 147/2008 is the APA. 

The  General  Inspectorate  for  Agriculture,  Sea,  Environment  and  Spatial  Planning  (Inspeção-Geral 
da  Agricultura,  do  Mar,  do  Ambiente  e  do  Ordenamento  do  Território;  IGAMAOT)  verifies 
compliance with DL 147/2008, together with the Nature and Environment Protection Service of the 
Republican National Guard (Serviço de Proteção da Natureza e do Ambiente; SEPNA). 

2.4  Land damage  

The  definition  of  land  damage  in  article  11(1)(e)(iii)  of  DL  147/2008  is  basically  the  same  as  the 
definition  in  article  2(1)(c)  of  the  ELD.  The  DL  147/2008  Guidance  includes  a  discussion  of  the 
definitions.5

2.5  Water damage  

The  definition  of  water  damage  in  article  11(1)(e)(ii)  of  DL  147/2008  is  basically  the  same  as  the 
definition  in  article  2(1)(b)  of  the  ELD.  The  DL  147/2008  Guidance  includes  a  discussion  of  the 
definitions.6

2.6  Biodiversity damage 

The definitions of damage to protected species and natural habitats under DL 147/2008, including 
article 11(1)(e)(i), are basically the same as the definitions in the ELD, including article 2(1)(a). The 
DL 147/2008 Guidance includes a discussion of the definitions.7

2.7  Optional provisions  

2.7.1  Additional responsible parties (secondary liability) 

Portugal has not specified any additional responsible parties under DL 147/2008. 

2.7.2  Joint and several or proportionate liability 

If more than one person causes the same environmental damage, joint and several liability applies 
even if one or more of them is at fault. Persons subject to such joint and several liability have a right 
of  contribution  against  other  liable  persons  (DL  147/2008,  article  4(1)).  If  liability  falls  on  several 
people  who  are  at  fault,  the  right  of  redress  between  them  is  exercised  to  the  extent  of  their 
respective  responsibilities  and  the  consequences  that  arise  from  them,  assuming  that  their 
responsibilities  are  equal  (DL  147/2008,  article  4(3)).  If  it  is  not  possible  to  identify  the  degree  of 
participation of each of the liable persons, it is assumed that liability is shared equally between them 
(DL 147/2008, article 4(2)). 

5 DL 147/2008 Guidance section 7.4, pages 47-57 
6 Ibid section 7.3, pages 35-47 
7 Ibid section 7.2, pages 22-35 

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Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

If a liable person is a legal person, liability between its directors, managers and executives is joint 
and  several  (DL  147/2008,  article  3(1)).  A  parent  or  controlling  company  in  a  group  or  control 
relationship of commercial companies is liable if there is an abuse of legal personality or breach of 
law (DL 147/2008, article 3(2)).  

2.7.3  Extension to national nature conservation legislation 

DL 147/2008 extends liability for biodiversity damage under the ELD to national nature conservation 
legislation (see DL 147/2008 Guidance, articles 7.2.2, pages 22-24). 

2.7.4  Permit defence 

Portugal has adopted the permit defence (DL 147/2008, article 20(3)). 

2.7.5  State-of-the-art defence 

Portugal has adopted the state-of-the-art defence (DL 147/2008, article 20(3)). 

2.7.6  Right to submit comments on an imminent threat of environmental damage 

Portugal  has  extended  the  right  to  submit  requests  for  action  to  competent  authorities  to  an 
imminent threat of environmental damage (article 18(1)). 

2.7.7  Spreading of sewage sludge for agricultural purposes 

DL 147/2008 exempts the spreading of sewage sludge from strict liability under annex III provided 
the sewage sludge is ‘from urban waste water treatment plants, treated to an approved standard, for 
agricultural purposes, licensed under Decree-Law No 276/2009, of 2 October’ (DL 147/2008, annex 
III, item 2). 

2.8  More stringent provisions 

2.8.1  Extension of definition of operators  

Portugal  has  not  extended  the  definition  of  an  operator  to  any  other  persons.  The  definition  of  an 
operator in article 11(1)(l) of DL 147/2008 is basically the same as the definition in article 2(6) of DL 
147/2008. 

2.8.2  Application of strict liability beyond annex III activities 

DL  147/2008  does  not  extend  strict  liability  beyond  activities  listed  in  annex  III.  Article  8  of  DL 
147/2008 states that non-annex III operators are liable only if they are at fault. 

2.9 

Implementation and enforcement 

2.9.1  Preventive measures 

Articles 14(1) and 14(2) of DL 147/2008 set out preventive measures, specifying that these include 
the prevention of environmental damage and the prevention of further environmental damage. The 
measures are basically equivalent to those in articles 5(1) and 6(1) of the ELD. 

5 

Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

2.9.2 

Immediate remedial actions 

Article 15(1)(b) of DL 147/2008 sets out immediate remedial actions that are basically equivalent to 
those in article 6(1) of the ELD.  

2.9.3  Notifications 

The notification requirement in article 14(4) of DL 147/2008 for an imminent threat of environmental 
damage is basically the same as the requirement in article 5(2) of the ELD. 

The  notification  requirement  in  article  15(1)(a)  for  environmental  damage  is  basically  the  same  as 
the  requirement  in  article  6(1)  of  the  ELD  but  is more  precise.  Instead  of  stating  that  the  operator 
must  notify  the  competent  authority  ‘without  delay’,  it  states  that  the  operator  must  notify  the 
competent  authority  ‘within  a  maximum  period  of  twenty-four  hours,  of  all  relevant  facts  of  [an 
occurrence of environmental damage and must] keep the information provided up-to-date’. 

2.9.4  Remedial measures 

Articles 15(1)(c) and 16 set out remedial measures that are basically equivalent to those in articles 
6(1)(b) and 7 of the ELD, with the addition of a time limit of 10 days from the date that environmental 
damage  occurs  for  the  operator  that  caused  the  damage  to  submit  a  proposal  to  the  competent 
authority  for  remedial  measures  unless  the  competent  authority  has  already  specified  or 
implemented such measures. 

3 

INTEGRATED POLLUTION PREVENTION AND CONTROL LEGISLATION 

3.1  Legislative provisions 

The Industrial Emissions Directive (2010/75/EU; IED) is implemented in Portugal by Decree-Law No 
127/2013, of 30 August (Decreto-Lei n.º 127/2013, de 30 de agosto), as amended.8

3.2  Competent authority(ies) 

The  competent  authorities  for  DL  127/2013  are  the  APA  for  mainland  Portugal,  the  Regional 
Directorate for the Environment in the Autonomous Region of Azores, and the Regional Directorate 
for Spatial Planning and Environment in the Autonomous Region of Madeira. 

3.3  Requirements specified by the Industrial Emissions Directive 

Holders of permits (operators) of installations subject to the IED must do the following: 





inform the competent authority ‘immediately’ in the event of any incident or accident that 
significantly affects the environment;  

take measures to limit the environmental consequences of the incident or accident and 
to prevent further possible incidents or accidents ‘immediately’;  

8 Decreto-Lei n.º 127/2013, de 30 de agosto; https://dre.pt/pesquisa/-/search/499546/details/maximized
(in Portuguese) 

6 

Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 





take any appropriate complementary measures considered necessary by the competent 
authority to limit environmental consequences and prevent further possible incidents or 
accidents; and 

return  the  site  of  the  installation  to  a  ‘satisfactory  state’  when  the  permit  for  the 
installation  is  surrendered,  by  removing,  controlling,  containing  or  reducing  soil  and/or 
groundwater pollution caused by any hazardous substances used or generated by the 
operator. 

Liability is strict and is channelled to the operator. No defences or exclusions apply. The measures 
and standard of remediation for the prevention and remediation of soil and groundwater pollution are 
the removal, control, containment or reduction of hazardous substances (very broadly defined) used 
or generated at an installation.  

Whilst  article  24  of  the  IED  sets  out  broad  public  participation  and  access  to  justice  requirements 
concerning  the  permit  procedure,  there  are  no  public  participation  requirements  in  respect  of 
whether an installation is causing environmental damage, as in the ELD. 

3.4  Application of IPPC beyond Industrial Emissions Directive requirements 

Decree-Law  No  75/2015,  of  11  May  (Decreto-Lei  n.º  75/2015)  established  a  Single  Environment 
Licensing regime (Licenciamento Único de Ambiente; LUA), which aims to simplify the procedures of 
environmental  licensing  regimes  by  regulating  such  procedures  with  the  issuance  of  the  Single 
Environmental Title (Título Único Ambiental; TUA).  

If the operations involve waste management, an operating licence (licença de exploração) issued by 
the  Regional  Co-ordination  and  Development  Committees  (Comissão  de  Coordenação  e 
Desenvolvimento Regional; CCDR) is required. This licence is integrated into the TUA. 

If the operations involve the use of water resources, a water use licence, concession or authorisation 
(licença de utilização de recursos hídricos) issued by the APA is required. This licence is integrated 
into the TUA.9

3.5  Additional preventive and remediation requirements in national legislation  

DL  127/2013  does  not  include  any  additional  requirements  to  prevent  or  remediate  environmental 
damage other than those in the IED. 

4  WASTE MANAGEMENT LEGISLATION 

Waste  producers  and  waste  holders  under  the  Waste  Framework  Directive  (2008/98/EU,  as 
amended  by  Directive  (EU)  2018/851)  are  responsible  for  remediating  damage  caused  by  their 
waste activities if those activities contribute to the risk of such damage.  

9 See Manuel Gouveia Pereira, ‘Environmental law and practice in Portugal: overview’ (Thomson Reuters 
Practical Law, 1 June 2020); https://uk.practicallaw.thomsonreuters.com/3-500-
2889?transitionType=Default&contextData=(sc.Default)&firstPage=true

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Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

4.1  Legislative provisions 

Annex I of Decree-Law No 102-D/2020, of 10 December (Anexo I do Decreto-Lei n.º 102-D/2020, de 
10  de  dezembro)  (Regime  Geral  da  Gestão  de  Resíduos),  as  amended10  is  the  main  waste 
management legislation in Portugal. 

4.2  Competent authority(ies) 

The APA and the CCDR are the national and regional competent authorities for waste, respectively. 

4.3  Prevention and remediation of environmental damage 

The responsibilities of a waste producer and a waste holder cease when the waste is transferred to 
an authorised waste treatment or other waste management operator. 

Soil remediation operations are licensed by DL 102-D/2020.  

In the event of an imminent threat of, or actual, environmental damage, the competent authority may 
require the operator to take necessary remedial measures or, if the severity and consequences of 
the damage require it, carry out the measures itself at the expense of the responsible operator. 

In this respect, the APA issued the following technical guides11 and guidance documents12 in respect 
of contamination prevention and soil remediation: 

  Technical Guide – Reference Values to Soil (Guia Técnico – Valores de Referência para o 

Solo); 

  Technical  Guide  –  Sampling  Plan  and  Soil  Monitoring  Plan  (Guia  Técnico  –  Plano  de 

Amostragem e Plano de Monitorização do Solo); 

  Technical  Guide  –  Risk  Analysis  and  risk  acceptability  criteria  (Guia  Técnico  –  Análise  de 

risco e critérios de aceitabilidade do risco);  

  Technical  Guide  –  Reference  Matrices  for  the  presentation  of  analytical  results  (Guia 

Técnico – Matrizes de referência para apresentação dos resultados analíticos); 

  Measures / Recommendations to be adopted in matters of licensing, monitoring of execution 
and inspection of urban operations – aspects of soil assessment and remediation (Medidas / 
Recomendações  a  adotar  em  matéria  de  licenciamento,  acompanhamento  da  execução, 
fiscalização  e  inspeção  de  operações  urbanísticas  –  vertentes  avaliação  e  remediação  do 
solo); 

10 Decreto-Lei n.º 102-D/2020, de 10 de dezembro (consolidated version); 
https://dre.pt/web/guest/legislacao-consolidada/-/lc/150908020/view  (in Portuguese) 
11 The technical guides are available on the APA’s website; https://apambiente.pt/avaliacao-e-gestao-
ambiental/guias-tecnicos-0 (in Portuguese) 
12 The guidance documents are available on the APA’s website; https://apambiente.pt/avaliacao-e-
gestao-ambiental/medidas-e-recomendacoes (in Portuguese) 

8 

Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

  Guidance Document – Soil remediation operations – Management of non-contaminated soils 
(Documento  de  Orientação  –  Operações  de  remediação  de  solos  –  Gestão  de  solos  não 
contaminados); and 

  Transfer of ownership rights for contaminated or potentially contaminated soil (Transmissão 

do direito de propriedade do solo contaminado ou potencialmente contaminado). 

5 

LEGISLATION FOR THE PREVENTION AND REMEDIATION OF LAND DAMAGE 

5.1  Legislative provisions 

Portugal  does  not  have  a  specific  regime  for  the  prevention  and  remediation  of  contaminated 
land/soil.  

As  indicated  in  section  4  above,  DL  102-D/2020  is  applied  to  the  licensing  of  soil  remediation 
operations. 

5.2  Retroactive, retrospective and/or prospective application 

See section 2.2 above. 

5.3  Competent authority(ies) 

See section 2.3 above. 

5.4  Liability for preventing and remediating environmental damage 

5.4.1  Liable persons 

See section 2 above. 

5.4.2 

Implementation and enforcement  

See section 2 above. 

5.4.3  Standard of liability 

See section 2.8.2 above. 

5.4.4  Scope of liability 

See section 2.7.2 above. 

5.4.5  Threshold  

See section 2 above. 

5.4.6  Remediation measures and standard 

See section 2 above. 

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Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

5.4.7  Defences  

See sections 2.7.4 and 2.7.5 above. 

5.4.8  Exclusions  

See section 2 above. 

5.4.9  Notifications 

See section 2.9.3 above. 

5.4.10  Public participation 

See section 2.7.6 above. 

6 

LEGISLATION FOR THE PREVENTION AND REMEDIATION OF WATER DAMAGE 

6.1  Legislative provisions 

Law No 58/2005, of 29 December, on water (Lei n.º 58/2005, de 29 de dezembro, Lei da Água), as 
amended,13 regulates water pollution and surface and ground water management. 

6.2  Retroactive, retrospective and/or prospective application 

Liability for remediating water damage is prospective only. 

6.3  Competent authority(ies) 

The competent authority for water in Portugal is the APA at national and regional level. 

6.4  Liability for preventing and remediating environmental damage 

6.4.1  Liable persons 

A  person  that  causes  the  unauthorised  deterioration  of  waters  in  the  national  hydraulic  domain  is 
liable for its remediation. 

6.4.2 

Implementation and enforcement 

Article  95(1)  of  Law  58/2005  states  that  persons  that  cause  an  unauthorised  deterioration  in  the 
condition of waters in the national hydraulic domain are responsible for paying the costs of restoring 
the waters to their condition before the damage occurred.  

The APA may order such persons to prepare a plan to remediate the waters for its approval. Such 
persons must then enter into a contract with the APA to carry out the plan, as approved by it (Law 
5/2005, article 96). 

13 Lei n.º 58/2005, de 29 de dezembro, Lei da Água; https://dre.pt/pesquisa/-
/search/469068/details/maximized (in Portuguese) 

10 

Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

6.4.3  Standard of liability 

The standard of liability for remediating damage to waters is strict liability. 

6.4.4  Scope of liability 

The scope of liability is joint and several liability. 

If a person that causes an unauthorised deterioration in waters is a legal person, liability between its 
directors, managers and executives is joint and several (Law 58/2005, article 95(2)).  

6.4.5  Threshold  

Hydrographic  Region  Management  Plans14  set  out  threshold  values  for  specified  pollutants  in 
groundwater.15

6.4.6  Remediation measures and standard 

The APA is responsible for defining the necessary plan for the recovery of the state of the waters, 
ability to carry out the works and other relevant measures, and judicially charge the liable person for 
the respective amount, through tax foreclosure (Law 58/2005, article 95(3)). 

6.4.7  Defences  

There are no defences to liability for remediating an unauthorised deterioration of waters. 

6.4.8  Exclusions 

There are no exclusions to liability for remediating an unauthorised deterioration of waters.

6.4.9  Notifications 

Article 94 of Law 58/2005 requires accidents that pose a risk of danger to public health and safety, 
property and water quality to be reported to the relevant competent authorities. 

6.4.10  Public participation 

There are no public participation requirements for the remediation of damaged waters.

7 

LEGISLATION FOR THE PREVENTION AND REMEDIATION OF BIODIVERSITY DAMAGE 

7.1  Legislative provisions 

Decree-Law  No  140/99,  of  24  April  transposed  the  Birds  and  Habitats  Directives  into  national  law 
(Decreto-Lei n.º 140/99, de 24 de abril), as amended.16

14 Hydrographic Region Management Plans are available on APA’s website; 
https://apambiente.pt/agua/planos-de-gestao-de-regiao-hidrografica (in Portuguese) 
15 See Mónica Carneiro Pacheco and Bernardo Cunha Ferreira, ‘Portugal’, in CMS Guide on Soil and 
Groundwater Contamination (14 April 2019); 
https://cms.law/en/media/international/files/publications/guides/soil-and-groundwater-contamination-guide

11 

Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

7.2  Retroactive, retrospective and/or prospective application 

Liability under DL 140/99 is prospective only. 

7.3  Competent authority(ies) 

The  competent  authorities  for  DL  140/99  are  the  Institute  for  Nature  Conservation  and  Forests 
(Instituto da Conservação da Natureza e das Florestas) and the regional environmental directorates 
in the Autonomous Regions of the Azores and Madeira. 

7.4  Liability for preventing and remediating environmental damage 

7.4.1  Liable persons 

A person that causes damage to protected species and natural habitats is liable for remediation to 
their condition before the damage. 

7.4.2 

Implementation and enforcement 

Article 25(1) of DL 140/99 requires a person that causes damage to protected species and natural 
habitats to restore them to their condition before the damage. The competent authority may specify 
the measures to be carried out to remediate damage including a deadline for carrying them out. 

If the person that is liable for carrying out the measures does not do so within specified time limits, 
the competent authority may carry them out or order the measures to be carried out on behalf of the 
liable  person  (DL  140/99,  article  25(2)).  If  the  liable  person  does  not  reimburse  the  competent 
authority  within  20  days  of  being  notified  of  the  costs,  the  tax  foreclosure  procedure  applies  to 
secure their reimbursement (DL 140/99, article 25(3)). 

7.4.3  Standard of liability 

The standard of liability is strict liability. 

7.4.4  Scope of liability 

DL 140/99 does not state whether liability is proportionate or joint and several. 

7.4.5  Threshold  

DL 140/99 does not specify a threshold for damage to protected species and natural habitats. The 
competent authorities assess whether any damage caused to protected species and natural habitats 
requires their remediation. 

16 Decreto-Lei n.º 140/99, de 24 de abril, na sua redação atual; https://dre.pt/pesquisa/-
/search/608175/details/maximized (in Portuguese). Executive Order No. 49/2005 of February 24 
incorporated new wording into Decree-Law No 140/99, of 24 April 

12 

Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

7.4.6  Remediation measures and standard 

The competent authority determines the measures that a person that causes damage to protected 
species and natural habitats must carry out to remediate them. The protected species and natural 
habitats must be remediated to their condition before they were damaged. 

7.4.7  Defences  

There are no defences to liability for causing damage to protected species and natural habitats. 

7.4.8  Exclusions  

There are no exclusions to liability for causing damage to protected species and natural habitats. 

7.4.9  Notifications 

DL  140/99  does  not  specify  any  requirements  to  notify  a  competent  authority  if  damage  to  a 
protected species or natural habitat is threatened or caused. 

7.4.10  Public participation 

DL  140/99  does  not  specify  any  public  participation  requirements  for  the  remediation  of  damaged 
protected species and natural habitats.       

8 

NUMBER AND TYPES OF ELD OCCURRENCES 

The report from Portugal to the European Commission under then article 18(1) of the ELD reported 
two  occurrences  of  environmental  damage  and  six  imminent  threats  of  environmental  damage  for 
the period to 30 April 2013. 

One occurrence of environmental damage involved the leak of petrol from an underground storage 
tank into the subsoil at a filling station. The operator, which had notified the competent authority of 
an imminent threat of environmental damage, carried out measures to prevent further environmental 
damage followed by remedial measures including post-remediation monitoring.17

The second occurrence of environmental damage involved a spill of a mixture of water and fuel oil 
from a basin in which waste from the separation of fuel oil was stored. The operator had notified the 
competent  authority  of  an 
threat  of  environmental  damage.  The  spill  affected 
approximately 13,000m² of land.18

imminent 

One of the six imminent threats involved land damage; four involved land and groundwater damage, 
and  one involved  surface  water  damage.  The  imminent  threats were  categorised as  follows  under 
annex III of the ELD (also annex III of DL 147/2008): 

 

two involved item 1 (IED); 

17 Portuguese Environment Agency, ‘Report on the experience gained in the application of Decree-Law 
No. 147/2008 of 29 July 2008’ (April 2013), 7-8; 
https://ec.europa.eu/environment/legal/liability/eld_guidance.htm (scroll down to Member State reports on 
the experience gained in the application of the Directive and click on Portugal) 
18 Ibid 8-9 

13 

Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

  one involved item 2 (waste management operations); and 

 

three  involved  item  7  (manufacture,  use,  storage,  processing,  filling,  release  into  the 
environment and on-site transport of dangerous substances and mixtures).19

The  Country  Fiche  states  that  there  were  a  further  10  imminent  threats  of  environmental  damage 
during the period of 2013 to 2019. Ten of these occurrences involved an imminent threat of damage 
to  land  and  water  and  one  involved  an  imminent  threat  of  damage  to  land.20  The  occurrences  all 
involved item 7 of annex III of the ELD.21

The Country Fiche did not report any further occurrences of actual environmental damage during the 
period  of  2013  to  2019.  Further,  it  did  not  report  any  imminent  threats,  or  actual,  environmental 
damage to protected species or natural habitats. 

The  Country  Report  states  that  in  2020,  40  occurrences  were  reported  to  the  APA,  of  which  four 
were  ELD  occurrences.  All  four  ELD  occurrences  concerned  an  imminent  threat  of  environmental 
damage to land; one was categorised as item 2 of annex III and three were categorised as item 7 of 
annex III.22

Year 

Imminent threat of 
environmental damage 

Environmental damage 

Land 

Land 
and 
water 

Water  Protected 
species 
and 
natural 
habitats 

Land 

Land and 
water 

Water 

Protected 
species and 
natural 
habitats 

1

0

0

0

1

1

0

0

0

1

0

0

0

0

0

0

0

0

0

0

2007-
2013 

2013-
2017 

2019 

2020 

Total 

2

0

1

4

7

4

6

3

0

13

1

0

0

0

1

19 Ibid 10-11 
20 Country Fiche 12-14 
21 Ibid 14 
22 Country Report 473-474 

0

0

0

0

0

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Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

9 

NUMBER AND TYPES OF OTHER ENVIRONMENTAL DAMAGE OCCURRENCES 

The Country Report states that since 2013, there has been a register of environmental occurrences 
reported  to  the  APA  by  operators  and  interested  parties,  including  those  that  were  not  under  the 
ELD, with an increase in communications in the years 2019 and 2020 with the implementation of the 
bilingual electronic platform for reporting imminent threats of, and actual, environmental damage.23

Environmental  damage  occurrences  that  were  not  determined  to  be  ELD  occurrences  were 
monitored  by  relevant  competent  authorities,  including  the  Administrations  of  the  Hydrographic 
Regions of the APA; the Republican National Guard’s Nature Protection Service; the Regional Co-
ordination  and  Development  Committees;  and  the  General  Inspectorate  for  Agriculture,  Sea, 
Environment and Spatial Planning.                                                                                                                             

10  CONSULTATION BETWEEN COMPETENT AUTHORITIES 

In case of an imminent threat of, or actual, environmental damage, the competent authority for DL 
147/2008 assesses and monitors the occurrence in close co-operation with the competent authority 
for water or protected species and natural habitats depending on the affected natural resources. 

11  SCREENING POTENTIAL ELD OCCURRENCES 

The APA established the Permanent Monitoring Commission for Environmental Liability (Comissão 
Permanente  de  Acompanhamento  para  a  Responsabilidade  Ambiental;  CPA-RA)  to  provide 
technical  support  for  assessing  potential  ELD  occurrences.  The  CPA-RA  consists  of  competent 
bodies in the sphere of water, soil, and protected species and natural habitats.24

12 

LEVEL OF ENFORCEMENT 

The table in section 8 above indicates the level of enforcement of DL 147/2008.  

The  level  of  awareness  of  the  ELD  and  national  ELD  legislation  by  the  general  public  in  Portugal 
was  described  in  a  March  2021  report  as  continuing  to  increase  due  among  other  things  to 
awareness-raising measures by the APA.25

Environmental NGOs have carried out measures to raise public awareness of the ELD and related 
environmental matters.26

23 Communication form available on APA’s website; https://ra.apambiente.pt/form The Country Reports 
are available on the APA’s website; ; https://apambiente.pt/avaliacao-e-gestao-ambiental/ocorrencias-
ambientais (in Portuguese) 
24 Portuguese Environment Agency, ‘Report on the experience gained in the application of Decree-Law 
No. 147/2008 of 29 July 2008 (April 2013), 13; 
https://ec.europa.eu/environment/legal/liability/eld_guidance.htm (scroll down to Member State reports on 
the experience gained in the application of the Directive and click on Portugal). 
25 Country Report 468  
26 Ibid 468-469 

15 

Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

13  COMPARISON  

Portugal  does  not  have  a  specific  regime  for  remediating  and  preventing  contaminated  land  (land 
damage).  Instead,  national  ELD  legislation  may  be  applied  as  well  as  waste  legislation  and 
environmental  permitting  legislation  when  an  environmental  damage  occurrence  affects  soil 
according to the provisions under each regime, which are complementary.  

The  APA  has  issued  technical  guides  and  guidance  documents  in  respect  of  contamination 
prevention and soil remediation. Among other things, these documents include reference values for 
soil,  procedures  concerning  sampling,  risk  assessment  on  human  health  and  the  environment, 
criteria for monitoring soil, and templates for the presentation of analytical data obtained in soil and 
groundwater  assessments.  The  documents  are  used  for  measures  concerning  the  prevention  and 
remediation  of  land/soil  contamination  as  well  as  for  national  ELD  legislation  concerning  land/soil 
damage (particularly the risk assessment guidance document). 

The  Guide  for  the  Assessment  of  Imminent  Threats  and  Environmental  Damage/Environmental 
Liability  (APA,  2011),  was  developed  with  the  purpose  of  providing  all  stakeholders  (operators, 
relevant  organisations  and  the  general  public)  with  information  on  the  application  of  national  ELD 
legislation,  seeking  to  clarify  its  scope  and  concepts  and  providing  assistance  in  some  technical 
aspects to support enforcement of the legislation. 

The remediation of damage to surface and ground waters is required under legislation that regulates 
water  pollution  and  surface  and  ground  water  management.  The  controls  on  the  uses  of  water 
include  licensing.  Thus,  a  person  that  causes  an  unauthorised  deterioration  in  the  conditions  of 
water bodies must pay to remediate the waters.  

Threshold values for specific pollutants in groundwater and surface water are defined in river basin 
management plans. If a person causes surface or ground water to be polluted, there is no need for 
the  competent  authority  to  determine  whether  a  threshold  is  breached;  the  person  is  liable  for 
remediating  the  waters.  Nonetheless,  the  person  must  provide  information  to  the  competent 
authority on the environmental damage and measures that will be taken. 

In  contrast,  liability  for  remediating  water  damage  does  not  arise  under  DL  147/2008  unless  the 
damage  reaches  or  exceeds  the  significance  criterion  under  that  legislation.  DL  147/2008  is 
considered to have a broader approach because whenever there is damage or an imminent threat of 
damage  to  the  environment  (which  includes  water),  necessary  preventive  measures  should  be 
applied in order to ensure that the environmental objectives of water bodies are achieved. 

DL 140/99 of April 24, as amended, states that when a breach of that legislation occurs, the person 
responsible for the breach is required to restore species and natural habitats protected by DL 140/99 
to their initial condition. National liability legislation does not, however, include complementary and 
compensatory remediation, as does DL 147/2008. 

there 

is  no  requirement 

Although 
to  make  a  significance 
assessment/determination of damage to protected species or natural habitats under national liability 
legislation, this is standard practice when it is considered necessary. Whilst the competent authority 
assesses whether the damage must be remediated, neither national liability legislation nor national 

the  competent  authority 

for 

16 

Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

ELD legislation specifies a significance criterion for damage to protected species or natural habitats 
above which remediation is required.

The Guide for the Assessment of Imminent Threats and Environmental Damage/Environmental 
Liability provides guidelines on relevant information regarding the baseline condition of protected 
species and natural habitats. The concept of conservation status of species and habitats, as well as 
the provisions rating it as favourable status, as well as the services provided by species and habitats 
for the public benefit at the time an occurrence occurs are, among other aspects, developed in this 
Guide. 

17 

Facilitating enforcement of the Environmental Liability Directive (ELD) by competent authorities 

BIBLIOGRAPHY 

Legislation 

Decreto-Lei n.º 140/99, de 24 de abril, na sua redação atual; https://dre.pt/pesquisa/-
/search/608175/details/maximized (in Portuguese) 

Lei n.º 58/2005, de 29 de dezembro, Lei da Água; https://dre.pt/pesquisa/-
/search/469068/details/maximized (in Portuguese) 

Decreto-Lei n.º 147/2008 de 29 de julho (consolidated version); https://dre.pt/web/guest/legislacao-
consolidada/-/lc/34503075/view?p_p_state=maximized (in Portuguese) 

Decreto-Lei n.º 127/2013, de 30 de agosto; https://dre.pt/pesquisa/-
/search/499546/details/maximized (in Portuguese) 

Decreto-Lei n.º 102-D/2020, de 10 de dezembro (consolidated version); 
https://dre.pt/web/guest/legislacao-consolidada/-/lc/150908020/view (in Portuguese) 

Guidance 

Agência Portuguesa do Ambiente, Ministério da Agricultura, do Mar, do Ambiente e do 
Ordenamento do Território, ‘Guia para a Avaliação de Ameaça Iminente e Dano Ambiental 
Responsabilidade Ambiental’; https://ec.europa.eu/environment/legal/liability/eld_guidance.htm

Agência Portuguesa do Ambiente, ‘Regime Jurídico da Responsabilidade por Danos Ambientais – 
Prevenção e Remediação de Danos Ambientais – Manual do Operador’; 
https://sniambgeoviewer.apambiente.pt/GeoDocs/geoportaldocs/solos/ManualOperadorPT.pdf (in 
Portuguese) 

Reports and articles 

Carneiro Pacheco, Mónica, and Bernardo Cunha Ferreira, ‘Portugal’, in CMS Guide on Soil and 
Groundwater Contamination (14 April 2019); 
https://cms.law/en/media/international/files/publications/guides/soil-and-groundwater-contamination-
guide

Gouveia Pereira, Manuel, ‘Environmental law and practice in Portugal: overview’ (Thomson Reuters 
Practical Law, 1 June 2020); https://uk.practicallaw.thomsonreuters.com/3-500-
2889?transitionType=Default&contextData=(sc.Default)&firstPage=true

Portuguese Environment Agency, ‘Report on the experience gained in the application of Decree-Law 
No. 147/2008 of 29 July 2008’ (April 2013), 7-8; 
https://ec.europa.eu/environment/legal/liability/eld_guidance.htm

18