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RevCEDOUA A. 3, nº 5 (2000) >
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|Title: ||Os acordos sectoriais como um instrumento da política ambiental|
|Authors: ||Maçãs, Maria Fernanda|
|Keywords: ||Acordos sectoriais|
|Issue Date: ||2000|
|location : ||Local:Coimbra|
|Abstract: ||Res:Uma das notas mais características da Administração dos nossos dias traduz‑se na crescente substituição dos actos administrativos por instrumentos consensuais na definição do direito aplicável em
concreto às relações jurídico‑administrativas, em especial em sectores caracterizados pela grande complexidade e contraposição de interesses públicos e privados, tais como o urbanístico e o ambiental.
Este trabalho tem como objectivo abordar o papel que os contratos podem desempenhar na concretização dos objectivos ambientais, através de uma análise das principais características e dos problemas jurídicos que têm suscitado os contratos ambientais no nosso ordenamento jurídico.|
Res:In the last few years, one has noted that European Continental administrations have negotiated, with much more frequency, contracts with private individuals even within the typical administrative activity, that is, in the exercise of their authoritative powers. In light of this situation, we have an administration that is able to negotiate and arrange with private individuals, through the use of contracts, the production of legal effects traditionally produced via the administrative act.
In our legal order, the Code of Administrative Procedure, following the German procedural example, welcomed in article 179 the general principle of freedom in the adoption of the contract as a form to establish legal relations between the Administration and private individuals, transforming the contract into a normal instrument of legal administrative relations parallel to the administrative act.
The contract has consolidated as a privileged instrument of administrative action especially in the new sectors like the environment and urbanism that are characterised by a high degree of complexity and divergence between public and private interests.
In Europe, almost all of the member-states have resorted to consensus as a form of achieving environmental objectives. Belgium has negotiated agreements in environmental matters since 1970 and France was the first member state to conclude agreements in the area of environmental protection.
The increasing interest in these consensual instruments is based on the recognition that the concretisation of environmental policy needs complementary means different from those traditional ones that are based on unilateral and authoritative actions. Activity through a unilateral and repressive via (fine and the closing of industrial industries that pollute) have not always revealed themselves to be the best method of intervention in light of the high social and economic costs that they involve.
The utilisation of agreements and contracts has been an efficient way to promote the inter-commu-nication between government and the sectors in cause and has played an important role in the sense of having led entrepreneurs and industrialists to assume their responsibilities in relation to the environment.
Another important advantage that has stemmed from using agreements in environmental matters can be found in the fact that they offer a greater amount of freedom in order for industrialists to find viable solutions adaptable to their specific situations.
The consensual instruments can assume diverse natures and designations, from protocols, codes of conduct, declarations of intentions, agreements, administrative contracts, environmental policy contracts, etc. In this way they differ as to: the persons involved, the object, the status of the agreement and the role played by them in relation to the existing legislation.
The conception, negotiation and execution of the agreements must obey certain specific orientations in order to guarantee their effectiveness, credibility and transparency. Amongst those specificnesses one can underline those that are relative to the content, the fact that the agreements may foresee the possibility of voluntary admission, in the future, of collective or individual persons that did not enter in its drafting, the description with rigor of the objectives, discriminating the diverse phases, the phased approximation, evaluation and verification. Transparency is guaranteed by the special procedure that they are bound to and by their publication.
In Portugal, the closest figure to the environmental agreements that may be found in Europe, appeared in 1994 through the denominated Voluntary Adaptation Agreements to Environmental Legislation, also called Sector Agreements or Adaptation to Environmental Legislation Protocols. Through these the Administration agreed to tolerate, during the period in which these agreements were in force, the emissions produced by the adhering industrial units, at polluting levels that although progressively lower still reached quantities that were superior to the maximum legally admissible. The polluting units were allowed not to comply with the environmental norms during an adaptation period of their installations to the new rules.
The denominated Voluntary Agreements were not more than mere protocols or intentions without a contractual nature. The obligations assumed by the parties involved were not clear and there were no sanctions in the case of non compliance.
The Voluntary Agreements were in force during a two year period and the experience did not lead to the environmental results that were desired. One of the most negative criticisms made to the Voluntary Agreements were that they were illegal in light of there being no legal base to establish them and in the fact that they derogated environmental norms. However, the author of this article does not agree with these reasons. The environmental objectives that were to be reached with the Voluntary Agreements were those found in Decree Law n.º 74/90 whose article 40, n.º 3, foresaw that for the existing units at the time of its entering into force an adaptation period would be established for each sector of activity. Although the law stated that such a time limit should be established by the General Director of the Environment there was nothing that prohibited the recourse to the contractual via in order to reach the objective in accordance to the general principle found in article 179 of the Code of Administrative Procedure. The Voluntary Agreements were substituted by the Environmental Adaptation Contracts whose objective was the non exercise of the Administration’s sanctioning power. In effect, through them, the Administration promised not to demand the strict observance of the environmental rules during a time frame agreed to in order for the various companies to technologically adapt themselves to the new environmental objectives.
In the opinion of some authors the foundation for this type of agreement would be the margin of discretionary power that the Administration is allowed to exercise in order to initiate or not sanctioning procedures.
The present agreements, emerge as true contracts with very well defined objectives for both parties and establish sanctions for those who do not comply with the precepts and time tables in the adaptation chronogram. Amongst the sanctions, one can find the possibility of companies being excluded from the contracts if they persist in a situation of systematic failure to comply.
Although the Adaptation Contracts have surpassed many of the criticisms that were pointed out in relation to the Voluntary Agreements the truth is that some problems still remain that result from the non consideration of those that did not adhere to them, of the situations of unfair competition that they originate due to the non concretisation of the polluter pays principle and the absence of incentives that can be offered to the various companies in order for them to adhere to the agreements.
|Appears in Collections:||RevCEDOUA A. 3, nº 5 (2000)|
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