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Annex I

Portugal

Improving financial security in the context of the

Environmental Liability Directive

No 07.0203/2018/789239/SER/ENV.E.4

May 2020

Final

Prepared by:

Valerie Fogleman, Stevens & Bolton LLP,

Cardiff University School of Law and Politics

Improving financial security in the context of the Environmental Liability Directive

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Disclaimer: The information and views set out in this assessment are those of the author(s) and do not necessarily reflect the official opinion of the European 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.

TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................................................................................... 3

1. INTRODUCTION ...................................................................................................................................................... 5

2. ENVIRONMENTAL INSURANCE MARKET ................................................................................................................. 6

2.1. Commercial insurers .................................................................................................................................. 7

2.2. Re/insurance pools .................................................................................................................................... 7

2.3. Mutuals ...................................................................................................................................................... 7

2.4. Other ......................................................................................................................................................... 7

3. VOLUNTARY INSURANCE POLICIES FOR ELD AND OTHER ENVIRONMENTAL LIABILITIES ....................................... 7

3.1. Environmental insurance policies .............................................................................................................. 7

3.2. Cover for ELD preventive costs .................................................................................................................. 8

3.3. Cover for ELD primary, complementary and compensatory costs ............................................................ 8

3.4. Cover for non-ELD liabilities ...................................................................................................................... 8

3.5. Nature of policies (liability only or liability and on-site remediation) ....................................................... 8

3.6. Description of policies ............................................................................................................................... 9

3.7. Model terms and conditions .................................................................................................................... 10

3.8. Date of general availability of environmental insurance policies ............................................................ 11

3.9. Environmental assessments and audits ................................................................................................... 11

3.10. Average premium .................................................................................................................................... 11

3.11. Average policy limit ................................................................................................................................. 11

3.12. Average deductible or self-insured retention .......................................................................................... 11

3.13. Average policy period .............................................................................................................................. 12

3.14. Sizes of typical insured businesses .......................................................................................................... 12

3.15. Industrial and commercial sectors that typically purchase policies ........................................................ 12

3.16. Industrial and commercial sectors with limited or no accessibility to policies ........................................ 12

3.17. Number and amount of claims ................................................................................................................ 12

3.18. Coverage litigation ................................................................................................................................... 13

3.19. Cover for ELD liabilities in general liability policies .................................................................................. 13

3.20. Cover for ELD liabilities in property policies ............................................................................................ 13

4. OTHER VOLUNTARY FINANCIAL SECURITY INSTRUMENTS AND MECHANISMS ................................................... 13

4.1. Type(s) ..................................................................................................................................................... 13

4.2. Availability ............................................................................................................................................... 13

5. MANDATORY FINANCIAL SECURITY FOR ELD LIABILITIES (ARTICLE 14(1)) ............................................................ 13

5.1. Competent authority(ies) ........................................................................................................................ 13

5.2. Legislative provisions ............................................................................................................................... 13

5.3. Environmental licence conditions ............................................................................................................ 16

5.4. Date of introduction ................................................................................................................................ 17

5.5. Effective date ........................................................................................................................................... 17

5.6. Key reasons for introduction ................................................................................................................... 17

5.7. Withdrawal of mandatory financial security ........................................................................................... 17

5.8. Guidance .................................................................................................................................................. 17

5.9. Operators subject to mandatory financial security ................................................................................. 18

5.10. Amounts and limits of mandatory financial security ............................................................................... 18

5.11. Growth of mandatory financial security .................................................................................................. 18

6. REGULATORY OVERSIGHT OF FINANCIAL SECURITY INSTRUMENTS AND MECHANISMS ..................................... 18

6.1. Review of financial security instruments or mechanisms ........................................................................ 18

6.2. Financial security instruments and mechanisms accepted...................................................................... 19

6.3. Financial security instruments and mechanisms not acceptable ............................................................ 21

6.4. Time of review ......................................................................................................................................... 21


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6.5. Regulatory costs of review ...................................................................................................................... 21

6.6. Requirements for operator to review ...................................................................................................... 21

7. ENFORCEMENT OF FINANCIAL SECURITY REQUIREMENTS .................................................................................. 21

8. EX POST ENVIRONMENTAL DAMAGE MANDATORY FINANCIAL SECURITY (ARTICLE 8(2)) ................................... 22

8.1. Date legislation or policy for mandatory financial security introduced ................................................... 22

8.2. Effective date for ex post mandatory financial security .......................................................................... 22



9. PROVIDERS OF MANDATORY FINANCIAL SECURITY INSTRUMENTS ..................................................................... 22

9.1. Insurers .................................................................................................................................................... 22

9.2. Banks and other financial institutions ..................................................................................................... 22

9.3. Sureties .................................................................................................................................................... 23

9.4. Providers outside Member State ............................................................................................................. 23

10. MEASURES TAKEN BY MEMBER STATE TO DEVELOP FINANCIAL SECURITY MARKETS ......................................... 23

11. EU ENVIRONMENTAL LEGISLATION WITH MANDATORY FINANCIAL SECURITY PROVISIONS ............................... 25

11.1. Landfill Directive ...................................................................................................................................... 25

11.2. Extractive Waste Directive ....................................................................................................................... 26

11.3. Carbon Capture and Storage Directive .................................................................................................... 27

12. EU RECOMMENDATION ON HYDRAULIC FRACTURING ........................................................................................ 28

12.1. Status ....................................................................................................................................................... 28


12.3. Financial security provisions .................................................................................................................... 28


12.5. Templates ................................................................................................................................................ 28


13. EU ENVIRONMENTAL LEGISLATION WITH NO MANDATORY FINANCIAL SECURITY PROVISIONS ......................... 29

13.1. Industrial Emissions Directive .................................................................................................................. 29

13.2. Seveso III Directive................................................................................................................................... 29

13.3. Other legislation ...................................................................................................................................... 30

14. MANDATORY FINANCIAL SECURITY FOR OFFSHORE OIL AND GAS OPERATIONS ................................................. 30


14.2. Status of offshore oil and gas operations ................................................................................................ 30

14.3. Requirements for financial security ......................................................................................................... 30

14.4. Requirement for financial security for ELD liabilities ............................................................................... 31

15. FAILURE OF FINANCIAL SECURITY ......................................................................................................................... 31

15.1. Inadequate level of financial security instrument or mechanism to pay claims ...................................... 31

15.2. Insolvency of operator leading to failure of financial security instrument or mechanism ...................... 31

15.3. Other ....................................................................................................................................................... 31

16. FUNDS ................................................................................................................................................................... 31

16.1. Name(s) ................................................................................................................................................... 31

16.2. Extension of existing fund to cover remedial costs under the ELD .......................................................... 32

16.3. Purpose .................................................................................................................................................... 32

16.4. Type ......................................................................................................................................................... 33

16.5. Source(s) of funding................................................................................................................................. 33

16.6. Number and amount of claims ................................................................................................................ 33

BIBLIOGRAPHY................................................................................................................................................................. 34


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1. INTRODUCTION

Financial security for preventing and remediating environmental damage in the form of environmental insurance is widely available in Portugal. Although its availability was mainly limited to multinational companies with sites and/or operations in other States as well as Portugal and large businesses with sites and/or operations only in Portugal before 2010, general availability began to increase after the introduction of mandatory financial security in 2010. Due to the introduction, insurers designed new stand-alone environmental insurance policies and adapted existing policies to meet mandatory financial security requirements for liabilities under the ELD, especially by adapting policies for large businesses to provide cover for small and medium sized businesses.

The limited availability of stand-alone environmental insurance policies before 2010 was due in large part to the lack of clarity in Portuguese legislation for environmental liability. As stated by the preamble to Decree Law No 147/2008, of 29 July (Decreto-Lei No 147/2008, de 29 de julho; DL 147/2008),1 which transposed the ELD into Portuguese law, the legal framework that existed prior to 1 August 2008 when DL 147/2008 entered into effect, was ‘difficult to implement in practice as a result, in particular, of a lack of clarity and consistency between the various legal rules’. The preamble further stated that DL 147/2008 aimed ‘to resolve the doubts and difficulties that surround the issue of environmental liability in the Portuguese legal system and which are necessary to achieve sustainable development’. Demand for the policies is now good.

Extensions to general liability policies to provide cover for ELD and other environmental liabilities are not generally available. They were available in the past, but their use has largely disappeared.

Environmental extensions to property policies are not generally available.

Portugal does not have a specific regime to remediate contaminated land. The Portuguese Environment Agency (Agência Portuguesa do Ambiente; APA) proposed a regime in September 2015 but this had not been enacted when this report was published. Decree-Law No 178/2006 of 5 September (Decreto-Lei No 178/2006, de 5 de setembro), as amended,2 the general waste management regime (Regime geral da gestão de resíduos) has been applied to the prevention and remediation of soil contamination.

DL 147/2008 transposed the ELD to impose civil liability as well as administrative liability for environmental damage; the only Member State to do so.3 Whilst civil liability is outside the scope of the ELD, its inclusion in DL 147/2008 together with the practical difficulties in respect of environmental liability legislation before its enactment means that insurance policies for Portuguese environmental liabilities tend to differ from those in some other Member States in that cover for ELD liabilities was not generally added to existing policies that provided cover for environmental liabilities under other legislation.

1 Decreto-Lei No 147/2008 de 29 de julho (consolidated version); https://dre.pt/web/guest/legislacao-consolidada/-/lc/34503075/view?p_p_state=maximized (in Portuguese)

2 Decreto-Lei No 178/2006, de 5 de setembro (consolidated version); https://dre.pt/web/guest/legislacao-consolidada/-/lc/34530275/view?p_p_state=maximized (in Portuguese)

3 See Bio Intelligence Service in collaboration with Stevens & Bolton LLP, ‘Implementation Challenges and Obstacles of the ELD, Annex – Part A: Legal analysis of the national transposing legislation’ (2013), 265-269 for a brief review of environmental liability legislation in Portugal when the ELD was transposed; https://ec.europa.eu/environment/archives/liability/eld/eldimplement/pdf/ELD%20implementation_Annex%20Part%20A.pdf

https://dre.pt/web/guest/legislacao-consolidada/-/lc/34503075/view?p_p_state=maximized




https://ec.europa.eu/environment/archives/liability/eld/eldimplement/pdf/ELD%20implementation_Annex%20Part%20A.pdf



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As indicated above, the Portuguese Government (República Portuguesa) introduced mandatory financial security (referred to as mandatory financial guarantees (garantia financeira obrigatória)) for ELD liabilities. Article 22 of DL 147/2008 requires operators of activities listed in annex III of DL 147/2008 (which equates to annex III of the ELD) to have financial security. Article 22 also stated that the Portuguese Government may issue an order to establish minimum limits for mandatory financial security. Article 34 states that mandatory financial security was required as from 1 January 2010.

In line with DL 147/2008, the APA required annex III operators to have mandatory financial security from 1 January 2010. On 1 March 2011, the Government issued Decree-Law No 29-A/2011, of 1 March (Decreto-Lei No 29-A/2011, de 1 de março),4 which revised article 22 of DL 147/2008 to state that the Government would issue an ordinance to set out the criteria for determining the minimum amounts of financial security.

Thus when the mandatory financial security system entered into force, there was a lack of criteria for determining the minimum amounts required by operators. In addition, insurers were receiving requests for quotations on a daily basis and ‘the few insurers that could offer suitable products did not have the capacity to respond’.5 Since that time, the APA has been very active in refining and publicising the mandatory financial security system for ELD liabilities. Among other things, it has issued guidance on its application and has carried out various initiatives to assist operators in complying with it (see section 10 below).

Portugal requires a person that holds a licence or concession under its regime for the use of water resources to have a guarantee for environmental recovery. The guarantee may be provided by a cash deposit, at the order of the competent authority, or by a bank guarantee. If the operator is also subject to the mandatory financial security system for ELD liabilities, an exemption applies upon confirmation by the competent water authority.

Operators of waste incineration and co-incineration plants are also required to have financial security for civil liabilities from their operations.

2. ENVIRONMENTAL INSURANCE MARKET

The environmental insurance market in Portugal is well developed. Stand-alone environmental insurance policies for ELD administrative liabilities, civil liabilities from environmental damage (also in DL 147/2008), and other types of cover began to become generally available after 2010 when Portugal introduced mandatory financial security for activities under all the legislation set out in annex III of DL 147/2008.

By 2016, stand-alone environmental insurance policies were offered, not only for small and medium sized enterprises as well as large companies, but had also become broader and more complex, including a larger number of optional insuring agreements in addition to the basic cover.6 Some policies limit cover for the costs of remediating on-site environmental damage to damage that begins and ends during a specified period of hours or days, that is, sudden and

4 Decreto-Lei No 29-A/2011, de 1 de março; https://dre.pt/pesquisa/-/search/144217/details/maximized (in Portuguese)

5 See Paula Rios and Ana Salgueiro, ‘Environmental Liability and financial guarantees: The Portuguese system and the Spanish example for other markets, Part 1’, Gerencia de Riesgos y Seguros, No 112 (2012), 12; http://www.mapfre.com/fundacion/html/revistas/gerencia/n112/docs/Estudio1-en.pdf

6 See ‘Seguradoras ajustam respostas à crescent consciencialização dos empresários’ (Cision, 15 July 2016); http://news.mapfre.pt/uploads/404/2016-07-15_OJE_65293999.pdf (in Portuguese)

https://dre.pt/pesquisa/-/search/144217/details/maximized

http://www.mapfre.com/fundacion/html/revistas/gerencia/n112/docs/Estudio1-en.pdf

http://news.mapfre.pt/uploads/404/2016-07-15_OJE_65293999.pdf


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accidental pollution incidents that take place within a specific time during the policy period. Some policies have sub-limits for the costs of remediating pollution.

The environmental insurance market has continued to grow since 2016 and includes a substantial number of national and international insurers that offer stand-alone environmental insurance policies in Portugal. Demand is good.

2.1. Commercial insurers

2.1.1. Number of insurers

All the major multinational insurers, as well as many national insurers, offer policies in Portugal for ELD and other environmental liabilities. A substantial number of the major multinational insurers have branches in Portugal.

2.1.2. New insurers entering the market since 2009

No data is available.

2.1.3. Existing insurers that introduced environmental insurance policies since 2009

No data is available.

2.2. Re/insurance pools

Portugal does not have a re/insurance pool.

2.2.1. Date of establishment

Not applicable

2.2.2. Descriptions of policies issued

Not applicable

2.3. Mutuals

No mutual in Portugal offers environmental insurance policies.

2.3.1. Date of establishment

Not applicable

2.3.2. Descriptions of policies issued

Not applicable

2.4. Other

There are no captives or other types of providers of environmental insurance policies in Portugal.

3. VOLUNTARY INSURANCE POLICIES FOR ELD AND OTHER ENVIRONMENTAL LIABILITIES

3.1. Environmental insurance policies

A wide range of stand-alone environmental insurance policies is available in Portugal. Many policies are underwritten with basic cover plus optional insuring agreements so that operators may select the insuring agreements they wish. Depending on the insurer, the basic cover is for


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ELD liabilities, both for remediating off-site and on-site environmental damage, third-party claims for bodily injury, property damage and economic loss, and related defence costs. The optional insuring agreements provide cover for claims for bodily injury and property damage, harm to employees for occupational accidents involving pollution, transportation, etc. (see section 3.6.3 below).7

3.2. Cover for ELD preventive costs

Stand-alone environmental insurance policies offered for risks in Portugal generally provide cover for the costs of preventive and emergency measures under the ELD. The scope of cover depends on the insurer(s) underwriting the policies. Some policies provide cover for a broad scope of preventive and emergency costs; other policies provide more restrictive cover for such costs.

3.3. Cover for ELD primary, complementary and compensatory costs

Most stand-alone environmental insurance policies offered for risks in Portugal provide cover for primary, complementary and compensatory costs for remediating damage to all natural resources under the ELD, that is, damage to soil/land, water, and protected species and natural habitats under the Birds Directive (2009/147/EC) and the Habitats Directive (92/43/EEC) (biodiversity damage).

3.4. Cover for non-ELD liabilities

Most stand-alone environmental insurance policies offered for risks in Portugal provide cover for costs arising from environmental damage under other environmental legislation as well as the ELD.

Due to the focus of Portuguese environmental liability legislation on pollution (contaminação) and the ELD, this is also the focus of the cover provided by the policies. Cover is also provided for the prevention and remediation of other types of environmental damage.

3.5. Nature of policies (liability only or liability and on-site remediation)

Virtually all stand-alone environmental insurance policies offered for risks in Portugal provide cover for the costs of remediating environmental damage under the ELD on an insured’s own site as well as third-party sites. The policies also provide cover for third-party claims for bodily injury, property damage and economic loss from environmental damage.

The policies do not provide cover for damage to on-site property in the form of buildings, other structures and equipment unless, under some policies, the damage results from carrying out remediation measures themselves.

7 See MAPFRE, ‘Seguro de Responsabilidade Ambiental’; https://www.mapfre.pt/seguros-pt/empresas/negocio/atividades-empresariais/stands-e-oficinas/responsabilidade-ambiental/coberturas.jsp (in Portuguese); AIG, ‘Seguro de Responsabilidade Ambiental: Porquê?’; http://www.groquifar.pt/divisao/documentos/da/aig-apresentacao-responsabilidade-ambiental-groquifar-fito.pdf (in Portuguese); Ageas Seguros, ‘Como protejo o ambiente e reduzo o impacto de imprevistos causados pela minha empresa?’; https://www.ageas.pt/empresas/seguros/oferta-especializada/ecosfera-seguro-ambiental (in Portuguese)

https://www.mapfre.pt/seguros-pt/empresas/negocio/atividades-empresariais/stands-e-oficinas/responsabilidade-ambiental/coberturas.jsp


http://www.groquifar.pt/divisao/documentos/da/aig-apresentacao-responsabilidade-ambiental-groquifar-fito.pdf


https://www.ageas.pt/empresas/seguros/oferta-especializada/ecosfera-seguro-ambiental



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3.6. Description of policies

3.6.1. Format

Stand-alone environmental insurance policies offered by national as well as multinational insurance companies for risks in Portugal generally have a basic cover section plus an optional section so that an insured may select the insuring agreement(s) it requires.

Most policies for operators of annex III activities include provisions to comply with the mandatory financial security system as part of their cover, rather than setting out this cover in a separate policy.

3.6.2. Claims made or occurrence based

Stand-alone environmental insurance policies for ELD and other environmental liabilities in Portugal are offered on a claims made and reported basis with an extension period. That is, the policies provide cover for claims that are made against the insured during the policy period and reported to insurers during the policy period or the extended reporting period.

There is necessarily an extended reporting period in environmental (and other) insurance policies due to article 139, entitled Period of cover (Período de cobertura), of the Portuguese Insurance Contracts Act (Regime jurídico do contrato de seguro).8 Article 139 provides as follows:

1. Unless otherwise agreed, the policy covers the insured’s liability for acts generating liability, having occurred during the policy period, including claims presented after the end of policy period.

2. Both parties may agree on clauses that limit the period of cover, considering, namely, the action committed, loss occurrence or claims made.

3. Whenever a claims made clause is in place, and unless otherwise established in the law or regulation, and the risk is not covered by a subsequent insurance contract, the liability insurance covers the payment of indemnities resulting from harmful events unknown by the parties and having occurred during the policy period, even if claimed in the year after the policy’s term.9

That is, the default position in Portugal is an occurrence based policy. Insurers can, however, offer a claims made policy. If the insurer does so and there is no subsequent policy, the claims made policy must provide an extension of one year of cover for harmful events unknown by the parties that occurred during the policy period.

In practice, insurers offer a longer period than the one year indicated in the Insurance Contracts Act, with two years being common.

3.6.3. Policies for operators

Insurers in Portugal, including multinational insurers with branches in Portugal, offer stand-alone environmental insurance policies to small and medium sized operators as well as large Portuguese based companies and multinational companies. Depending on the insurer, the policies include the following as basic cover:

8 Decreto-Lei No 72/2008, de 16 de abril (consolidated version); https://dre.pt/web/guest/legislacao-consolidada/-/lc/105326879/201704171114/exportPdf/normal/1/cacheLevelPage?_LegislacaoConsolidada_WAR_drefrontofficeportlet_rp=indice (in Portuguese)

9 Translation into English by Paula Rios, MDS Portugal, Lisbon

https://dre.pt/web/guest/legislacao-consolidada/-/lc/105326879/201704171114/exportPdf/normal/1/cacheLevelPage?_LegislacaoConsolidada_WAR_drefrontofficeportlet_rp=indice





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civil liabilities for environmental damage;

administrative liabilities of the insured, including cover for liabilities for primary, complementary and compensatory remediation under DL 147/2008;

emergency and preventive costs;

minimisation measures; and

defence costs.

Optional cover includes the following, again depending on individual insurers:

costs of remediating historic soil and groundwater pollution;

damage to property;

business interruption; and

transportation.

In addition to specimen wordings for each type of policy, national and multinational insurers have libraries of standard endorsements for each type of policy. They also draft manuscript endorsements to supplement the endorsements in their libraries to meet the needs of their insureds, as necessary.

Some policies include optional insuring agreements for damage from microbial matter including mould. In addition, as in other Member States, manuscript policies (that is, policies drafted for a single insured) are available for large and complex risks.

All stand-alone environmental insurance policies offered by multinational insurers to operators with sites and/or operations only in Portugal as well as sites and/or operations in Portugal and other States are not necessarily designed for Portuguese operators. Some policies are specifically designed to reflect – and provide cover for – the legal and licensing situation in Portugal; others are not.

3.6.4. Policies for contractors and others

Stand-alone environmental insurance policies that provide cover for ELD and other environmental liabilities are also available for contractors. The policies tend to provide similar types of cover as the policies for operators, as described in section 3.6.3 above, including liability for remediating environmental damage (including pollution) at sites at which the contractor is carrying out operations in addition to the insured contractor’s own site.

3.7. Model terms and conditions

3.7.1. Organisation issuing model terms and conditions

The Portuguese Association of Insurers (Associação Portuguesa de Seguradores; APS) has not published model terms and conditions for insurance policies for mandatory financial security for ELD or other environmental liabilities.

3.7.2. Description of model terms and conditions

Not applicable

3.7.3. Relationship between policies with model terms and conditions and environmental insurance policies

Not applicable


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3.8. Date of general availability of environmental insurance policies

Stand-alone environmental insurance policies for ELD liabilities began to be generally available after 2010 when insurers adapted their policies to provide cover to meet mandatory financial security requirements for ELD liabilities and also to adapt policies for large businesses for small and medium sized businesses.10

Some national and multinational insurers offered stand-alone environmental insurance policies for Portuguese risks before that time but they were not widely available, especially for small and medium sized businesses.

3.9. Environmental assessments and audits

A business that applies for an environmental insurance policy is not required to carry out an environmental assessment or audit of site(s) to be covered by the policy before the policy is placed. If the putative insured already has information on the environmental condition of site(s) to be insured, this information is provided to the insurer. The insurer then considers the information as part of the underwriting process.

Environmental insurers may also carry out technical site visits (that is, visits to review the site and any facilities including pollution-control equipment on the site) as part of the underwriting process although this is not a frequent occurrence. The vast majority, if not all, insurers in the Portuguese environmental insurance market require only that a putative insured complete a proposal form in addition to providing the above information.

If the insurance policy provides cover to satisfy mandatory financial security requirements for ELD liabilities, the operator may have carried out a risk assessment (see section 5.2.7 below).

Post-binding technical site visits may also be carried out by insurers.

3.10. Average premium

It is not possible to provide an average premium due to the diverse profile of insureds.

3.11. Average policy limit

In 2012, the average limit of an insurance policy that provides cover for ELD and other environmental risks was between EUR 250,000 and EUR 1,000,000.11

One ELD stakeholder stated that the average limit of such an insurance policy was approximately EUR 3,400,000, with a range from EUR 10,000 to EUR 25,000,000.

Another ELD stakeholder stated that the average policy limit for small to medium sized businesses was EUR 150,000; with an average policy limit for large companies of EUR 500,000,000.

3.12. Average deductible or self-insured retention

The average deductible/self-insured retention for a stand-alone environmental insurance policy is between EUR 15,000 and EUR 20,000.

10 See Sónia Bexiga, ‘RC Ambiental. Seguradoras respondem à crescente consciencialização’, O Jornal Económico (19 July 2016); https://jornaleconomico.sapo.pt/noticias/rc-ambiental-seguradoras-respondem-crescente-consciencializacao-61854 (in Portuguese)

11 See Paula Rios and Ana Salgueiro, ‘Environmental Liability and financial guarantees: The Portuguese system and the Spanish example for other markets, Part 1’, Gerencia de Riesgos y Seguros, No 112 (2012), 17; http://www.mapfre.com/fundacion/html/revistas/gerencia/n112/docs/Estudio1-en.pdf

https://jornaleconomico.sapo.pt/noticias/rc-ambiental-seguradoras-respondem-crescente-consciencializacao-61854




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The average deductible/self-insured retention for environmental insurance policies for small to medium sized companies is upward from EUR 15,000. The average for larger companies is upward from EUR 25,000.

3.13. Average policy period

The average policy period for a stand-alone insurance policy that provides cover for ELD liabilities is one year with an option to renew.

3.14. Sizes of typical insured businesses

Mainly medium and large sized businesses that carry out activities listed in annex III of DL 147/2008 purchase stand-alone environmental insurance policies in Portugal.

3.15. Industrial and commercial sectors that typically purchase policies

In 2012, approximately 40% of operators that purchased environmental insurance policies were in the waste management industry, 35% were in other types of industry, and 15% were municipalities.12

The types of industrial and commercial sectors that purchase environmental insurance policies has subsequently been influenced by the focus of inspections by competent authorities as well as claims. For example, petrol stations and vehicle repair facilities were the target of inspections from 2014. Also at that time, a substantial number of claims with high levels of loss were reported in the media.13 These factors led, in turn, to businesses in those sectors being more likely to purchase stand-alone environmental insurance policies.

Due to the continued effectiveness of the mandatory financial security system for annex III operators, operators in the sectors covered by them now purchase stand-alone environmental insurance policies as well as other industrial and commercial sectors.

3.16. Industrial and commercial sectors with limited or no accessibility to policies

Individual insurers determine which industrial and commercial sectors they are willing, or not willing, to offer policies to.

One ELD stakeholder stated that environmental insurance policies tended not to be offered to the mining sector.

3.17. Number and amount of claims

One of the largest brokers in Portugal reported that there were between one and five claims involving ELD liabilities per year for its clients, with an average amount of EUR 100,000 per claim. It also reported that most claims were for spillages of pollutants.

Another large broker in Portugal reported that the average amount for a claim was EUR 200,000, subject to a few exceptions.

An article, dated July 2016, referred to a substantial number of high loss claims.14 Additional information to confirm these claims was not available.

12 See ibid

13 See Sónia Bexiga, ‘RC Ambiental. Seguradoras respondem à crescente consciencialização’, O Jornal Económico (19 July 2016); https://jornaleconomico.sapo.pt/noticias/rc-ambiental-seguradoras-respondem-crescente-consciencializacao-61854 (in Portuguese)

14 See ibid




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3.18. Coverage litigation

There had not been any coverage litigation for environmental insurance policies in Portugal when this report was published.

3.19. Cover for ELD liabilities in general liability policies

One ELD stakeholder stated that insurers did not offer extensions to general liability policies to provide cover for ELD liabilities in Portugal.

Another ELD stakeholder agreed, with the proviso that extensions had been offered in the past but that these had tended to disappear.

3.20. Cover for ELD liabilities in property policies

Insurers do not offer extensions to property policies to provide cover for ELD liabilities in Portugal.

4. OTHER VOLUNTARY FINANCIAL SECURITY INSTRUMENTS AND MECHANISMS

4.1. Type(s)

Voluntary financial security instruments such as bank guarantees, bonds, etc. are not generally available for liabilities under the ELD or other environmental legislation. There is no demand for them because they are geared towards mandatory financial security requirements for known responsibilities such as closure and post closure (aftercare) of a landfill, not voluntary financial security for accidental ELD incidents.

4.2. Availability

Not applicable

5. MANDATORY FINANCIAL SECURITY FOR ELD LIABILITIES (ARTICLE 14(1))

5.1. Competent authority(ies)

The competent authority for the mandatory financial security system for ELD liabilities is the APA of the Ministry of the Environment and Energy Transition (Ministério do Ambiente e da Transição Energética) 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.

The main inspection body is the Inspectorate General of Agriculture, Sea, Environment and Spatial Planning (Inspeção-Geral da Agricultura, do Mar, do Ambiente e do Ordenamento do Território; IGAMAOT).

5.2. Legislative provisions

5.2.1. Name(s) of legislation

Article 22 of DL 147/2008 introduced the mandatory financial security system for ELD liabilities. Among other things, article 22(4) stated that the Government may establish minimum limits for mandatory financial securities by means of an order to be approved by members of the Government responsible for the areas of finance, environment and economy.

DL 147/2008 was not the first legislative provision to introduce mandatory financial security for environmental damage in Portugal. Article 43 of Law No 11/87, of 7 April, as amended (Lei


14

No 11/87, de 7 de abril), the Environment Law (Lei de bases do ambiente) provided that persons who carried out classified activities that involved a high risk of environmental damage must insure their civil liabilities. In 2014, Law No 11/87 was repealed by Law No 19/2014, of 14 April (Lei No 19/2014, de 14 de abril).15

5.2.2. Stand-alone requirement or hybrid

Mandatory financial security for ELD liabilities is a stand-alone requirement. It is not part of a system that also requires financial security for other liabilities and responsibilities.

5.2.3. Consideration of mandatory financial security legislation (if not enacted)

Not applicable

5.2.4. Reasons for decision not to enact mandatory financial security legislation

Not applicable

5.2.5. Revisions to legislation

Article 86 of Decree-Law No 29-A/2011, of 1 March amended article 22(4) of DL 147/2008 to establish that the Portuguese Government may specify the following in respect of financial security instruments:

the scope of activities covered by them;

the type of risk to be covered;

the period of time for the financial security instrument;

the temporal scope of the application of the instrument; and

the minimum amount guaranteed by the instrument.

The ordinance (portaria) had not been issued when this report was published.

5.2.6. ELD liabilities covered by mandatory financial security

The requirement for mandatory financial security applies to activities under all the legislation set out in annex III of DL 147/2008 (which, as noted above, equates to annex III of the ELD).

5.2.7. Description of mandatory financial security provisions

Article 22(1) of DL 147/2008 provides that operators of activities listed in annex III must have one or more financial security instruments to ensure their environmental responsibility in order to carry out such activities.

The methodology suggested by the APA for determining the amount of mandatory financial security is as follows:

1. characterise the activities carried out by the operator including the facility at which they are carried out; the surrounding environment; risks posed by the activities to protected species and natural habitats, water and land, and analyse the history of emissions, events or incidents;

2. identify the initial state by analysing the current status of the protected species and natural habitats, surface waters, artificial or heavily modified water bodies,

15 Lei No 19/2014, de 14 de abril; http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?artigo_id=2091A0022&nid=2091&tabela=leis&ficha=1&nversao (in Portuguese)

http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?artigo_id=2091A0022&nid=2091&tabela=leis&ficha=1&nversao



15

groundwater and marine waters, soil, and services provided by such natural resources that may be affected by risks from the activities;

3. identify and analyse potential risk scenarios, that is incidents that may cause environmental damage with more than a negligible likelihood of occurrence such as accidental releases of hazardous substances, fire and explosions as well as the frequency of the occurrence of predictable risk scenarios;

4. evaluate the severity of the environmental damage associated with predictable risk scenarios, estimating the natural resources and services provided by affected natural resources including the extent, degree, persistence and duration of the allocation or loss of services;

5. determine the necessary and appropriate preventive and remediation measures to be carried out; and

6. estimate the costs of the measures indicated in 5. above for the scenario with the most serious consequences for affected resources.16

The Frequently Asked Questions (Perguntas Frequentes; FAQ), which are available on the APA’s website, and the Operator Support Manual, issued by the APA in October 2011 (see section 5.8 below) emphasise that DL 147/2008 does not specify a particular risk analysis methodology. An operator, therefore, may adopt the methodology most appropriate to the activities carried out by it and the damage that may be caused by those activities to land, water, and protected species and natural habitats. The amount of financial security that is required may be reduced if the operator minimises the risks of environmental damage by carrying out measures to reduce them.

The operator may carry out the risk analysis itself or instruct a third party to carry it out.17

The amount of financial security is based on the estimated costs of the measures to prevent or remediate potential environmental damage according to risks posed by the activity.

5.2.8. Exception for low risk sites

There is no exemption from the mandatory financial security requirements for low-risk sites or activities.

16 Agência Portuguesa do Ambiente, ‘Perguntas Frequentes’, 26; https://www.apambiente.pt/index.php?ref=pf&f_faq_tema=15faa2a47a73d742a14c48d3d298556f#1601 (in Portuguese); Agência Portuguesa do Ambiente, ‘Legal Regime of Liability for Environmental Damage; Prevention and Remediation of Environmental Damage; Operator Support Manual’ (Regime jurídico da responsabilidade por danos ambientais; Prevenção e Remediação de Danos Ambientais Manual de Apoio ao Operador)’ (August 2016), 14-15; https://www.apambiente.pt/_zdata/Instrumentos/Responsabilidade%20Ambiental/2016_08_Manual%20de%20apoio%20operador.pdf (in Portuguese)

17 Agência Portuguesa do Ambiente, ‘Perguntas Frequentes’, 28; https://www.apambiente.pt/index.php?ref=pf&f_faq_tema=15faa2a47a73d742a14c48d3d298556f#1601 (in Portuguese); Agência Portuguesa do Ambiente, ‘Legal Regime of Liability for Environmental Damage; Prevention and Remediation of Environmental Damage; Operator Support Manual’ (Regime jurídico da responsabilidade por danos ambientais; Prevenção e Remediação de Danos Ambientais Manual de Apoio ao Operador)’ (August 2016), 15; https://www.apambiente.pt/_zdata/Instrumentos/Responsabilidade%20Ambiental/2016_08_Manual%20de%20apoio%20operador.pdf (in Portuguese)

https://www.apambiente.pt/index.php?ref=pf&f_faq_tema=15faa2a47a73d742a14c48d3d298556f#1601

https://www.apambiente.pt/_zdata/Instrumentos/Responsabilidade%20Ambiental/2016_08_Manual%20de%20apoio%20operador.pdf






16

5.2.9. Exception for ISO 14001 certification or EMAS registration

There is no exception for operators with an EU Eco-Management and Audit Scheme (EMAS) certificate or International Organisation for Standardisation (ISO) 14001 (UNE-EN ISO 14001:1996) certification.

5.2.10. Other exceptions

There are no exceptions to the mandatory financial security system for ELD liabilities.

In comments to the Constitution of Financial Guarantee (Constituição de Garantia Financeira) document, the National Transport Commission on Dangerous Goods (Comissão Nacional do Transporte de Mercadorias Perigosas) commented that Decree-Law No 41-A/2010 of 29 April (Decreto-Lei No 41-A/2010 de 29 de abril), which implements the European Agreement Concerning the International Carriage of Dangerous Goods by Road (ADR) in Portugal, includes partial and total exemptions for, among other things, the transport of uncleaned empty containers, transport that is ancillary to the main activity of a business, and the transport of limited quantities of goods under section 1.1.3, as well as the transport of batteries, sulphur granules, etc. under chapter 3.3.18

The National Transport Commission contended that companies, such as liquid petroleum gas assemblers and repairers that are required to have financial security under Ordinance No 588/2005 of 12 July (Portaria No 588/2005 de 12 de julho), should be exempt from the mandatory financial security system for ELD liabilities.19

There is no exception for the above companies.

5.3. Environmental licence conditions

Mandatory financial security for ELD liabilities in Portugal is established by legislation. It is not established by conditions in environmental licences.

5.3.1. Stand-alone requirement or hybrid

Not applicable

5.3.2. Revisions to licensing requirements

Not applicable

5.3.3. ELD liabilities covered by mandatory financial security

Not applicable

5.3.4. Description of mandatory financial security conditions

Not applicable

18 United National Economic Commission for Europe, European Agreement concerning the International Carriage of Dangerous Goods by Road, Annex A, section 1.1.3; ibid chapter 3.3; http://www.unece.org/fileadmin/DAM/trans/publications/ADR_2019_vol1_1818953_E.pdf

19 See Comissão Nacional do Transporte de Mercadorias Perigosas, (CNTMP/2011/19, 8 June 2011); http://www.imt-ip.pt/sites/IMTT/Portugues/TransportesRodoviarios/TransporteMercadoriasPerigosas/ComissaoNacional/Documents/2011/CNTMP_2011_19.pdf (in Portuguese)

http://www.unece.org/fileadmin/DAM/trans/publications/ADR_2019_vol1_1818953_E.pdf

http://www.imt-ip.pt/sites/IMTT/Portugues/TransportesRodoviarios/TransporteMercadoriasPerigosas/ComissaoNacional/Documents/2011/CNTMP_2011_19.pdf




17

5.4. Date of introduction

The mandatory financial security system was introduced in article 22 of DL 147/2008, which entered into force on 1 August 2008.

5.5. Effective date

Article 34 of DL 147/2008 stated that the effective date for mandatory financial security for ELD liabilities is 1 January 2010.

In early January 2010, the APA sent letters to all annex III operators requiring them to provide evidence of a financial guarantee to include:

the type, characteristics and amount of the financial guarantee(s) that were in place and their respective costs (i.e. insurance premiums);

the methodology adopted in order to calculate the amount of the financial guarantee;

the rationale behind the calculation and the annual cost of the guarantee; and

a copy of the document that established proof of the existence of the financial guarantee.

The letters resulted in many operators instructing environmental consultants to evaluate their environmental risks to determine the amount of financial security that was required. They also resulted in some operators purchasing environmental insurance policies from the few insurers in the environmental insurance market at that time.20

The 2013 report from Portugal to the European Commission under then article 18(1) of the ELD commented that operators and business associations had told the competent authority that they had encountered difficulties in obtaining financial security instruments for the wide range of operators subject to mandatory financial security. They also reported that coverage for ELD liabilities at that time was ‘very limited’ and that premiums for insurance policies to cover ELD liabilities were ‘high’. The APA commented, however, that the obligations to have evidence of financial security had helped raise various stakeholders’ awareness of the ELD.21

5.6. Key reasons for introduction

In accordance with article 14(1) of the ELD, the Assembly of the Republic (Assembleia da República) decided to establish mandatory financial security for operators that carry out activities specified in annex III of the ELD.

5.7. Withdrawal of mandatory financial security

Not applicable

5.8. Guidance

In October 2011, the APA published the Guide for the Assessment of Imminent Threats and Environmental Damage; Environmental responsibility (Guia para a Avaliação de Ameaça Iminente e Dano Ambiental; Responsabilidade Ambiental). The guide includes a brief

20 See Paula Rios and Ana Salgueiro, ‘Environmental Liability and financial guarantees: The Portuguese system and the Spanish example for other markets, Part 1’, Gerencia de Riesgos y Seguros, No. 112 (2012), 12; http://www.mapfre.com/fundacion/html/revistas/gerencia/n112/docs/Estudio1-en.pdf

21 Portuguese Environment Agency, ‘Report on the experience gained in the application of Decree-Law No. 147/2008 of 29 July 2008’ (April 2013), 11; http://ec.europa.eu/environment/legal/liability/pdf/eld_ms_reports/PT%20Report%20En.pdf


http://ec.europa.eu/environment/legal/liability/pdf/eld_ms_reports/PT%20Report%20En.pdf


18

discussion of the mandatory financial security system.22 An unofficial English translation is also available.23

In August 2016, the APA published the Legal Regime of Liability for Environmental Damage; Prevention and Remediation of Environmental Damage; Operator Support Manual (Regime Jurídico da Responsabilidade por Danos Ambientais; Prevenção e Remediação de Danos Ambientais Manual de Apoio ao Operador; Operator Support Manual), which includes a description of the mandatory financial security system.24

The APA’s website includes the FAQ on issues concerning DL 147/2008, including the mandatory financial security system established by it.25

5.9. Operators subject to mandatory financial security

Article 22(1) of DL 147/2008 states that all operators that carry out one or more activities under annex III of DL 147/2008 (equivalent to annex III of the ELD) are subject to the mandatory financial security system.

5.10. Amounts and limits of mandatory financial security

There is no specified amount or limit for financial security for ELD liabilities. The amount depends on the risk assessment carried out by an operator.

5.11. Growth of mandatory financial security

The requirements for mandatory financial security for annex III activities under DL 147/2008 have not been reduced since their introduction. They still extend to all ELD liabilities for all annex III activities.

6. REGULATORY OVERSIGHT OF FINANCIAL SECURITY INSTRUMENTS AND MECHANISMS

6.1. Review of financial security instruments or mechanisms

The APA is not required to validate financial security instruments submitted to it to meet the requirements of the mandatory financial security system. It retains the right, however, to verify financial security instruments during an inspection or as part of its supervision.26

22 Agência Portuguesa do Ambiente, ‘Guia para a Avaliação de Ameaça Iminente e Dano Ambiental; Responsabilidade Ambiental’ (October 2011), 11-12; http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/portugal.pdf (in Portuguese); see Conselho Consultivo para a Responsabilidade Ambiental; https://www.apambiente.pt/index.php?ref=17&subref=157&sub2ref=343 (in Portuguese)

23 Portuguese Environmental Protection Agency, ‘Guide for the Assessment of Imminent Threats and Environmental Damages’ (October 2011); http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/Portugal%20-%20Guide.pdf

24 Agência Portuguesa do Ambiente, ‘Legal Regime of Liability for Environmental Damage; Prevention and Remediation of Environmental Damage; Operator Support Manual’ (Regime jurídico da responsabilidade por danos ambientais; Prevenção e Remediação de Danos Ambientais Manual de Apoio ao Operador)’ (August 2016); https://www.apambiente.pt/_zdata/Instrumentos/Responsabilidade%20Ambiental/2016_08_Manual%20de%20apoio%20operador.pdf

25 Agência Portuguesa do Ambiente, ‘Perguntas Frequentes’; https://www.apambiente.pt/index.php?ref=pf&f_faq_tema=15faa2a47a73d742a14c48d3d298556f#1601 (in Portuguese)

26 Ibid 25

http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/portugal.pdf

https://www.apambiente.pt/index.php?ref=17&subref=157&sub2ref=343

http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/Portugal%20-%20Guide.pdf





19

6.2. Financial security instruments and mechanisms accepted

Article 22(2) of DL 147/2008 states that financial security requirements may be satisfied by the following:

insurance policies;

bank guarantees;

environmental funds;

own dedicated funds; and

a combination of the above.

The financial security instruments and/or mechanisms must be ring-fenced against other liabilities or responsibilities including any charges or other instruments that have a higher priority than them.

The FAQ on the APA’s website provides more details concerning each type of instrument as follows (insurance policies are described in section 6.2.2 below).

A bank guarantee must satisfy the following conditions:

be entered into with a financial institution authorised to carry out business in the EU or the European Economic Area (EEA);

include the identification details of the relevant branch of the bank, the applicant and the APA (as beneficiary), its intended purpose, the name of the legislation that requires it, its amount, and the period for which it is valid;

be unconditional and irrevocable; and

be capable of liquidation within 24 hours.27

A bank guarantee may not be cancelled without the authorisation of the APA following a request by a director or similarly responsible person of the operator. The request must be accompanied by an executed copy of the bank guarantee.28

An environmental fund may be established by a private initiative with the aim of funding measures to prevent or remediate an imminent threat of, or actual, environmental damage, respectively. The fund may be national or international provided that it is reserved for the sole purpose of the mandatory financial security system.29

There are two types of ‘own funds’; a security deposit, and a reserve held in the operator’s accounts.

An own fund that is a security deposit:

must be executed for the benefit of the APA in the account indicated by the competent authority; and

proof of the deposit must be submitted to the APA, identifying the operator, stating the amount deposited and its purpose (namely to provide security for liability for an imminent threat of, or actual, environmental damage potentially caused by specified activities of the operator, including the name of the activity and location where it is carried out).

An own fund that is a reserve held in the operator’s accounts:

27 Ibid 21

28 Ibid 23

29 Ibid 24


20

must result from a decision of a general meeting of the Board of Directors of the operator/company formally documented in the minutes or by a statement attesting the constitution of the reserves;

the reserves must also be documented by a statement by the certified accountant or statutory auditor (Contabilista Certificado ou do Revisor Oficial de Contas), stating that the company is sufficiently solvent to be able immediately to liquidate the funds in it without any restrictions); and

if requested by the competent authority, the Certified Accountant or the Official Account Reviewer (Contabilista Certificado or Revisor Oficial de Contas) should validate a certification of the accounts and the audit report for all years since the constitution of the reserve.30

If an operator wishes to cancel a security deposit in favour of the APA, it must request the APA, as the beneficiary, to authorise the cancellation. The request to the APA must be made by a director or other person with authority to bind the operator and must be accompanied by a copy of the security deposit.31

6.2.1. Templates

There are no templates for acceptable financial security instruments.

6.2.2. Requirements for environmental insurance policies

An insurance policy must contain the following to be acceptable as evidence of financial security for ELD liabilities:

the name of the policy including full identification of the documents that form part of it including the date and signature;

identification of the parties and their domiciles, the beneficiary and the representative of the insurer;

an unambiguous identification of the insured location;

object and nature of the insurance policy (to ensure that it provides cover for the operator’s activities under DL 147/2008, as amended);

the risks covered by the policy and exclusions to it;

the limit of liability;

the territorial scope;

the premium or the method for its calculation;

the policy period;

the manner in which a claim against the policy is determined;

any deductible;

any arrangements for renewal, waiver, and termination;

other rights and obligations of the parties;

the applicable law and any arbitration conditions; and

other relevant conditions.32

The FAQ states that the requirement to have mandatory insurance pursuant to the Responsible Industry System approved as an annex to Decree-Law No 169/2012, of 1 August, as amended by Decree Law No 73/2015, of 11 May (Sistema da Indústria Responsável (SIR),

30 Ibid 22

31 Ibid 23

32 Ibid 20


21

aprovado em anexo ao Decreto-Lei 169/20012, de 1 de agosto, na redação que lhe foi dada pelo Decreto-Lei 73/2015, de 11 de maio)33 and Ordinance 307/2015, of 24 September (Portaria 307/2015, de 24 de setembro)34 does not waive or prejudice the requirement to have mandatory financial security for ELD liabilities.

6.2.3. Form of mandatory environmental insurance policy

See section 6.2.2 above.

6.3. Financial security instruments and mechanisms not acceptable

The APA has not published any information on financial security instruments and mechanisms that are not acceptable.

6.4. Time of review

See section 6.1 above.

6.5. Regulatory costs of review

The APA does not charge an operator for its review of the operator’s financial security instrument or mechanisms. As noted in section 6.1 above, however, the APA retains the right to review financial security instruments; it does not necessarily review all of them.

6.6. Requirements for operator to review

There are no requirements for an operator periodically to review the mandatory financial security instrument or mechanism submitted to the APA for liabilities under the ELD. An operator is, however, advised to do so if there is a significant change in its activities, site or surroundings to the site.

7. ENFORCEMENT OF FINANCIAL SECURITY REQUIREMENTS

Whilst operators are not required to report to the APA that they have financial security for ELD liabilities, they must prove that they have financial security if requested by any of the inspectorate authorities referred to in the applicable legislation.

In September 2019, based on reports to the APA from approximately 250 operators, the distribution of financial security instruments and mechanisms was as follows:

36% insurance policies;

35% bank guarantees; and

29% own funds (see section 6.2 above).

If an operator that is subject to financial security for ELD liabilities fails to provide valid financial security for them, the General Inspectorate of Agriculture, Sea, Environment and Spatial Planning (Inspeção-Geral da Agricultura, do Mar, do Ambiente e do Ordenamento Território; IGAMAOT35 considers this to be a ‘Very serious environmental infraction’ according to article 26 of the Decree-Law.

33 Decreto-Lei No 169/2012 (consolidated version); https://dre.pt/web/guest/legislacao-consolidada/-/lc/67179556/view?p_p_state=maximized (in Portuguese)

34 Portaria 307/2015, de 24 de setembro; https://dre.tretas.org/dre/1598631/portaria-307-2015-de-24-de-setembro (in Portuguese)

35 The website for IGAMAOT is https://www.igamaot.gov.pt/



https://dre.tretas.org/dre/1598631/portaria-307-2015-de-24-de-setembro


https://www.igamaot.gov.pt/


22

In 2016, there were 19 cases under this category. In 2017, there were 38 cases, with 34 cases in 2018, for a total of 91.

8. EX POST ENVIRONMENTAL DAMAGE MANDATORY FINANCIAL SECURITY (ARTICLE 8(2))

Article 19(2) of DL 147/2008 provides that ‘the competent authority shall require the operator, inter alia via security over property or other appropriate guarantees, to pay the costs it has incurred for the preventive or remedial measures adopted under this decree-law’ (‘A autoridade competente exige ao operador, nomeadamente através de garantias sobre bens imóveis ou de outras garantias adequadas, o pagamento dos custos que tiver suportado com as medidas de prevenção ou reparação adoptadas em virtude do presente decreto-lei’). This is materially the same language as in the ELD.

The APA stated that article 19(2) means that an operator that has caused an imminent threat of, or actual, environmental damage is required to submit mandatory financial security for the costs of preventing or remediating it.

8.1. Date legislation or policy for mandatory financial security introduced

As indicated in section 5.5 above, DL 147/2008, which includes the provisions to establish the mandatory financial security system, was adopted on 29 July 2008.

8.2. Effective date for ex post mandatory financial security

DL 147/2008 does not provide an alternative date for article 19(2) to be effective. The effective date therefore is 1 August 2008.


Article 19(2) of DL 147/2008 is not specific as to financial security instruments and mechanisms that are acceptable; it simply states ‘inter alia via security over property or other appropriate guarantees’ (see section 8 above).


There is no legislation or guidance to state any financial security instruments or mechanisms that are not acceptable. There is only guidance on instruments and mechanisms that are acceptable.

9. PROVIDERS OF MANDATORY FINANCIAL SECURITY INSTRUMENTS

9.1. Insurers

Many national and multinational insurers provide mandatory financial security instruments in the form of environmental insurance policies that provide cover for ELD liabilities.

9.2. Banks and other financial institutions

Banks and other financial institutions offer mandatory financial security instruments in the form of bank guarantees and security deposits that provide cover for ELD liabilities.

Banks and other financial institutions also offer financial security instruments in the form of bank guarantees for responsibilities under the Landfill Directive (1999/31/EC) and the Extractive Waste Directive (2006/21/EC) (see sections 11.1.2 and 12.1.2 below).


23

9.3. Sureties

Sureties do not offer bonds for liabilities under the ELD. They also do not offer bonds for financial security instruments for responsibilities under the Landfill Directive or the Extractive Waste Directive (see sections 11.1.2 and 12.1.2 below).

9.4. Providers outside Member State

Multinational insurers based in other Member States offer insurance policies to provide cover for ELD and other environmental risks in Portugal through passporting.

Bank guarantees may be issued by a financial institution authorised to carry out business in the EU or the EEA (see section 6.2 above).

10. MEASURES TAKEN BY MEMBER STATE TO DEVELOP FINANCIAL SECURITY MARKETS

The Portuguese Government has taken many measures to develop financial security markets that facilitated the introduction and evolution of the mandatory financial security system, especially through the APA.

In 2010, the APA carried out a project with the Portuguese Association of Petroleum Companies (Associação Portuguesa de Empresas Petrolíferas; APETRO) to support the application of the ELD to oil storage and distribution facilities and service stations. APETRO had commented in a position paper of December 2009 that its members were unable to comply with the mandatory financial security requirements due to the lack of technical guidance and standardised methodologies to quantify environmental damage, confusion as to whether financial security was required for civil liabilities as well as preventive and remediation measures, and duplication of the requirement for mandatory financial security for water damage (see section 13.3 below).36

In this context, the Sectoral Guide for Environmental Responsibility for the Storage of Petroleum Products (Guia Sectorial de Responsabilidade Ambiental para a Armazenagem de Produtos Petrolíferos)37 was developed and published on APETRO’s website in July 2011. It describes an environmental risk assessment methodology that should be used to calculate the amount of the financial security for this sector. The Sectoral Guide for Environmental Responsibility for the Distribution of Petroleum Products (Guia Sectorial de Responsabilidade Ambiental para a Distribuição de Produtos Petrolíferos),38 and the Sectoral Guide for Environmental Responsibility for the Marketing of Petroleum Products (Guia Sectorial de Responsabilidade Ambiental para a Comercialização de Produtos Petrolíferos),39 both dated October 2012, were also published.

36 See, e.g., Associação Portuguesa de Empresas Petrolíferas, ‘Posição APETRO, Decreto-Lei No 147/2008, de 29 de julho; Regime Responsabilidade Ambiental’ (15 de Dezembro de 2009); https://www.apetro.pt/documentos/positionpaperIV.pdf (in Portuguese)

37 Associação Portuguesa de Empresas Petrolíferas, Guia Sectorial de Responsabilidade Ambiental para a Armazenagem de Produtos Petrolíferos (July 2011); http://www.apetro.pt/documentos/armazenagem.pdf (in Portuguese)

38 Associação Portuguesa de Empresas Petrolíferas, Guia Sectorial de Responsabilidade Ambiental para a Distribuição de Produtos Petrolíferos (October 2012); http://www.apetro.pt/documentos/distribuicao.pdf (in Portuguese)

39 Ibid

https://www.apetro.pt/documentos/positionpaperIV.pdf

http://www.apetro.pt/documentos/armazenagem.pdf

http://www.apetro.pt/documentos/distribuicao.pdf


24

By Order 12778/2010, of 9 August (Despacho No 12778/2010, de 9 de agosto),40 the Consultative Council for Environmental Liability (Conselho Consultivo para a Responsabilidade Ambiental; CC-RA)41 was established with the aim of (1) monitoring the technical and economic aspects of the provision of financial security under DL 147/2008, and (2) monitoring the development of the conditions and evolution of the financial security market. The CC-RA is composed of representatives from the insurance and banking sectors; industrial, agricultural and business associations; associations of municipalities, non-governmental environmental organisations; as well as representatives of the ministries of environment, land use planning, health, economy, transportation and agriculture; and representatives of the Madeira and Azores Regional Governments.42

Through the same Order, the Permanent Monitoring Commission for Environmental Liability (Comissão Permanente de Acompanhamento para a Responsabilidade Ambiental; CPA-RA) was also created to monitor environmental responsibility. The CPA-RA provides technical support to the APA in determining preventive and remedial measures for environmental damage and their evaluation.

In October 2011, the APA published the Guide to the evaluation of imminent threat and environmental damage; Environmental responsibility (Guia para a Avaliação de Ameaça Iminente e Dano Ambiental; Responsabilidade Ambiental). The guide includes a brief discussion of the mandatory financial security system.43 An unofficial English translation is also available.44

In August 2016, the APA published the Legal Regime of Liability for Environmental Damage; Prevention and Remediation of Environmental Damage; Operator Support Manual (Regime jurídico da responsabilidade por danos ambientais; Prevenção e Remediação de Danos Ambientais Manual de Apoio ao Operador; Operator Support Manual), which includes sections on the mandatory financial security system.45

40 Despacho No 12778/2010, de 9 de agosto; https://dre.pt/application/file/1076882 (in Portuguese)

41 See Conselho Consultivo para a Responsabilidade Ambiental; https://apambiente.pt/index.php?ref=17&subref=157&sub2ref=376 (in Portuguese)

42 Portuguese Environment Agency, ‘Report on the experience gained in the application of Decree-Law No. 147/2008 of 29 July 2008’ (April 2013), 11; http://ec.europa.eu/environment/legal/liability/pdf/eld_ms_reports/PT%20Report%20En.pdf

43 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’ (Outubro 2011), 11-12; http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/portugal.pdf (in Portuguese); see Conselho Consultivo para a Responsabilidade Ambiental; https://www.apambiente.pt/index.php?ref=17&subref=157&sub2ref=343 (in Portuguese)

44 Environmental Protection Agency of Portugal, ‘Guide for the Assessment of Imminent Threats and Environmental Damages’ (October 2011); http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/Portugal%20-%20Guide.pdf

45 Agência Portuguesa do Ambiente,’ Legal Regime of Liability for Environmental Damage; Prevention and Remediation of Environmental Damage; Operator Support Manual’ (Regime jurídico da responsabilidade por danos ambientais; Prevenção e Remediação de Danos Ambientais Manual de Apoio ao Operador)’ (August 2016); https://www.apambiente.pt/_zdata/Instrumentos/Responsabilidade%20Ambiental/2016_08_Manual%20de%20apoio%20operador.pdf

https://dre.pt/application/file/1076882

https://apambiente.pt/index.php?ref=17&subref=157&sub2ref=376








25

In addition, the APA published the FAQ on issues concerning DL 147/2008 including the mandatory financial security system established by it on its website.46

Operators subject to the financial security system upload their financial security instrument or mechanism on a platform for communication of environmental damage and imminent threats of such damage, available on the APA’s website.47

The above documents and measures are in addition to other documentation including guidance, and measures by the APA concerning issues other than mandatory financial security under DL 147/2008.

11. EU ENVIRONMENTAL LEGISLATION WITH MANDATORY FINANCIAL SECURITY PROVISIONS

11.1. Landfill Directive

11.1.1. Competent authority(ies)

The APA is the competent authority for the Landfill Directive, which is implemented in Portugal by the following legislation:

Decree-Law No 178/2006, of 5 September (Decreto-Lei No 178/2006, de 5 de setembro), as amended by Decree-Law No 73/2011 of 17 June (Decreto-Lei No 73/2011, de 17 de junho), which established the General Waste Management Regime (Regime Geral da Gestão de Resíduos);48 and

Decree-Law No 183/2009 of 10 August (Decreto-Lei No 183/2009, de 10 de agosto),49 which established the Legal Regime on the Discharge of Waste at Landfills (Regime Jurídico da Deposição de Resíduos em Aterro).

The General Waste Management Regime applies to activities involving non-hazardous and hazardous waste. Permits for the different classes of landfills (non-hazardous waste and hazardous waste) are granted by different authorities.

11.1.2. Financial security provisions

Article 24 of Decree-Law No 183/2009 provides that the operator of a landfill must have financial security to ensure compliance with the conditions imposed on the licence, including those related to closure and post closure (aftercare) control and maintenance.

Article 26 of Decree-Law No 183/2009 provides that the operator must also have civil liability insurance to cover damages arising from sudden and accidental pollution caused by landfilling of waste and associated remediation costs.

46 Agência Portuguesa do Ambiente, ‘Perguntas Frequentes’; https://www.apambiente.pt/index.php?ref=pf&f_faq_tema=15faa2a47a73d742a14c48d3d298556f#1601 (in Portuguese)

47 ‘Environmental liability; Communication form; Notifier accreditation’; https://ra.apambiente.pt/form# (in Portuguese and English)

48 Decreto-Lei No 178/2006, de 5 de setembro (consolidated version); https://dre.pt/web/guest/legislacao-consolidada/-/lc/114291596/201907251707/diploma?p_p_state=maximized&did=34530275&rp=indice (in Portuguese)

49 Decreto-Lei No 183/2009, de 10 de agosto (consolidated version); https://dre.pt/web/guest/legislacao-consolidada/-/lc/34518175/view?p_p_state=maximized (in Portuguese)


https://ra.apambiente.pt/form

https://dre.pt/web/guest/legislacao-consolidada/-/lc/114291596/201907251707/diploma?p_p_state=maximized&did=34530275&rp=indice





26

11.1.3. Financial security instruments and mechanisms accepted

Article 24 states that the guarantee must be provided by a financial institution that is authorised in the EU or the EEA and that it must be dedicated, unconditional, irrevocable, payable on first demand, and able to be liquidated within three days.

11.1.4. Templates

No templates for the financial security instrument for landfills have been issued.

11.1.5. Financial security instruments and mechanisms not acceptable

There is no reference to financial security instruments and mechanisms that are not acceptable.

11.2. Extractive Waste Directive


The competent authority for the Extractive Waste Directive, which is implemented in Portugal by Decree-Law No 10/2010, of 4 February (Decreto-lei No 10/2010, de 4 de fevereiro),50 is the Directorate General for Energy and Geology (Direcção Geral de Energia e Geologia; DGEG).


Article 31 of Decree-Law No 10/2010 provides that after an application for a licence for a waste facility has been approved, the operator must provide a financial guarantee to ensure compliance with the conditions of the licence, including those concerning the post-closure phase and rehabilitation of soil (land) affected by the waste facility in accordance with the waste management plan.

The licensing entity determines the amount of the financial guarantee based on the following factors:

the likely impact of the waste facility on the environment and human health taking into account in particular the category of the facility, the characteristics of the waste, and the soil treatment that may be affected by the facility in order to restore it to a satisfactory state, particularly its proper and beneficial use;

the type of restoration, including the future use of the waste facility, taking into account in particular the waste management plan and the proposed closure plan;

applicable environmental standards and objectives including the physical stability of the waste facility, the reference values for soil and water and the maximum release rates of contaminants;

technical measures necessary to achieve environmental objectives, including measures to ensure the stability of the waste facility and to limit environmental damage;

measures to achieve objectives during and after closure, including soil rehabilitation, post-closure treatment and monitoring when necessary and, when relevant, measures for the restoration of biodiversity;

the estimated time scale of the environmental impact and any required mitigation measures; and

50 Decreto-Lei No 10/2010, de 4 de fevereiro; https://dre.pt/application/conteudo/617112 (in Portuguese)

https://dre.pt/application/conteudo/617112


27

an assessment, to be carried out by an independent qualified third party, of the necessary costs to ensure soil rehabilitation, closure and post closure, including possible post-closure monitoring or treatment of contaminants and taking into account the possibility of any unplanned or premature closure.

The licensing entity reviews the amount of the guarantee every five years and may reduce it when there are major changes in the operations or the rehabilitation works required to be carried out on land affected by the waste facility in accordance with the waste management plan.


Article 31 of Decree-Law No 10/2010 specifies that the financial guarantee must be for the benefit of the licensing entity, contracting with an institution authorised by the Bank of Portugal, and must be dedicated, unconditional, irrevocable, payable on first demand, and able to be liquidated within three days.

11.2.4. Templates

No templates for the financial security instrument for extractive waste facilities have been issued.

11.2.5. Financial security instruments not acceptable


11.3. Carbon Capture and Storage Directive

11.3.1. Status of implementation

When this report was published Portugal did not have any carbon storage facilities pursuant to the Directive on the geological storage of carbon dioxide (2009/31/EC).


The competent authorities for the Directive on the Geological Storage of Carbon Dioxide (2009/31/EC), which is implemented in Portugal by articles 6 and 7 of Decree-Law No 60/2012, of 14 March (Decreto-Lei No 60/2012, de 14 de março),51 are the government entity responsible for geological resources and the DGEG.


Article 21 of Decree-Law No 60/2012 provides that the operator of a storage facility shall, by means of a financial guarantee or equivalent instrument, ensure that financial means are available to fulfil all obligations arising from the grant and licensing, including closure and post-closure requirements.

Article 21 further provides that the guarantee is independent of the financial security system under DL 147/2008, but it must take into account the coverage provided by it, as well as any other financial security, to avoid overlaps or gaps in risks. If the financial guarantees are provided by a single instrument, the instrument must specify the amounts that correspond to each requirement.

51 Decreto-Lei No 60/2012, de 14 de março; https://dre.pt/application/conteudo/553447 (in Portuguese)



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The financial guarantee must be effective before the first injection of carbon dioxide into the storage facility. The amount of the guarantee must be periodically adapted to reflect changes in risks and the estimated costs of leakage of carbon dioxide from the facility.


See section 11.3.3 above.

11.3.5. Templates

No templates for the financial security instrument for storage facilities have been issued.



12. EU RECOMMENDATION ON HYDRAULIC FRACTURING

12.1. Status

The Portuguese Government has granted several prospecting licences for hydraulic fracturing (fracking). In 2016, however, no exploration or production licences involving unconventional oil and gas had been granted or predicted.52 This situation had not changed when this report was published.


The DGEG is the competent authority for licensing fracking in Portugal.

All applicants for licences to carry out fracking in Portugal must carry out an environmental impact assessment for which the APA is the competent authority.

12.3. Financial security provisions

As indicated in section 5.9 above, all operators that carry out activities listed in annex III of DL 147/2008 must have financial security for ELD liabilities. Financial security is thus required for fracking if it involves, for example, dangerous substances.

No Portuguese legislation specifically requires financial security for fracking.



12.5. Templates


52 See K.L. Anthonsen, S. Schovsbo and P. Britze, ‘Overview of the current status and development of shale gas and shale oil in Europe’ (Report T3b of the EUOGA study (EU Unconventional Oil and Gas Assessment) commissioned by JRC-IET to GEUS, 2016), 36; https://openecho.jrc.ec.europa.eu/sites/default/files/t3_overview_of_the_current_status_and_development_of_shale_gas_and_shale_oil_in_europe.pdf

https://openecho.jrc.ec.europa.eu/sites/default/files/t3_overview_of_the_current_status_and_development_of_shale_gas_and_shale_oil_in_europe.pdf



29



13. EU ENVIRONMENTAL LEGISLATION WITH NO MANDATORY FINANCIAL SECURITY PROVISIONS

13.1. Industrial Emissions Directive


The competent authorities for the Industrial Emissions Directive (2010/75/EU), which is implemented in Portugal by Decree-Law No 127/2013, of 30 August (Decreto-Lei No 127/2013, de 30 de agosto),53 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.


Article 63 of Decree-Law No 127/2013 provides that, without prejudice to the mandatory financial security system for ELD liabilities and requirements for professional indemnity insurance, the operator of a waste incineration or co-incineration plant must have financial security in the form of insurance for civil law liabilities (that is, claims for bodily injury, property damage and economic loss).

In addition, businesses subject to the mandatory financial security requirements for ELD liabilities that are also subject to the Industrial Emissions Directive, such as businesses that collect, transport, recover or incinerate hazardous waste, are required to have financial security for ELD liabilities.


Article 63 of Decree-Law No 127/2013 refers only to insurance policies for civil liabilities.

13.1.4. Templates

There are no templates for acceptable insurance policies.


Decree-Law No 127/2013 does not specify any financial security instruments and mechanisms that are not acceptable, with the caveat that it refers only to insurance policies for civil liabilities.

13.2. Seveso III Directive


The competent authorities for the Seveso III Directive (2012/18/EU), which is implemented in Portugal by Decree-Law No 150/2015, of 5 August (Decreto-lei No 150/2015, de 5 de agosto),54 are the APA for mainland Portugal, the Regional Directorate for the Environment in the

53 Decreto-Lei No 127/2013, de 30 de agosto; https://dre.pt/pesquisa/-/search/499546/details/maximized (in Portuguese)

54 Decreto-lei No 150/2015, de 5 de agosto; https://dre.pt/home/-/dre/69951097/details/maximized (in Portuguese)


https://dre.pt/home/-/dre/69951097/details/maximized


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Autonomous Region of Azores, and the Regional Directorate for Spatial Planning and Environment in the Autonomous Region of Madeira.


Decree-Law No 150/2015 does not include any financial security provisions.

All operators subject to the Seveso III Directive, however, are also subject to strict liability under the ELD. Therefore, the requirement for financial security under the ELD applies.



13.2.4. Templates




13.3. Other legislation

Operators of waste incineration and co-incineration plants are required to have financial security for civil liabilities from their operations.

14. MANDATORY FINANCIAL SECURITY FOR OFFSHORE OIL AND GAS OPERATIONS


The competent authorities for the licensing of offshore oil and gas operations in Portugal are the Directorate-General for Natural Resources, Safety and Maritime Services (Direção-Geral de Recursos Naturais, Segurança e Serviços Marítimos; DGRM) and the DGEG.

14.2. Status of offshore oil and gas operations

Portugal has carried out offshore oil and gas exploration for many years. No commercial production was taking place when this report was published.55

14.3. Requirements for financial security

Article 12 of Decree-Law No 13/2016, of 26 July (Decreto-Lei No 13/2016, de 26 de julho),56 which transposed the Offshore Safety Directive (2013/30/EU) into Portuguese law, requires an applicant for offshore oil and gas operations to provide financial security to cover liabilities that may arise from them, including potential economic and environmental damage. An applicant must provide proof of technical, economic and financial suitability for carrying out offshore oil and gas operations.

55 See Tomás Vaz Pinto and Claudia Santoz Cruz, ‘Portugal: Oil and Gas Regulation 2019’ (International Comparative Legal Guides, 22 January 2019); https://iclg.com/practice-areas/oil-and-gas-laws-and-regulations/portugal

56 Decreto-Lei No 13/2016, de 26 de julho (consolidated version); https://dre.pt/web/guest/legislacao-consolidada/-/lc/75027564/view?p_p_state=maximized (in Portuguese)

https://iclg.com/practice-areas/oil-and-gas-laws-and-regulations/portugal





31

Article 74 of Decree-Law No 109/94, of 26 April (Decreto-lei No 109/94, de 26 de abril)57 requires an applicant for a licence or concession to carry out offshore oil and gas operations to provide a guarantee in the form of a cash deposit, bank guarantee or insurance guarantee. The purpose of the financial security instrument is to ensure that the licensee or concessionaire will comply with the obligations of the licence or concession contract, including the payment of any fines and damages to the State or to third parties.

14.4. Requirement for financial security for ELD liabilities

As indicated in section 5.9 above, all operators that carry out activities listed in annex III of DL 147/2008 must have financial security for ELD liabilities.

An operator (and licensee) of offshore oil and gas operations must, therefore, have financial security for ELD liabilities from such operations.

15. FAILURE OF FINANCIAL SECURITY

15.1. Inadequate level of financial security instrument or mechanism to pay claims

In all cases of environmental damage registered at national level when this report was published, the operator paid the costs of preventing or remediating it. Further, the amount of the financial guarantees that had been established was sufficient to cover the necessary preventive and remedial measures.

15.2. Insolvency of operator leading to failure of financial security instrument or mechanism

There are no public reports of cases of an imminent threat of, or actual, environmental damage in which necessary measures were not carried out due to insolvency.

15.3. Other

No other instances of failures of financial security were available.

16. FUNDS

16.1. Name(s)

The Environmental Fund (Fundo Ambiental), which became effective on 1 January 2017, provides funding to public authorities for the cost of measures to prevent and remediate environmental damage under the ELD if private or other funds are not available. The fund is not dedicated to ELD liabilities; it also has other purposes as described in section 16.3 below.

The Environmental Fund was established by Decree-Law No 42-A/2016, of 12 August (Decreto-Lei No 42-A/2016, de 12 de agosto).58 It supersedes the Environmental Intervention Fund (Fundo de Intervenção Ambiental), which was established by article 69(1) of Law No 50/2006,

57 Decreto-lei 109/94, de 26 de abril (consolidated version); https://dre.pt/pesquisa/-/search/265543/details/maximized (in Portuguese)

58 Decreto-Lei No 42-A/2016, de 12 de agosto (consolidated version) https://dre.pt/web/guest/legislacao-consolidada/-/lc/105635148/view?p_p_state=maximized (in Portuguese)






32

of 29 August (Lei No 50/2006, de 29 de agosto) and authorised by Decree-Law No 207/2006, of 27 October (Decreto-Lei No 207/2006, de 27 de outubro).59

Article 23(1) of DL 147/2008 stated that the Environmental Intervention Fund would provide funding, among other things, for the costs of measures to prevent and remediate environmental damage for ‘orphan’ sites, that is, sites at which no liable operators exist that can provide funding for prevention and remediation measures.60 As indicated above, funding is available only to public authorities.

The Environmental Fund also superseded the Portuguese Carbon Fund, the Fund for the Protection of Water Resources, and the Fund for the Conservation of Nature and Biodiversity.61

16.2. Extension of existing fund to cover remedial costs under the ELD

The Environmental Intervention Fund was extended by DL 147/2008 to provide funding for preventive and remedial measures under the ELD. In turn, the Environmental Intervention Fund was superseded by the Environmental Fund (see section 16.1 above).

16.3. Purpose

The general purpose of the Environmental Fund is to support environmental policies to achieve sustainable development goals by contributing to the achievement of national and international objectives and commitments, in particular in respect of climate change, water resources, waste and nature conservation and biodiversity.62

The purpose of the Environmental Fund in respect of ELD liabilities is to bear the costs of public intervention for measures to prevent and remediate environmental damage. Before DL 147/2008 was adopted, the Environmental Intervention Fund had a similar purpose, that of providing funding for emergency measures and the timely remediation of environmental damage when funding was not available from other private or public sources. Funding was provided for man-made environmental damage as well as natural disasters.

In extending the fund that was established by article 69(1) of Law No 50/2006 to include funding for the costs of preventing and remediating environmental damage under DL 147/2008, the Portuguese Government decided that it was more effective to extend an existing fund so that there is a single environmental fund with increased funding that can adapt to various situations instead of creating more than one fund.63 That consideration carried through to establishment of the Environmental Fund.

59 Decreto-Lei No 207/2006, de 27 de outubro (consolidated version); https://dre.pt/web/guest/legislacao-consolidada/-/lc/105742920/201905121721/diploma?p_p_state=maximized&did=34503275&rp=indice (in Portuguese)

60 See Agência Portuguesa do Ambiente, ‘Report on Portuguese Environmental Economic Instruments 2010’, 98-100; https://www.apambiente.pt/_zdata/Divulgacao/Publicacoes/Guias%20e%20Manuais/report_peei_2010.pdf (in Portuguese)

61 See Ambiente e Transição Energética, ‘Finalidade e Objectivos’; https://www.fundoambiental.pt/quem-somos/finalidade-e-objectivos.aspx (in Portuguese)

62 See Ambiente e Transição Energética, ‘Missão do Fundo’; https://www.fundoambiental.pt/quem-somos/missao-do-fundo.aspx (in Portuguese)

63 Agência Portuguesa do Ambiente, ‘Fundo de Intervenção Ambiental’; https://www.apambiente.pt/index.php?ref=17&subref=162&sub2ref=483 (in Portuguese)



https://www.apambiente.pt/_zdata/Divulgacao/Publicacoes/Guias%20e%20Manuais/report_peei_2010.pdf

https://www.fundoambiental.pt/quem-somos/finalidade-e-objectivos.aspx


https://www.fundoambiental.pt/quem-somos/missao-do-fundo.aspx




33

16.4. Type

In respect of ELD liabilities, the Environmental Fund is an environmental guarantee and recovery fund that provides funding only to public authorities.

16.5. Source(s) of funding

Article 23(2) of DL 147/2008 provides that financial security instruments for ELD liabilities may include a fee of up to 1% of the value of the instrument to be collected by insurers, banking and other financial entities. The purpose of the fee is to finance the costs of public intervention for the costs of measures to prevent and remediate environmental damage.

Article 23(3) of DL 147/2008 states that the specific amount of the fee, as well as its settlement and payment rules, shall be fixed by an order to be approved by entities of the government responsible for the areas of finance, environment and economy.

Article 23(4) of DL 147/2008 provides that the proceeds from the collection of the fee represent the full and exclusive revenue of the Environmental Fund. The APA has stated that the definition of the specific amount of the fee is still under assessment. When this report was published, the ordinance to require payment of the fee had not been adopted.64

In 2017, the Portuguese Government provided EUR 154,000,000 to the Environmental Fund65 of which EUR 15,000,000 was provided for the acquisition of electric vehicles by municipal environmental services, support for the transition to a circular economy, and environmental awareness.66

16.6. Number and amount of claims

Not applicable

64 Agência Portuguesa do Ambiente, ‘Perguntas Frequentes’, 31; https://www.apambiente.pt/index.php?ref=pf&f_faq_tema=15faa2a47a73d742a14c48d3d298556f#1601 (in Portuguese)

65 See Novo Decreto cria um novo e único Fundo Ambiental, Noctula; https://noctula.pt/novo-decreto-cria-um-unico-fundo-ambiental/ (in Portuguese)

66 See ibid


https://noctula.pt/novo-decreto-cria-um-unico-fundo-ambiental/



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BIBLIOGRAPHY

International

United Nations Economic Commission for Europe, European Agreement concerning the International Carriage of Dangerous Goods by Road

Portugal

Legislation

Decree-Law No 42-A/2016, of 12 August (Decreto-Lei No 42-A/2016, de 12 de agosto) (consolidated version); https://dre.pt/web/guest/legislacao-consolidada/-/lc/105635148/view?p_p_state=maximized

Decree-Law No 13/2016, of 26 July (Decreto-Lei No 13/2016, de 26 de julho) (consolidated version); https://dre.pt/web/guest/legislacao-consolidada/-/lc/75027564/view?p_p_state=maximized

Decree-Law No 150/2015, of 5 August (Decreto-lei No 150/2015, de 5 de agosto); https://dre.pt/home/-/dre/69951097/details/maximized

Decree-Law No 127/2013, of 30 August (Decreto-Lei No 127/2013, de 30 de agosto); https://dre.pt/pesquisa/-/search/499546/details/maximized

Decree-Law No 169/2012, of 1 August, as amended by Decree Law No 73/2015, of 11 May (Sistema da Indústria Responsável (SIR), aprovado em anexo ao Decreto-Lei 169/20012, de 1 de agosto, na redação que lhe foi dada pelo Decreto-Lei 73/2015, de 11 de maio); https://dre.pt/web/guest/legislacao-consolidada/-/lc/67179556/view?p_p_state=maximized

Decree-Law No 60/2012, of 14 March (Decreto-Lei No 60/2012, de 14 de março); https://dre.pt/application/conteudo/553447

Decree-Law No 29-A/2011, of 1 March (Decreto-Lei No 29-A/2011, de 1 de março); https://dre.pt/pesquisa/-/search/144217/details/maximized

Decree-Law No 10/2010, of 4 February (Decreto-lei No 10/2010, de 4 de fevereiro); https://dre.pt/application/conteudo/61711

Decree-Law No 183/2009 of 10 August (Decreto-Lei No 183/2009, de 10 de agosto); https://dre.pt/web/guest/legislacao-consolidada/-/lc/34518175/view?p_p_state=maximized

Decree Law No 147/2008, of 29 July (Decreto-Lei No 147/2008, de 29 de julho; DL 147/2008); https://dre.pt/web/guest/legislacao-consolidada/-/lc/34503075/view?p_p_state=maximized

Decreto-Lei No 72/2008, de 16 de abril (consolidated version); https://dre.pt/web/guest/legislacao-consolidada/-/lc/105326879/201704171114/exportPdf/normal/1/cacheLevelPage?_LegislacaoConsolidada_WAR_drefrontofficeportlet_rp=indice

Decree-Law No 207/2006, of 27 October (Decreto-Lei No 207/2006, de 27 de outubro) (consolidated version); https://dre.pt/web/guest/legislacao-consolidada/-/lc/105742920/201905121721/diploma?p_p_state=maximized&did=34503275&rp=indice

Decree-Law No 178/2006 of 5 September (Decreto-Lei No 178/2006, de 5 de setembro); https://dre.pt/web/guest/legislacao-consolidada/-/lc/34530275/view?p_p_state=maximized

Decree-Law No 178/2006, of 5 September (Decreto-Lei No 178/2006, de 5 de setembro), as amended by Decree-Law No 73/2011 of 17 June (Decreto-Lei No 73/2011, de 17 de junho





https://dre.pt/home/-/dre/69951097/details/maximized















35

(consolidated version); https://dre.pt/web/guest/legislacao-consolidada/-/lc/114291596/201907251707/diploma?p_p_state=maximized&did=34530275&rp=indice

Decree-Law No 109/94, of 26 April (Decreto-lei No 109/94, de 26 de abril) (consolidated version); https://dre.pt/pesquisa/-/search/265543/details/maximized

Law No 19/2014, of 14 April (Lei No 19/2014, de 14 de abril); http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?artigo_id=2091A0022&nid=2091&tabela=leis&ficha=1&nversao

Ordinance 307/2015, of 24 September (Portaria 307/2015, de 24 de setembro); https://dre.tretas.org/dre/1598631/portaria-307-2015-de-24-de-setembro

Order 12778/2010, of 9 August (Despacho No 12778/2010, de 9 de Agosto); https://dre.pt/application/file/1076882

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’ (Outubro 2011); http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/portugal.pdf

Portuguese Environmental Protection Agency, ‘Guide for the Assessment of Imminent Threats and Environmental Damages’ (October 2011); http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/Portugal%20-%20Guide.pdf

Reports and other documents

Agência Portuguesa do Ambiente, ‘Fundo de Intervenção Ambiental’; https://www.apambiente.pt/index.php?ref=17&subref=162&sub2ref=483

Agência Portuguesa do Ambiente, ‘Legal Regime of Liability for Environmental Damage; Prevention and Remediation of Environmental Damage; Operator Support Manual’ (‘Regime jurídico da responsabilidade por danos ambientais; Prevenção e Remediação de Danos Ambientais Manual de Apoio ao Operador’) (August 2016); https://www.apambiente.pt/_zdata/Instrumentos/Responsabilidade%20Ambiental/2016_08_Manual%20de%20apoio%20operador.pdf

Agência Portuguesa do Ambiente, ‘Perguntas Frequentes’; https://www.apambiente.pt/index.php?ref=pf&f_faq_tema=15faa2a47a73d742a14c48d3d298556f#1601

Agência Portuguesa do Ambiente, ‘Report on Portuguese Environmental Economic Instruments 2010’; https://www.apambiente.pt/_zdata/Divulgacao/Publicacoes/Guias%20e%20Manuais/report_peei_2010.pdf

Ambiente e Transição Energética, ‘Finalidade e Objectivos’; https://www.fundoambiental.pt/quem-somos/finalidade-e-objectivos.aspx

Ambiente e Transição Energética, ‘Missão do Fundo’; https://www.fundoambiental.pt/quem-somos/missao-do-fundo.aspx

Conselho Consultivo para a Responsabilidade Ambiental; https://www.apambiente.pt/index.php?ref=17&subref=157&sub2ref=343







https://dre.pt/application/file/1076882















36

Environmental liability; Communication form; Notifier accreditation’; https://ra.apambiente.pt/form#

IGAMAOT; https://www.igamaot.gov.pt/

Ordinance 307/2015, of 24 September (Portaria 307/2015, de 24 de setembro); https://dre.tretas.org/dre/1598631/portaria-307-2015-de-24-de-setembro

Portuguese Environment Agency, ‘Report on the experience gained in the application of Decree-Law No. 147/2008 of 29 July 2008’ (April 2013); http://ec.europa.eu/environment/legal/liability/pdf/eld_ms_reports/PT%20Report%20En.pdf

Articles and reports

Ageas Seguros, ‘Como protejo o ambiente e reduzo o impacto de imprevistos causados pela minha empresa?’; https://www.ageas.pt/empresas/seguros/oferta-especializada/ecosfera-seguro-ambiental

AIG, ‘Seguro de Responsabilidade Ambiental: Porquê?’; http://www.groquifar.pt/divisao/documentos/da/aig-apresentacao-responsabilidade-ambiental-groquifar-fito.pdf

Associação Portuguesa de Empresas Petrolíferas, Guia Sectorial de Responsabilidade Ambiental para a Armazenagem de Produtos Petrolíferos (July 2011); http://www.apetro.pt/documentos/armazenagem.pdf

Associação Portuguesa de Empresas Petrolíferas, ‘Posição APETRO, Decreto-Lei No 147/2008, de 29 de julho; Regime Responsabilidade Ambiental’ (15 de Dezembro de 2009); https://www.apetro.pt/documentos/positionpaperIV.pdf

Associação Portuguesa de Empresas Petrolíferas, Guia Sectorial de Responsabilidade Ambiental para a Distribuição de Produtos Petrolíferos (October 2012); http://www.apetro.pt/documentos/distribuicao.pdf

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Bio Intelligence Service in collaboration with Stevens & Bolton LLP, ‘Implementation Challenges and Obstacles of the ELD, Annex – Part A: Legal analysis of the national transposing legislation’ (2013); https://ec.europa.eu/environment/archives/liability/eld/eldimplement/pdf/ELD%20implementation_Annex%20Part%20A.pdf

Comissão Nacional do Transporte de Mercadorias Perigosas, (CNTMP/2011/19, 8 June 2011); http://www.imt-ip.pt/sites/IMTT/Portugues/TransportesRodoviarios/TransporteMercadoriasPerigosas/ComissaoNacional/Documents/2011/CNTMP_2011_19.pdf

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https://www.igamaot.gov.pt/








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MAPFRE, ‘Seguro de Responsabilidade Ambiental’; https://www.mapfre.pt/seguros-pt/empresas/negocio/atividades-empresariais/stands-e-oficinas/responsabilidade-ambiental/coberturas.jsp

Novo Decreto cria um novo e único Fundo Ambiental, Noctula; https://noctula.pt/novo-decreto-cria-um-unico-fundo-ambiental/

Rios, Paula, and Ana Salgueiro, ‘Environmental Liability and financial guarantees: The Portuguese system and the Spanish example for other markets, Part 1’, Gerencia de Riesgos y Seguros, No 112 (2012); http://www.mapfre.com/fundacion/html/revistas/gerencia/n112/docs/Estudio1-en.pdf

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Vaz Pinto, Tomás, and Claudia Santoz Cruz, ‘Portugal: Oil and Gas Regulation 2019’ (International Comparative Legal Guides, 22 January 2019); https://iclg.com/practice-areas/oil-and-gas-laws-and-regulations/portugal







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