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U7
EASTERN AND CENTRAL
EUROPEAN JOURNAL ON
ENVIRONMENTAL LAW
VOLUME I6 ISSUE I
EASTERN AND CENTRAL EUROPEAN JOURNAL ON
ENVIRONMENTAL LAW, VOLUME IG ISSUE I
Published by:
Global law Association and the International Environmental Law
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©Global Law Association 2012

Contents
Provisions on penalties related to legislation on industrial

installations (Part 2; first part published in the previous
issue)
1. Hungary 1
2. Spain 27
3. The Netherlands 49
4. United Kingdom 79
Environmental developments
Country information
Bosnia and Herzegovina

WATER LAW (OFFICIAL GAZETIE OF THE FEDERATION
OF BOSNIA AND HERZEGOVINA, No. 18 of 11 May, 1998) 119
VOLUME I6 ISSUE I
Sanctions and procedures applicable to breaches of the legislation

on industrial emissions in Hungary
Executive Summary
In case of breaching the requirements laid down in the transposing legislation of the IPPC Directive
(Government Decree No. 314/2005 (XII. 25.)) on Environmental Impact Studies and Integrated
Environment Use Permits ('IPPC Decree'), administrative procedures can be conducted against IPPC
installations. In addition to the administrative liability, IPPC installations may be subject to criminal or
administrative (quasi) criminal liability. "'However, in Hungary, criminal and administrative (quasi)
criminal environmental offences are broad and cover general offences. In other words, the Criminal
5
Code.' and the Act on Petty Offences 5 6 (also called as administrative (quasi) criminal offences) do
not contain specific sanctions for the infringement of the transposing provisions of the IPPC Directive.
This suggests that in these cases the general rules of criminal and administrative (quasi) criminal
procedures are applicable.
Administrative procedures can be conducted alongside with criminal or administrative (quasi) criminal
procedures. " However, administrative (quasi)criminal and criminal procedures cannot be conducted
at the same time. 15
In practice, most of the environmental penalties with regard to industrial installations are
administrative in nature. Criminal procedures conducted against IPPC installations are rare.
The central administrative authorities responsible for environmental protection are the Ministry of
Rural Development and the National Inspectorate for Environment, Nature and Water. The Ministry is
responsible for supervising the activities of the National Inspectorate and the regional inspectorates.
The day-to-day matters and regulatory issues are dealt by the regional inspectorates at first instances
and by the National Inspectorates at second instance.
On the basis of the interviews conducted and in accordance with the current legislative framework,
administrative/ administrative (quasi)criminalcriminal sanctions in Hungary are deemed to be
proportionate, effective and dissuasive. As an example to the interpretation of the principle of
proportionality, the amount of administrative fines imposed on IPPC installations needs to be adjusted
to the severity of the environmental damage caused, the environmental pollution and the periodicity of
the illegal conduct.
With regard to the principle of effectiveness, most of the interviewees emphasised that a sanction is
effective if e.g. it contributes to achieve the aim of the legal act and/or forces the operator to fulfil
his/her legal obligations.
A sanction is considered as dissuasive, if it prevents the defendant and/or other operators from any
illegal activity in the future.
The table below indicates the provisions of the IPPC Directive covered by a sanction in Hungary.
Criminal and administrative (quasi) criminal sanctions are not listed in the table as there are no
specific sanctions in the Criminal Code, or in the Petty Offences Act, which would punish the
154 Note that civil procedures are not subject to the study.
155 Act IV of 1978- Criminal Code.
156 Act LXIX of 1999 on Petty Offences.
Is Environmental Protection Act, Article 107, 'the imposition of an environmental
fine does not free anyone from criminal,
administrative (quasi)criminal or civil liability, or from being obliged to limit, suspend or halt an activity, from realizing
protective measures or from restoring the natural or previous state of environment'.
158 Petty Offences Act, Article 1(2) '[...] no petty offence can be established if the action constitutes
a crime'.
5
EASTERN AND CENTRAL EUROPEAN JOURNAL ON ENVIRONMENTAL LAW
infringement of the transposing provisions of the IPPC Directive (see sections 3.1. and 3.3. for more
details).
Table 1: Enforceableprovisions covered by penalties in Hungary
Government Decree 314/2005,

Article 1(2) and (5); Article 2(3))
(Article 27(3))
(Annex VIII)

(Article 22(2))

(Article 23; Annex XI, point 4.a.)
6
VOLUME I6 ISSUE I
1. Applicable sanctions
The Hungarian Constitution 59 recognises and implements everyone's right to a healthy environment.
In line with the Constitution,' 60 Article 101(1) of the Environmental Protection Act' 6 ' sets that
'whoever endangers, pollutes or harms the environment with his activity or omission, or performs his
activity breaching environmental requirements shall bear the criminal, civil,1 62 administrative or
administrative (quasi)criminal responsibility defined by this Act or by other laws.' Those who breach
this general prohibition shall inter alia cease their misconduct, mitigate and remedy the damage
caused and restore the environment either to its prior state or to the state prescribed by law. The
polluter may also be held liable pursuant to Article 101(2) of the Environment Act for the cost of
prevention. Moreover he/she is obliged to inform the authorities of the polluting activity and refrain
from engaging in activities posing an imminent threat or causing damage to the environment.
Most of the environmental penalties with respect to industrial installations are administrative in nature.
The classification of administrative offences and sanctions related to environment are set in the
Environmental Protection Act and other sector specific legislation, such as in the IPPC Decree. In line
with Article 106 of the Environmental Protection Act, administrative liability applies when the
competent authority have not authorised the activity of an installation or the activity is performed in a
way that breaches environmental legislation or the decision of the competent authority. If the operator
fails to comply with environmental requirements, the competent authorities can impose administrative
sanctions, including a fine/or requiring the operator to perform or abstain from certain activity. The
level of fines often varies according to the level, weight and recurrence of the environmental pollution
and environmental damage caused.1 63 Administrative sanctions can be imposed both on legal and
natural persons. The Environmental Protection Act operates with a strict liability system making the
entities causing environmental damages responsible irrespective of negligence or fault.
The IPPC Directive is transposed by Government Decree 314/2005 (XII. 25.) on Environmental
Impact Assessment and Integrated Environment Use Permits (IPPC Decree'), which sets inter alia
offences provisions and their related administrative sanctions.
According to the transposing legislation, the imposed administrative sanctions can lead to a fine (up to
Euros 1,826 or Euros 365 per day) 6' and the limitation, suspension or prohibition'6 of the
continuation of the illegal conduct. 66
' The competent authorities may also oblige the operators to
comply with the conditions set in the permit, prepare a programme of measures or carry out an
environmental review. Moreover, the competent authorities may withdraw the environmental or
integrated environmental permit of the operator.
Table 2 below indicates the types of administrative and criminal offences and related penalties in
Hungary for each of the key enforceable obligations under the IPPC Directive.
Article 18 of Act XX of 1949 - Constitution of the Republic of Hungary.
1o It is noted that in January 2012 a new Constitution will enter into force.
Act LIII of 1995 - Environmental Protection Act.
162Civil liability is not subject to the current legal study.
Act No LIII of 1995 - Article 106(1).
164 Rules applied for imposing fines: (1) In accordance with Article 26(3) and Article 26(1)
of the IPPC Decree, when an
installations is operating without an integrated environmental permit or without an environmental permit, the competent
authority, having regard to the danger of illegal conduct to the environment may impose a fine of Euros 182 to 365 per day
for the period the installation was operating without a permit. (2) In accordance with Article 26(4) when an installation fails
to comply with the permit conditions while carrying out activities, or do not comply with the administrative decisions the
competent authorities may inter alia oblige the operator to pay a fine of Euros 730- 1,826.
16' The main difference between prohibition and suspension is that while suspension is temporary in nature, prohibition is
something definitive
166 IPPC Decree Article 26(1): in case of operating without integrated environmental permit, or without an environmental
permit (Article 26(1) and (2)); endangering the environment or causing environmental pollution or non-compliance with
administrative decision (Article 26(5)); non-compliance with administrative decisions (Article 26(5)).
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Illegal activities or omissions can constitute petty offences (also called administrative (quasi)criminal
offences). The sanctions imposed for administrative (quasi)criminal offences are similar to those for
criminal offences; therefore sanctions could for example include imprisonment or fines. 168 With regard
to the IPPC installations, the so-called 'environmental protection petty offence' is the most relevant.169
According to Article 148 of the Petty Offence Act, a fine up to Euros 547 (HUF 150,000) can be
imposed in cases of operating without an environmental permit or non-complying with its conditions.
According to the Hungarian legal system, only natural persons can be liable for petty offences. In case
a legal person breaches its legal obligations, the person whose act or omission caused the breach will
be liable.
For most serious breaches of environmental obligations, criminal liability may arise. Typical sanctions
pursuant to Hungarian criminal law can include principle and supplementary punishments, such as
imprisonment or a fine. 170 The Hungarian Criminal Code does not cover offences which relate
specifically to infringements of the IPPC Directive, but it includes general offences which can be of
relevance, such as 'damaging the environment', 171' damaging the nature', 172 'illegal deposition of
waste' 173 and 'danger to the public'. 174
As an example, in case of the offence 'damaging the environment', a person responsible for any
pollution of the earth, the air, the water, the biota (flora and fauna) and their constituents, resulting in
(i) their endangerment (ii) damage to such an extent that its natural or previous state can only be
restored by intervention, or (iii) damage to such an extent that its natural or previous state cannot be
restored at all, is guilty of a felony and can be punishable of imprisonment up to 8 years.
The criminal liability of legal persons was introduced in the Hungarian legal system in 2001, by Act
CIV of 2001.175 Three different sanctions can be imposed for crimes committed by legal persons: (1)
the dissolution of the legal person, (2) constraining the activity of the legal person and (3) fines. 176
The way the fines are calculated is as follow: three times the benefits of the legal person from the
illegal conduct, but at least HUF 500 thousands (Euros 1,862.85).
2 Administrative procedure
2.1 General elements on the legal tradition and potential evolution
Since the reform of the Hungarian criminal law in 1955, administrative sanctions and offences have
1' Article 13(1) of Act LXIX of 1999: Penalties applicable for petty offences: a.) imprisonment, b.) fine. Measures
applicable for petty offences: a.) prohibition from driving, b)confiscation of goods, d.) notification, e.) expulsion.
List of petty offences which could be relevant with regard to IPPC installations:
* Environmental protection petty offence (Act LXIX of 1999, Article 148);
* Nature protection petty offence (Act LXIX of 1999, Article 147);
* Water pollution petty offence (Government Decree 218/1999 (XII. 28.), Article 126);
* Petty offence of breaching water law requirements (Government Decree 218/1999 (XII. 28.), Article 125); and
* Petty offence of breaching flood protection and/or inland flood protection requirements (Government Decree
218/1999 (XII.28.), Article 127).
'oCriminal Code Article 38: (1) Principal punishments are: 1. imprisonment, 2. labour in the public interest, 3. Fine 4.
Prohibition from profession 5. Prohibition from driving vehicles and 6. Expulsion. Supplementary punishments are: 1.
prohibition from public affairs and 2. Banishment.
Act IV of1978, Article 280.
172 Act IV of 1978, Article 281.
Act IV of 1978, Article 281/A.
174 Act IV of 1978, Article 259.
Act CIV of 2001 on Criminal Measures Applicable against Legal Persons.
Article 2(1) and Article 3 of Act CIV of 2001.
I0
VOLUME I6 ISSUE I
been separated from criminal law." Administrative sanctions can be imposed by competent
administrative authorities within the framework of administrative procedures to address unlawful
activities. Administrative sanctions are onerous in nature and can be executed.
On the basis of their functions, administrative sanctions can be grouped as follow:

- Administrative sanctions enforcing administrative provisions: e.g. Article 26(4) of
Government Decree 314/2005 (XII. 25.) - complying with the conditions set in the permit;
- Preventive administrative sanctions: e.g. Article 101(2) of Act LIII of 1995.- being liable for
the costs of prevention of the polluting activity;
- Repressive administrative sanctions: e.g. Article 26(1) of Government Decree 314/2005 (XII.
25.) - limiting the illegal conduct;
- Compensatory administrative sanctions: e.g. Article 26(4) of Government Decree 314/2005
(XII. 25.) -paying a fine ofEuros 730- 1,826.
2.2 Inspections
2.2.1 General information
In Hungaiy, environment related inspections are performed by administrative bodies for

environmental protection.178 The main administrative authorities for environmental protection at
countiy level are the Ministry of Rural Development1 79 and the National Inspectorate for
Environment, Nature and Water. 18 The National Inspectorate for Environment, Nature and Water and
the regional inspectorates are responsible for the day-to-day matters and regulatoiy issues, whereas the
Ministiy of Rural Development supervises such activities.8 At first instance, environment-related
182
matters are mainly managed by the ten Regional Environment, Nature and Water Inspectorates.
Most of the control carried out by the inspectorates takes place according to annual plans. In Hungay
inspection plans are not generally available to the public."
The ten regional inspectorates are competent for the enforcement of the transposing legislation of the
IPPC Directive. In 2010, the estimated number of staff members working on IPPC related inspections
was 145. The number of IPPC installations subject to administrative control was about 1119. In 101
' Fazekas Marianna - Ficzere Lajos (edit.), 'Hungarian Public Administration Law' (Magyar kbzigazgatisi jog. Altalinos
r6sz), 2006, Osiris Kiad6, Budapest pp. 540-553.
'7 The International Comparative Legal Guide to Environment Law 2010, 'Gabor Hugai and Andras Komaromi: Hungary',
129 Before Ministry of Environment and Water:

http://www.kormany.hu/hu/videkfejlesztesi-miniszterium
so The National Environment, Nature and Water Inspectorate is mainly a second instance authority.
http://www.orszagoszoldhatosag.covhu/index.nhpakt menu=78&bemul-3
181 The International Comparative Legal Guide to Environment Law 2007, Ivan Bartal,
bqt://!www.iclg.couk/khadmin/Publicaions/Sdf'1 177dpff
182 szak-dunintuli Komyezetv6delmi, Term6szetv6delmi 6s Vizuigyi Felligyel6s6g, Gy6r
Nyugat-dunintuli Komyezetv6delmi, Term6szetv6delmi 6s Vizilgyi Felligyel6s6g, Szombathely
Koz6p-dunintuli Krnyezetv6delmi, Term6szetv6delmi 6s Vizilgyi Felligyel6s6g, Sz6kesfeh6rvar
D61-dunantuli Kbrnyezetv6delmi, Term6szetv6delmi 6s Vizligyi Felligyel6s6g, Pecs
Kbz6p-Duna-vblgyi Krnyezetv6delmi, Term6szetv6delmi 6s Viziugyi Felligyel6s6g, Budapest
Tiszantuli Kornyezetv6delmi, Term6szetv6delmi 6s Vizilgyi Felligyel6s6g, Debrecen
Fels6-Tisza-vid6ki Kornyezetv6delmi, Term6szetv6delmi 6s Vizuigyi Felligyel6s6g, Nyiregyhaza
Eszak-magyarorszigi Krnyezetv6delmi, Term6szetv6delmi 6s Vizuigyi Felligyel6s6g, Miskolc
Kbz6p-Tisza-vid6ki Krnyezetv6delmi, Term6szetv6delmi 6s Vizuigyi Felligyel6s6g, Szolnok
Als6-Tisza-vid6ki Kornyezetv6delmi, Term6szetv6delmi 6s Vizligyi Felligyel6s6g, Szeged
1' Commission Staff Working Paper, Report on the implementation of Recommendation 2001/33 I/EC providing minimum
criteria for environmental inspections, SEC (2007) 1493.
184 In 2008 this number was 979. Resource used: http://eea eionet.europa.eu/Public/ir/eionet-
circle/reportinglibrary?l=/ipoc/ic vermitting&vm=detailed&sb=Title
II
cases, the administrative authorities required the operators to take actions and in 134 cases imposed
administrative fines. 18
2.2.2 Key elements of the inspection procedures
Regional inspectorates can gather information about the activities of the IPPC installations through
regular administrative control. Act CXL of 2004 on the general rules of public authority procedures
and services, sets the main rules for administrative control. Environment related inspections are
regulated by Act LIII of 1995 on Environmental Protection," whereas the IPPC Decree lays down
specific rules applicable to the administrative control of IPPC installations.
Generalrules on administrative inspections
In order to investigate and assess the environmental impacts of the specific activities and check if the
operator complies with the legal requirements, environmental audits can be carried out. 1 If as a result
of the audit, the regional inspectorate detects that environmental damage was caused, or there was a
risk of such damage, it may fully or partially restrict or suspend the activity of the installation. 8
In addition to the environmental audit, the operator might evaluate its own environmental performance
in form of the so-called 'environmental protection performance evaluation' and request the regional
inspectorates to approve it. 189
Moreover, operators shall inform the regional inspectorates on any significant changes concerning the
activity of the installation.190 In case of non-compliance with this obligation, the regional inspectorates
may suspend the activity of the operator. The regional inspectorates shall also inspect ex-officio the
changes in the conditions of the environmental permit. In case the conditions significantly deviate
from the conditions existing at the time of permitting, the inspectorate shall order an environmental
audit. 191
IPPCspecific rules on administrativeinspections
In addition to the general rules, the IPPC Decree lays down specific rules applicable to the
administrative control of IPPC installations. In accordance with Article 22(1) of the IPPC Decree, the
regional inspectorates may introduce a so-called 'trial operation' for the installations. Before the end
of the 'trial operation', but at the latest six months after it started, the competent authorities shall
examine if the operation of the installation is in compliance with the requirements of the integrated
environmental permit. For this purpose, the operator is required to provide the authorities with the
following documents: document listing the equipments used in the installation, documents proving
that the installation operates in compliance with the requirements of the integrated environmental
permit.
Integrated environmental permits are valid for a period of at least 5 years but the installations get
permits for a period more than 5 years as well. However, each 5 years the Regional Environment,
'1 Note that the numbers are estimated numbers, gathered through an interview with a representative of the Ministry of Rural
Development.
186 International Comparative Legal Guide Series, Environment Law, 2007, Hungary: According to Article 64 of the
Environmental Protection Act, the enforcement of the administration of environmental protection is included within the scope
of the administration of environmental protection.
1' Article 73(1) of Act LIII of 1995.

'Article 74(3) of Act LIII of 1995.
1" Article 77 of Act LIII of 1995.
'Article 82(1) of Act LIII of 1995.
'' Article 82(2) of Act No LIII of 1995.
12
VOLUME I6 ISSUE I
Nature and Water Inspectorates have to carry out an administrative control in accordance with the
rules applicable to the environmental audit.
In accordance with Article 22(3) of the IPPC Decree, the administrative authorities shall carry out
'site- visits' on a yearly basis in order to examine the execution of the requirements of the integrated
environmental permit. At the end of the proceeding, the competent authorities shall prepare a report of
proceedings. As the IPPC Decree does not specify the rules of site inspections, the general rules of Act
CXL of 2004 are applicable. 19 2 As a general rule,193 the operator shall be informed about the
inspection in advance. Unless stated differently,19 4 the person concerned can attend the inspection,
which in principle is carried out during the operation of the installation.195 The following table
summarizes the rights and obligations of the inspectorates during the site inspection:
Table 3: Rights and Obligationsof inspectors
11. entry preparing a report of proceedings

12. access to the file 6. returnig documents and physical evidences to the
13. monitor/examine the working process or other persons concerned or submitting them to the
objects competent authorities
14. request for information
15. record image and sound
16. sampling
17. seizure
18. other
According to the IPPC Decree, depending on the result of the different type of administrative controls,
the competent authorities may take the following administrative measures:
-Administrative measures laid down in Article 20(9) and (10):
o obliging the operator to carry out environmental performance review; or
o amending the requirements of the integrated environmental permit.
- Administrative measures laid down in Article 26:
o imposing sanctions (see above in Table 1).
2.2.3. The inspectors' enforcing powers
There is no specific provision identified with regard to the inspectors' enforcing powers in the IPPC
Decree, thus the rules of Act LIII of 1995 and Act CXL of 2004 are applicable.
In accordance with the general rules of Act CXL of 2004, the regional authorities may order temporary
safety measures in form of seizure or pledging for cases when there is a risk that the operator does not
fulfil his legal obligations. 197
Moreover, during the inspection, the operators are obliged to provide the inspectors with access to the
installations. 198 If it is necessary for the safe proceeding or the success of the administrative procedure,
192 Procedural rules applied on site visits are laid down in Article 56- 57/B and 88-92 of Act CXL. of 2004. Note that
Article
56-57/B regulates a specific type of inspections (szemle') which is applicable when the observation of the person, movable
property or immovable property is required in order to cleaning up the matters of fact. In accordance with Article 88(4),
procedural rules laid down in Article 56-57/B are also applicable to on the spot/site inspections.
Article 57(1) of Act CXL of 2004.
'94 Article 57(5) of Act CXL of 2004.
'Article 57/A(1) of Act CXL of 2004.
Resource used: http://www.kszk. ov.hutdatacms18125/7 tema IIts ee s
Article 29/A of Act CXL of 2004.
Article 57/A(3) of Act CXL of 2004.
I3
the regional inspectorates may ask the police to attend. 199 In case the person concerned with the
administrative procedure impedes the investigation, the regional inspectorates can seize the relevant
physical evidences200 and impose administrative fines on the person.2 01 Moreover, if immediate
actions are required (i.e. in case of danger of death) the regional inspectorates may enter in the
installations without the agreement of the persons concerned.202 This kind of control would require the
approval of the public prosecutor, and the attendance a police official and an official witness, unless
the process of asking for the approval of the public prosecutor would cause significant delays.
Enforcement of the decision of administrative authorities
As a general rule, the regional inspectorates shall ex-officio check if the operators fulfilled their
obligations set by an administrative decision. In case of concern, the regional inspectorates may carry
out an administrative control.203 If the operator does not comply with the administrative decision, the
regional inspectorates may start the execution procedure. The execution procedure might inter alia
aim at:
- enforcing the fulfilment of a pecuniary obligation, such as payment of an environmental
204
fine; or
- ensuring that the operator carries out certain activity, such as compliance with the conditions
set in the permit.20
The general rules of execution procedures are laid down in Act LIII of 1994 on judicial enforcement
procedures.
As a specific rule, the decisions of the administrative authorities made concerning emergencies that
pose hazard to or damage the environment shall be executed without delay, regardless of the appeal
procedure. 206
2.3. Appeal against the administrative decision
Any action or decision taken by the regional inspectorates can be appealed before the National
Inspectorate for Environment, Nature and Water or a judicial court. The IPPC Decree does not include
provisions on appeals against administrative provisions, thus the general rules of Act CXL of 2004 are
applicable. Appeal procedures can start on the operator's request and/or ex-officio. The following
table summarizes the different appeal proceedings identified. These are further described below.
Table 4: Appealproceedings againstadministrativedecisions
oopIit.11
o |ci sions
.I.l r II |
Appeal proceeding: Proceeding within the competence of the authority taking
Articles 98- 108 the administrative decision:
Article 114
Judicial review of administrative suit: Surveillance procedure:
Articles 109- 111 Article 115
Retrial procedure: Proceeding on the basis of the decision of the Constitutional
Articles 112-113 Court:
Article 117
Proceeding on the basis of the objection of the prosecutor:
.'Article 57/B(1) of Act CXL of 2004.

200 Article 57/B(2) of Act CXL of 2004.
203 Article 129 of Act CXL of 2004.
204 Article 132-137 of Act CXL of 2004.
205 Article 140-142 of Act CXL of 2004.

206 Aticle 95 of Art 1,111 of 1995
14
VOLUME I6 ISSUE I
Article 118-119
Appeals, oie reqes of11A
the oprtos x offci
Request for:
- Revision of an administrative resolution
- Complementing an administrative resolution
- Replacement
- Annulment
2.3.1 By the operator
Appeal proceeding: The operator might appeal against any first instance decision of a regional
inspectorate. The appeal shall be filed to the regional inspectorates,207 which submit the appeal
together with the supporting documents to the National Inspectorate for Environment, Nature and
Water within 8 days. The National Inspectorate may approve, amend or annul the first instance
decision. In case of annulment, the regional inspectorates may be ordered to conduct a new
administrative procedure.
Judicial review of administrative suit: Any final decision of the competent authorities might be
reviewed by judicial courts, based on the request from the operator or other actors of the procedure
within 30 days. The competent administrative court might annul the final administrative decision and
in case of need may order the administrative authority to conduct a new procedure.
Retrialproceeding: The operator might ask for the retrial of the procedure within 15 days from the
appearance of e.g. a new information or fact. The request for retrial is decided by the regional
inspectorates, which may amend or withdraw the final administrative decision or take a new decision.
2.3.2 By a person other than the operator
Proceeding within the competence of the authority taking the administrative decision: Both first and
second instance authorities may amend or withdraw their decisions ex-officio in case of non-
compliance with the legal requirements, within one year from communicating the decision with the
parties.
Surveillance procedure: Within its ex-officio monitoring activities, the National Inspectorate may
annul or amend the unlawful decisions of the regional inspectorates.
Proceeding on the basis of the decision of the Constitutional Court: Within its competence, the
Constitutional Court may declare that a legal act is unconstitutional and thus exclude its application
retrospectively. Following such decision, anyone can use his/her right of complaint and ask the
administrative authorities to amend or annul their decisions.
Proceeding on the basis of the objection of the prosecutor: The public prosecutors might object to any
decision, proceeding or omission of the competent authorities.
In addition, both the competent authorities and the parties might ask for the annulment, replacement,
revision and/or completion of an administrative decision.208
3 Judicial procedure (if relevant-with a focus on criminal sanctions)
207 Unless the regional inspectorate decides to correct, complement, amend, withdraw its decision, or dismiss the appeal
without examination (e.g belated appeal).
208 Article 121 of Act CXT, of 2004
15
3.1 General information209
As noted above, there is no specific IPPC related criminal offence. Consequently, the general rules of
criminal procedures are applicable, which are laid down in Act XIX of 1998 (Criminal Procedure Act).
In practice, criminal procedures against IPPC installations are rare. Therefore, the rules described
below are rather theoretical.
The court may only ascertain the criminal liability of an operator against whom an accusatory
instrument was filed and only for acts contained in such instrument.21 In principle, the following
actors have the right to initiate and conduct a criminal procedure: court, public prosecutor,2 11 the
investigative authorities2 12 and under certain circumstances the substitute private accuser.2 13 The
regional inspectorates shall ex-officio inform the investigative authorities in case of detecting the
suspicion of a criminal offence. In 2010, there was only one case when a regional inspectorate initiated
a criminal procedure against an IPPC installation. 214
The operators are entitled the following rights during the different stages of the criminal procedure:
Table 5: Rights ofoperators during the criminalprocedure
Accused In the course of investigation. Article 43(2) of the Criminal Procedure Code:
- receiving information on the suspicion, on the charge and any changes,
-be present at actions and inspects,
- pesntfatsatan stage ofnna
Rlthepoeue ak oin n
-be granted sufficient time and opportunity for preparing the defence,
file for legal remedy,
- receiving information on his rights and obligations during the criminal
proceeding,
- present facts at any stage of the procedure, make motions and
objections.
of
Ie In the course court procedure. Article 43(3) of the Criminal Procedure Code:
- contacting the defence counsel (if foreign the consulate) and
communicate with them without control,
- written and verbal communication with relatives under certain control,
or with other persons under legal conditions laid down in Article 43
(3)(b).
Relevant facts for the application of criminal statutes and legal regulations on criminal proceedings are
covered by evidences.215 I pection can be ordered the andnsibiityeo
cout the o urt or the prosecutor to
serve as evidence.216 217 Il order to ensure the effectiveness of the criminal proceedings, coercive
209 Special rules are applicable to the criminal proceedings against inter aliajuvenile offenders (Part 5 of the Criminal Code),
Military criminal proceedings (Chapter XXII) Procedures based on private accusation (Chapter XXIII), procedures against
absent defendants (Chapter XXV) and Procedures against persons enjoying immunity (Chapter XVIII).
20Article 2(3) of Act XIX of 1998.
21Article 28(1) of Act XIX of 1998: 'The prosecutor act as the public accuser'.
22Article 6(1) of Act XIX of 1998 : It is the responsibility of the court, the prosecutor and the investigating authority to
initiate and conduct the criminal proceedings if the conditions set forth in this Act prevail.
213 Article 53(1) of Act XIX. of 1998: '[...] the victim may act as a substitute private accuser if: (a) the prosecutor or the
investigating authority rejected the report or terminated the investigation, (b) the prosecutor partly omitted the indictment, (c)
the prosecutor dropped the case, (d) the prosecutor did not state any criminal offence that should be prosecuted based on the
public accusation, consequently he did not file a charge, nor did he take over the representation of the indictment [...], (e) the
prosecutor dropped the charge in the trial because in his judgement, the criminal offence should not be prosecuted based on a
public accusation.'
214 More information on the case is included in one of the case-studies.
215 The following constitute means of evidence in the Criminal Procedure Act: witness,
expert opinion, physical evidence,
documents and pleadings of the defendant.
216 Rules on inspections are described under Article 119(1) of Act XIX of 1999.
16
VOLUME I6 ISSUE I
measures can be applied.218
Unless otherwise stated in the Criminal Procedure Act, criminal proceedings start with an
investigation. Investigation is ordered and carried out by the public prosecutor and/or the investigating
authorities 219 on the basis of the data coming to the cognisance of the prosecutor, or the investigating
authority within their official competence or in via a complaint.220
The investigation must commence as soon as possible, and in principle must be concluded within 2
months. 2 21 As an investigatory action, the prosecutor and/or the investigating authority may inter alia:
- collect data 22 2
- interrogate the operator.223
In principle, anyone affected may challenge the decision of the prosecutor and/or the investigating
authority within 8 days.224
The prosecutor is responsible for filing the indictment to the court. The filing of the indictment cannot
be subject to appeal. If the prosecutor has rejected the protest of the victim concerning the dismissal of
the complaint or the termination of the investigation, a substitute private accusation may be lodged.
Moreover, if the prosecutor has partially omitted the indictment, the victim may stand as a substitute
221
private accuser.
The court holds a trial to establish the criminal liability of the accused. The panel of the court adopts
its decision after deliberation by way of voting. 226
3.2 Possibilities of appeal
Act LI of 2006 introduced a tertiaiy appeal system in Hungaiy. In accordance with Article 13 of Act
XIX of 1998, local courts and county courts are the first instance courts.
Second instance courts are:
- County courts in cases falling within the competence of local courts,
- Court of appeals (tribunals) 227 in cases falling within the competence of county courts,
- The Supreme Court in cases when the law allows appeal proceedings against the decisions of
the courts of appeal (tribunal).
Third instance courts are:
- Courts of appeals (tribunals) in cases that were decided at the county courts at the second
instance,
217 Other evidentiary procedures are: Questioning on the scene, Reconstruction, Presentation for identification, Confrontation,
and Concurrent hearings of experts.
218 Coercive measure can infringe or restrict the fundamental rights of the citizens; in particular,
coercive measures might
restrict the freedom of movement ownership, property rights, right to personal liberty. Under the Criminal Procedure Act, the
following coercive measures can be imposed: custody, pre-trial detention, home curfew, house arrest and keeping away,
temporary involuntary treatment in a mental institution, measure to warrant the prohibition to travel abroad, bail, search,
body search and seizure, order to reserve date recorded by a computing technical system, sequestration and precautionary
measures and securing the order of proceedings.
219 Investigation falls under the exclusive competence of the public prosecutor in certain criminal offences listed in Article
29, which includes inter alia the following criminal offences: criminal offences committed by persons enjoying immunity due
to holding a public offence, murder against a judge, criminal offences committed by a sworn members of the police.
220 Article 170(1) of Act XIX
of 1998.
221 Rules of the deadlines for carrying out inspections are laid down in Article 176(1)
and (2) of Act XIX of 1998.
222 Applicable rules are laid down in Article 176(1) and (2)
of Act XIX of 199.
223 Applicable rules are laid down in Articles 179-180 of Act XIX of 1998.
224 Article 195(1) of Act XIX of 1998
225 Applicable rules are covered by Article 229(1) of Act XIX of 1998.
226 Article 256(3) of Act XIX of 1998.
222The total number of courts of appeals (tribunals) in Hungary is 5: Tribunal of the capital, Tribunals of Pecs,
Gydr,
Debrecen and Szeged.
17
- The Supreme Court in cases where the court of appeals (tribunals) decided on second instance.
Appeal procedure: The judgement of the court of first instance or any non-conclusive ruling of the
court may be appealed228 at the court of second instance.229 The court of second instance may uphold,
modify or repeal the judgement of the court of first instance, or reject the appeal.230 The conclusive
decision of the court of second instance might be appealed231 at the court of third instance.232 The
court of third instance might uphold, modify, or repeal the judgement of the court of second instance
contested with the appeal, or reject the appeal.233
Re-trial: The final judgment of the court may be subject to re-trial if e.g. new evidence is found which
makes if probable that the defendant shall be acquitted.2 34 Depending on the outcome of re-trial, the
competent court might repeal the judgement or reject the re-trial if it is found unsubstantiated. 235
Review: The final conclusive decision of the court might be subject to the review of the Supreme
Court.236 237 The Supreme Court may uphold in effect, modify or repeal the contested decision.23
Legal remedy on legal grounds: The Prosecutor General may report a legal remedy to the Supreme
Courts, which may reject the legal remedy, or find that the legal ground of the remedy is substantiated
and thus i.e. acquit the defendant, or order the court to conduct a new procedure.239
Harmonisationprocedure: If as a result of its harmonisation procedure, the Supreme Court finds that a
doctrine on which the court established the criminal liability of the operator is unlawful it may repeal
the unlawful disposition, acquit the defendant and terminate the criminal procedure.240
3.3 Administrative (quasi) criminal procedures
General information
There is no specific IPPC related administrative (quasi) criminal procedure, thus the general rules of
Act LXIX of 1999 are applicable.
Administrative (quasi)criminal procedures start with a complaint or ex-officio by the relevant

administrative authorities. With regard to IPPC related petty offences, the main administrative
authorities are the notaries (e.g. for 'environment protection petty offence') 241 and the nature
228 The following parties might be entitled to appeal: a.) accused, b.) the prosecutor, c.) the substitutive private accuser, d.)
the counsel for the defence, e.) the heir of the accused, against orders granting a civil claim, f.) the legal representative, the
spouse or common-law spouse of an accused of legal age against an order for involuntary treatment in mental institution, g.)
private party, against whom a disposition has been made in the verdict, in respect of the relevant order, h.) those against
whom a disposition has been made in the verdict, in respect of the relevant order.
231 The following parties have the right of appeal under Article 367/A (1): the accused, the prosecutor, the substitutive private
accuser, the defence counsel and the legal representative, spouse or common-law souse of the accused of legal age, against
the order of involuntary treatment in a mental institution.
232 Article 367/A(1) of Act XIX of 1998.
237 As an example, the final conclusion of the court is subject to review if the defendant was acquitted of the procedure
terminated, the criminal liability of the defendant established or the involuntary treatment in mental institution ordered in
violation of the criminal substantive law.
238 Article 426-428 of Act XIX of 1998.
239 Article 431-438 of Act XIX of 1998.
240 Article 439- 445 of Act XIX of 1998.
241 Article 32 of Act TXIX of 1999
18
VOLUME I6 ISSUE I
protection authorities (e.g. for 'nature protection petty offence').242 In principle, the deadline for
completing administrative (quasi) criminal procedures is 30 days. 243
Enforcement powers
If the administrative authorities notice the illegal conduct during an administrative control, they can
impose a fine and process the administrative (quasi) criminal procedure on the site, unless additional
evidence is required. 244
Appeals
Complaint against decisions related to administrative proceedings: The operator and his/her legal
representative as well as any person subject to administrative fine might lodge a complaint against the
procedural decision of a competent administrative authority. The public prosecutor may decide reject
or withdraw the administrative decision.245
Complaint against the administrative decision: The operator, his legal representative or the defence
counsel might object the decision of the administrative authorities.2 4 6 On the basis of the objection, the
administrative authority may withdraw or amend the decision. If the administrative authority does not
agree with the objection, it submits the motion to the competent local courts which may maintain or
amend the decision of the administrative authorities. 247
Review: The final conclusive decision of the court might be subject to judicial review. The competent
first instance court might maintain or withdraw the decision of the court of first instance.248
Proceeding on the basis of the objection of the prosecutor: Based on the objection of the public
prosecutor, the administrative authority may withdraw its decision. In case of disagreement, the
administrative authority submits the objection to the competent courts. The court may approve the
objection of the prosecutor and order the administrative authorities to conduct a new procedure in
accordance with the objection of the prosecutor.24 9
4 Synergies between administrative, administrative (quasi) criminal and

criminal procedures
As noted above, administrative procedures can be conducted alongside with criminal or administrative
(quasi) criminal procedures. However, administrative (quasi)criminal and criminal procedures cannot
be conducted at the same time.
The table below summarizes the procedural link-if any- between administrative, administrative (quasi)
criminal and criminal procedures.
Table 6 Procedurallinks between administrative, administrative(quasi) criminal and criminalprocedures
242 Article 35 of Act LXIX of 1999.

243 Article 82 (4) of Act LXIX of 1999.
244 Article 133 of Act LXIXof 1999.
245 Article 86 (3) and (4) of Act LXIXof 1999.
246 Article 88 (1) of Act LXIXf 1999.
247 Articles 88-89, 93-100 of Act LXIX of 1999.
248 Articles 103- 110 of Act LXIX of 1999.
249 Article 91 of Act TXIX of 1999
'9
Administrative (quasi) criminal and criminal procedures: In accordance with Article 1(2) of Act
LXIX of 1999 on petty offences, no petty offence can be if the action constitutes a crime. Moreover,
Article 83(1)(e) of the Petty Offence Act requires the administrative authorities to cancel
administrative (quasi) criminal procedure if there is an on-going criminal procedure in place against
the operator for the same illegal conduct, or the liability of the operator for the same illegal conduct
has already been declared within a previous criminal procedure. In accordance with Article 6 of the
Criminal Procedure Code, no criminal proceeding can be conducted against an operator who has been
declared liable in a court decision within the framework of an administrative (quasi)criminal
procedure.
Administrative and administrative (quasi)criminal/criminalprocedures: According to Article 107 of

the Environmental Protection Act, the imposition of an environmental fine does not free anyone from
criminal, administrative (quasi)criminal or civil liability, or from being obliged to limit, suspend or
halt an activity; realizing protective measures or restoring the natural/previous state of environment'.
Thus, an administrative procedure can be conducted along with criminal and/or administrative
(quasi)criminal procedures.
There is no legal rule applicable to the procedural links between administrative and criminal/quasi-
criminal procedures. In practice, criminal/administrative (quasi) criminal procedures often follow
administrative procedures. This can be explained by the fact that the suspicion of a criminal offence/
administrative (quasi) criminal offence is often a result of an administrative procedure or becomes
evident within the framework of an administrative procedure, e.g. during administrative control.
Lodging a criminal/ administrative (quasi)criminal procedure does not suspend on-going
administrative procedures, in other words the different procedures can be conducted in parallel.25 0
Based on the findings of the structured interviews it seems that the main reason for the limited number
of criminal procedures against IPPC installations is the lack of knowledge. In other words, in most
cases administrative authorities are not aware of the possibility of initiating criminal procedures.
Moreover, no specialised unit exists within the office of the public prosecutor/investigated authorities
dealing with environmental criminal offences. This situation will be changed in the future according to
one of the judges of the Supreme Court, who emphasized that it is planned to set up a department
within the Prosecution Office of the Prosecutor General dealing exclusively with environment related
offences.
It is noted, that court procedures against IPPC installations often take place in form of administrative
court procedures. In accordance with Article 109 of Act CXL of 2004 on administrative procedures,
IPPC installations may appeal against the conclusive administrative decision before the competent
administrative courts. According to Article 326(9) of Act III of 1952 on civil procedures, the
competent administrative courts at first instance are the county courts. In principle there is no
possibility to appeal against the decision of the court. However, on the legal basis of Article 340/A(2)
of Act III of 1952, the Supreme Court may review the decision of the administrative court. In
accordance with Article 340/A(3) of Act III of 1952, the IPPC installations may also ask for retrial.
250Information for this section was gathered through conducting interview with a representative of the Ministry of Rural
Development.
20
VOLUME I6 ISSUE I
5 Conclusions
Proportionality
Article 106 of the Environmental Protection Act requires the administrative authorities to adjust the
amount of administrative fines to the severity of the environmental damage caused, the environmental
pollution and the length and periodicity of the illegal conduct. The IPPC Decree also states that the
level of fines should be proportionate to the negative environmental impacts of operators' activities.
In line with this above requirement, the competent authorities may impose fines/day for the period
while the installation was operating without an environmental permit or without the performance of
the preliminary environmental impact assessment. 251
In addition to these legal conditions, some authorities suggested to take into consideration the financial
capacity of the IPPC installations while imposing sanctions. They argued that in case of too high
sanctions, the operators may close down the installations without restoring the environment, which is
contrary to the main aim of the IPPC Decree.
One of the regional inspectorates argued that authorities shall impose more stringent sanctions on
IPPC installations than on installations not falling under the obligation of obtaining an integrated
environmental permit. According to the interpretation of the regional inspectorate, IPPC installations
often cause more severe damage to the environment, than non-IPPC ones. The authority illustrated its
argument through the following example:
uhii 11
r|i I I I I I I nlfaI11| tfi l || rI |
Ip-I IIt1h R m iat ~ ~ tr~i
According to most of the practitioners,2 the Hungarian legislation provides enough room for
adjusting the sanctions to the illegal activity of the IPPC installation; however some argued that
sanctions would be more efficient if taking the benefits gained from the illegal conduct and/or the
costs of restoring the environment into consideration.
Those practitioners who did not find the current system of administrative sanctions proportionate
enough argued that Euros 730 (HUF 200,000) as a minimum limit is too strict for some minor cases of
non-compliances with permit conditions, whereas the maximum limit of Euros 1,826 (500,000) is too
low for more serious breaches, or breaches which are repeated periodically.25 3 In other word, the range
of possible fines set by the legislation is too narrow.
According to Article 23 of the Petty Offences Code, sanctions and measures must be adjusted to the
severity of the illegal conduct. While imposing administrative (quasi)criminal sanctions, the
authorities must take into consideration the personal circumstances of the defendants and check if the
operator has carried out similar or identical administrative (quasi)criminal offence during the past two
years.
The Criminal Code reflects the principle of proportionality as it requires criminal sanctions to be
251 Article 26 (3) of the IPPC Decree.
252 Information gathered through the results of an informal questionnaire sent to the regional authorities.
253 This example refers to the provisions of Article 26 §(3) of the IPPC Decree.
21
proportionate to the danger of the illegal conduct to the environment and the society, the degree of
culpability and to other aggravating and mitigating circumstances. 254
Effectiveness
According to most of the regional inspectorates, an administrative sanction can be seen as effective if:
* it contributes achieving the aim of the legal act;
* it forces the operator to fulfil his/her legal obligations;
* it shortly follows the illegal conduct; and
* it is personalised to the given operator.
In addition to the above listed criteria, it was one of the main findings of Case Study I (see in Annex)
that a sanction cannot be seen as effective if it restrains the operator from restoring the state of
environment on the site and/or from repairing the damage caused.
Dissuasiveness
According to the answers received from the regional inspectorates, a sanction is deemed to be
dissuasive if it prevents the defendant and/or other operators from any illegal activity. The deterrent
effect of administrative sanctions is well illustrated through the following example:
According to most regional authorities, warning the operators about the potential legal consequences
of their illegal conduct is often preventive enough. In other words operators often start complying with
their legal obligations before more severe sanctions would be imposed. Therefore, it is rare that
criminal sanctions are imposed against operators, although the possible sanction of privation of
freedom may have the most deterrent effect on the operator.
Based on the main findings of Case-study I, it can be argued that a sanction leading to the closure of
the installations cannot be seen as dissuasive. Logically a given sanction has no preventive effect on
an operator who terminated its activities due to the sanction imposed.
More details on the case are provided in the Annex of this Case-study.
254 Article 83(1) of the Criminal Code.
22
VOLUME I6 ISSUE I
Case studies
The cases studies below illustrate the nature of administrative sanctions (i.e. effective, dissuasive, and
proportionate) applicable to IPPC installations and the procedural links between administrative and
court procedures.
The first case study shows the lack of dissuasive character of the administrative sanction imposed. In
the given case, the competent regional inspectorate prohibited the activity of the installation.
Following the decision, the IPPC installation terminated its economic activities. The conclusion of the
case is that a sanction cannot be seen as dissuasive, if as its consequence the operator stops the
economic activities on the site.
In the second case-study due to the administrative sanction imposed the IPPC installation stops the
illegal conduct, cleans the site and installs the necessary equipment to prevent such illegal activities.
The third case illustrates the procedural link between administrative and court procedures. It also gives
an example to cases when the administrative authorities apply different rules than those provided in
the IPPC Directive (and its implementing IPPC Decree) for cases when an IPPC installation does not
comply with its legal obligations. It is noted and explained below that such interpretation of the law by
the competent administrative authority was wrong.
Case Study 1: Administrative sanctions applicable to IPPC installations
Interviewee - Ms Gydngyi Bejenaru-Sramk 2 55

Organisation and position: Ministry of Rural Development, Chief Counsellor (Environment
Conservation and Development Department)
Telephone number: +36-1-795-2444
Date of interview: 15/04/2011
Timeline of the procedure
Description of the background
255 With regard to the first two case studies, it must be noted that information was gathered through an interview with the
Chief Counsellor of the Ministry of Rural Development (Ms Bejeranu- Sramko). When additional information was required
on the case, the competent regional authority was contacted (Regional Environment, Nature and Water Inspectorate of
Kozep-Dunavolgy) with the support of the Mvinistry of Rural Development, in the form of questionnaires. In certain
instances, the regional authority was unable to provide information on the dates of the procedural steps, or the level of
information provided was not sufficient to judge the nature of the sanction imposed (i.e. effectiveness, proportionality and
dissu1Asive'nessv
23
'B' Plc. was carrying out activities with a valid integrated environmental permit, which was amended
by three administrative decisions during the period of 2006 and 2008.
In January 2009, 'B' Plc informed the Regional Environment, Nature and Water Inspectorate of
Kozep-Dunavolgy (hereinafter referred to as regional inspectorate) about terminating its activities
from the end of January. The company also notified the inspectorate about its intention of subletting
the site to 'F' Ltd.
The scope of activities carried out by 'F' Ltd. was identical to the past activities of 'B' Plc, which
covered inter alia the manufacture and placing on the market of chemical substances on their own, in
mixtures, in preparations and in articles. These activities fall within the scope of Government Decree
No. 314/2005 (XII. 25.) on Environmental Impact Studies and Integrated Environment Use Permits
(hereinafter referred to as IPPC Decree) and are listed in its Annex II. It is important to note that while
'B' Plc possessed a valid integrated environmental permit, 'F' Ltd started its activities without such a
permit.
In order to verify the above described situation, the regional inspectorate carried out a site visit on 18
February 2009.
On the basis of the main findings of the site visit the regional inspectorate started two administrative
procedures, one against 'B' Plc and a second against 'F' Ltd.
Legislation applicable
Article 26(1) and 26(2) of the IPPC Decree: in case an installation operates without an integrated
environmental permit, or without an environmental permit, the authorities may limit, suspend or
prohibit the continuation of the illegal conduct. The decision of the authority depends on the decree of
influence of the illegal conduct on the environment.
Procedure
On 15 July 2009, the regional inspectorate started the administrative procedure against 'F' Ltd's IPPC
installation, on the legal basis of Article 26 of the IPPC Decree. This was communicated to the
installation on the 17 July 2009. Following the official notice, 'F' Ltd declared the fact that it was
cariying out activities without an integrated environmental permit.
The regional inspectorate did not accept the reasoning of the installation. It argued that during the site
visit (18 Februaiy 2009) it was notified to 'F' Ltd that it was cariying out IPPC activities without an
integrated environmental permit. Moreover, the installation was warned several times that no IPPC
activity could be carried out without an integrated environmental permit.
Shortly after the regional inspectorate started the administrative procedure, 'F' Ltd requested to
change the integrated environmental permit with regard to the name of the installation cariying out the
IPPC activities on the site. This request was under consideration, when the regional inspectorate took
its decision.
In its decision (26 August 2009), the regional inspectorate prohibited the operation of the installation
on the legal basis of Article 26(1)(c) and informed the parties about their right of appeal. In the legal
notice, the regional authority also informed the parties about the possibility of imposing additional
sanctions (i.e. fine) in the future, on the legal basis of Article 26(3) of the IPPC Decree.
On 15 December 2009, the regional inspectorate carried out a site-visit and noted that the installation
terminated all its activities on the site. The company also terminated the sublet on the site.
24
VOLUME I6 ISSUE I
General comments on sanctions
While imposing the administrative sanction, the regional authority strictly interpreted the provision of
Article 26(1) of the IPPC Decree. The main reason for prohibiting the activity of the installation was
that 'F' Ltd carried out its activity without an integrated environmental permit.
Following the decision of the regional inspectorate the company terminated the sublet and stopped all
its economic activities on the site. With regard to this point the regional inspectorate stated that the
given decision did not have a deterrent effect. In other word a sanction cannot be seen as dissuasive, if
as its consequence, the operator stops its economic activities on the site.
Finally, it is important to note that 'F' Ltd appealed against the first instance decision of the authority.
On the 16 April 2010, the decision of the first instance regional inspectorate was approved by the
National Environment, Nature and Water Inspectorate as second instance administrative authority. As
noted above, by the time the second instance decision was taken, the IPPC installation terminated its
activities on the site.
Case Study II: Administrative sanctions applicable to IPPC installations

2 56
Interviewee - Ms Gydngyi Bejenaru-Sramk
Organisation and position: Ministry of Rural Development, Chief Counsellor (Environment
Conservation and Development Department)
Telephone number: +36-1-795-2444
Date of interview: 15/04/2011
06/2008 and 26-28/01/2009: Date unknown:

13/10/2008 Sitvisit due to Appeal against
Descri mktin ithe
ckgoce frat
bdecision
11/11/32008: 02 :I Sie ad I E
Date unknown:-
eStar of Fir tinstalle Ari ulation of the
ppaciere 20tonne firt2 itance
deiion
257
The main activity of 'E.' Ltd. was to prepare equipment from recycled metal for rail companies. The
company possessed a valid integrated environmental permit, in accordance with Government Decree
314/2005 (XII. 25.) on Environmental Impact Studies and Integrated Environment Use Permits
(hereinafter referred to as iIPPC Decree'). The activity of the installation, namely 'foundry with a
production capacity of over 20 tonnes per day' was listed in Annex 11, point 2.4. of the IIPPC Decree.
256 Ms Bejeranu- Sramko also acted as a contact person while sending the structured interview questions to the competent
regional inspectorates and to the national inspectorate. Through a written questionnaire the Regional Environment, Nature
and Water Inspectorate of Kozep-Dunavolgy provided information for the above case-study.
257 Where in the time-line the dates are indicated as unknown, it means that during the interviews no information was
provided on dates.
25
Following a public complaint (from citizens), the Regional Environment, Nature and Water
Inspectorate of Kozep-Dunavolgy measured the Carbon Monoxide (CO) emission from the foundry.
As a result of measurement, the regional authority confirmed that the foundry exceeded the CO
emission limit values set by the integrated environmental permit.
In addition to the activity of measuring the IPPC installation's CO emission, the regional inspectorate
carried out a site-visit on the 13 October 2008. Following the site visit (and also in compliance with
the findings of the previous environmental audit), the regional authority confirned that blue gas was
emitted to the ambient air from the installation. It was assumed that this coloured gas was the by-
product of the recycling process.
Following the site-visit, the regional authority informed the operator about the fact that its operation
was not in compliance with the provisions of the integrated environmental permit and started the
Article 26 (5) of the IPPC Decree: if an installation endangers the environment or causes
environmental pollution or does not comply with an administrative decision, the authorities may
impose the legal sanctions listed in Article 26(1) of the IPPC Decree.
Article 26(1) of the IPPC Decree: the administrative authorities may limit, suspend or prohibit the
activity of an IPPC installation, depending on degree of influence of the illegal conduct on the
environment.
Procedure
As noted above, the administrative procedure was preceded by an activity of measuring the CO
emission from the site, which was carried out in June 2008 and by a site visit in October 2008. The
administrative procedure was launched in November 2008. The regional inspectorate communicated
its decision to the IPPC installation and asked the installation to notify any remarks within 3 days from
the communication of the legal notice.
Following the legal notice received, the IPPC installation informed the regional inspectorate about
terminating the emission which had previously exceeded the limit values set by the integrated
environmental permit. In order to prove this fact, the installation enclosed an expert opinion, which
underpinned that the CO emission of the installation was below the limit values set by the integrated
environmental permit.
Following further public complaints, the regional inspectorate decided to measure the emission of the
installation. During the second measurement (26-28 Januaiy 2009), the installation temporay ceased
its operation and argued that the high level of CO emission was a result of the temporary
malfunctioning of the installation.
As a result of the second measurement of emissions, the regional authority notified that the activity of
the installation was not in compliance with the integrated environmental permit. Consequently the
regional inspectorate ordered the installation to install an equipment to constantly measure the
emission from the installation and automatically stop the production in case of exceeding the emission
limit values set by the integrated environmental permit. 258
258 By installing such equipment, the IPPC installation has become subject to a constant administrative control. The legal
basis for imposing constant administrative control on the installation was Article 8 of Ministerial Decree No. 17/2001 (VIII.
26
VOLUME I6 ISSUE I
In addition to the above listed, the regional inspectorate noticed that hazardous waste was disposed of
on the site of the installation. The integrated environmental permit explicitly prohibited the installation
from accepting or treating hazardous waste on its territory. Consequently the activity of the installation
did not comply with the requirements of the integrated environmental permit.
General comments
In its first instance decision, the regional inspectorate suspended the activity of the installation, on the
legal basis of Article 26(1) and (5) of the IPPC Decree.
The main criteria which determined the sanction imposed was the infringement of the requirements of
the integrated environmental permit. The fact that the installation did not comply with the obligation
imposed by the authority with regard to the establishment of a measuring instrument, was also taken
into consideration. In addition, the IPPC installation treated hazardous waste, which was considered as
the infringement of the first point of the integrated environmental permit.
The installation appealed against the first instance decision of the regional inspectorate and asked the
National Environment, Nature and Water Inspectorate as second instance authority to cease the first
instance decision and list its obligations along with their respective deadlines.
The National Environment, Nature and Water Inspectorate annulled the first instance decision of the
regional authority. The legal reasoning behind this decision was not communicated by the interviewee.
The decision of the regional inspectorate to suspend the activity of the operator was effective._This can
be underpinned by the following factors: (1) the industrial installation cleaned the site of the hazardous
waste; (2) it installed an equipment to constantly measure the emission from the installation. With
regard to this last point it must be noted that the order of the administrative authority (namely the order
to install measuring equipment) took place before the first instance decision, but based on the
information received from the interviewee the industrial installation decided to install this equipment
only after the decision. This point is important, that it shows the effect of the administrative decision
on the industrial installation, namely that it started to comply with its legal obligations and with the
main objective of the IPPC Decree (i.e. protecting the environment).
Case Study III: Procedural link between administrative procedures and procedures
before courts
Interviewee: Dr Peter Darak and dr Fruzsina Bogos259

Organisation and position: Supreme Court, judge; Court of the Capital, judge
Telephone number: 06 30 328 90 30; (06-1) 458 5449
Date of interviews: 10/05/2011; 11/05/2011260
Date unknown:
Appeal aga, inst
the
3.) on the rules applicable to the administrative control and evaluation of the environme III t f stationary
pollution sources. alt
259 The interviewees were not aware of the dates of all procedural steps or could not provide st ormation to
judge the nature of the sanction imposed (e.g. proportionate, effective and dissuasive). These aspects are reflected in Case
study Ill.
260 Where in the time-line the dates are indicated as unknown, it means that during the interviews no information was
provided on dates.
27
The industrial installation started its activities in 2003. At that time, it possessed a valid environmental
permit. On 1 January 2006, the legislation transposing the JPPC Directive (96/61/EC) entered into
force, in form of Government Decree 314/2005 (XII. 25.) on Environmental Impact Studies and
Integrated Environment Use Permits (hereinafter referred to as 'IPPC Decree'). In accordance with the
JPPC Decree, existing installations needed to apply for integrated environmental permit before
October 2007. In compliance with this requirement, the industrial installation continued the same
activities as before, but with an integrated environmental permit.
The scope of activity of the installation covered the treatment and the recovery of waste. According to
the integrated environmental permit, the installation was entitled to treat 1000 tonnes/year of cinder,
slag and furnace dust, and 1550 tonnes/year land waste containing land and stone. The activity of the
installation covered two counties, with the exception of 7 settlements. As regards to the capacity of the
installation and the territorial coverage of its activity, the industrial installation could be considered as
large.
In this case the installation was carrying out waste treatment activities in contravention of the
conditions set by the environmental permit. Following a site visit, the Regional Environment, Nature
and Water Inspectorate (hereinafter referred to as the 'regional inspectorate') started the administrative
procedure against the installation.
The IPPC installation was carrying out activities with an integrated environmental permit. As
described above, the industrial installation did not comply with the conditions of the permit, while
carrying out waste-treatment activities. According to the practice followed and in compliance with
Article 26(4) of the JPPC Decree, the regional inspectorate should have imposed the legal
consequences listed in Article 26(4). This Article states that if an operator does not comply with the
permit conditions, the regional inspectorate may impose a fine; oblige the operator to comply with the
permit conditions; or order the operator to prepare a programme of measures/carry out an
environmental review within 6 months from the communication of the decision. The regional
inspectorate imposed a waste-treatment fine on the operator,261 on the legal basis of Article 49(1) of
Act XLIII of 2000 on Waste Treatment (hereinafter referred to as 'Waste Treatment Act'). The
interviewee assumed that the main reason for imposing the fine on the legal basis of the Waste
Treatment Act and not on the JPPC Decree was the novelty of the JPPC Decree.
26 Tn case of waste-treatment fines, there is not fixed fine (minimmum or maximum fine) that the authorities can impose on
operators. The amount of fine often varies depending on the size of the installation and the severity of the illegal conduct etc.
28
VOLUME I6 ISSUE I
Procedure
Within its competence of administrative control, the regional inspectorate carried out a site-visit at the
beginning of 2007. Following the site-visit, the regional inspectorate started an administrative
procedure against the installation on 31 May 2007. As a result of the first instance procedure, the
regional inspectorate imposed a waste-treatment fine of 5,530,887 HUF (Euros 20,786) on the
industrial installation.
The first instance decision of the regional inspectorate was appealed before the second instance
authority (National Environment, Nature and Water Inspectorate) on the legal basis of Article 98 of
Act CXL of 2004 (Administrative Procedures Act), which annulled the first instance decision. The
interviewee could not specify the legal reasoning behind the decision of the second instance authority.
However, the interviewee assumed that it was probably due to procedural mistakes made during the
first instance administrative procedure. This can be underpinned by the fact that shortly after the
annulment of the first instance decision a second fine (same amount as the first fine) was imposed on
the industrial installation. The regional inspectorate did not carry out additional procedural steps
before imposing the fine.
This administrative decision was appealed by the installation, but was kept in force by the national
inspectorate in May 2009.
Following the second instance administrative decision, the industrial installation appealed against the
first instance decision of the regional inspectorate before the competent court, on the legal basis of
Article 109 of Act CXL of 2004. In case of administrative litigations, the competent first instance
court is the county court. In the particular case, the competent court was the County Court of
Szaboles-Szatmar-Bereg (hereinafter referred to as country court). The county court upheld the
decision of the defendant (regional inspectorate) and rejected the request of the plaintiff (industrial
installation). In cases, when there is an appeal procedure against the decision of the administrative
authorities, the county court can take the final conclusive decision. Against such decision there is no
possibility to appeal.
On the legal basis of Article 340/A of Act III of 1952 on Civil Procedures, the Supreme Court
reviewed the decision of the administrative court. As result of the judicial review, the judgement of the
administrative court was approved.
General comments
On the basis of the information received the criteria determining the amount of the sanction imposed
by the regional inspectorate is not clear. However, it can be assumed that the main reason was the
large size of the installation and the severity of the infringement. This argument would be in line with
the reasoning of the Supreme Court's judgement, which stated that there was no possibility to decrease
the amount of fine imposed on the industrial installation, as the infringement of the operator was not
marginal. The Supreme Court also considered the fact that the activity endangered the environment
moreover it referred to the speciality of the case, namely the size of the installation.
It is important to emphasize, that the industrial installation was providing services in two counties.
With regard to the size of the installation, the amount of the fine imposed cannot be seen as
proportionate. Based on the information received, it is not possible to judge if the sanction was
effective and/or dissuasive.
Thus it is not possible to compare if a waste treatment fine or a fine under the regime of the IPPC Decree could have been
more dissuasive, proportionate and effective.
29
Bibliography
Legislation
Act XX of 1949 - Constitution of the Republic of Hungary
Act III of 1952- Civil Procedure Code
Act IV of1978- Criminal Code
Act LIII of 1995 - Environmental Protection Act
Act XIX of 1998- Criminal Procedure Code
Act LXIX of 1999 on Petty Offences
Act CIV of 2001 on Criminal Measures Applicable against Legal Persons
Act CXL of 2004- Administrative Procedures Code
Government Decree No. 314/2005 (XII. 25) on Environmental Impact Studies and Integrated
Environment Use Permits
Miscellaneous articles and studies
Fazekas Marianna - Ficzere Lajos (edit.), 'Hungarian Public Administration Law' (Magyar
k6zigazgatasi jog. Altalanos risz), 2006, Osiris Kiad6, Budapest
The International Comparative Legal Guide to Environment Law 2010, 'Gabor Hugai and Andras
Komaromi: Hungary', http://www.iclg.coukhdmin!Publications/pff3609.df
Reports
Commission Staff Working Paper, Report on the implementation of Recommendation 2001/331/EC

providing minimum criteria for environmental inspections, SEC (2007) 1493
Ministry of Environment and Water, National Inspectorate for Environment and Nature Protection:
'Report on point VIII of the recommendation of the European Parliament and of the Council of 4 April
2001 providing for minimum criteria for environmental inspections in the Member States
(2001/331/EEC)', Budapest, 31 October 2003
30
VOLUME I6 ISSUE I
Annex V- Spain
3'
32
VOLUME I6 ISSUE I

on industrial emissions in Spain
Executive Summary
In Spain, criminal environmental offences are broad and cover general crimes (e.g. against natural
resources, flora fauna and domestic animals). The Criminal Code does not contain any specific
criminal sanctions for the infringement of the transposing provisions of the IPPC Directive, nor
regarding to any other specific environmental legislation. These infringements can only be considered
criminal offences if they, for instance, seriously endanger the balance of natural systems through
emission, discharge of pollutants in the environmental media. In contrast, environmental
administrative offences are much more precise. The classification of administrative offences and their
related sanctions are set in each specific sectors of the environment legislation.
An administrative procedure and a criminal procedure cannot be initiated in parallel when the same
facts and persons are involved. Administrative and criminal sanctions cannot be cumulative. The
administrative procedure shall end if it is considered that the infringement is a criminal offence (non
bis in idem principle).
The sanctioning power of the administration is strictly regulated in order to protect the right of the
defence (three procedural steps: initiation, investigation, resolution). The time to issue an
administrative sanction cannot exceed six months from the initiation of the administrative procedure.
Apart from issuing sanctions, the administration is empowered to set interim emergency provisional
measures in order to stop the continuation of the damage or situation of risk such as the temporary, full
or partial closure of the installation, the cessation of installation operations, and the temporary
suspension of the permit which is considered to be a very effective measure. These measures can be
agreed before the initiation of the sanctioning administrative procedure. The administration can also
require the offender, without prejudice to the criminal or administrative sanction, to restore the
environment to the previous state, as well as pay the damages; in case the offender does not obey this
obligation, the competent authority can agree on the imposition of coercive fines.
There are several possibilities to appeal against the decision of the administration (either before the
authority issuing the sanction, the higher authority or before the administrative Courts in last resort).
Together with the operator of a classified establishment; other interested parties can appeal against the
decision of the administration. This is the case for environmental NGOs, but they have to fulfil very
specific requirements that limit their enforcing power.
Criminal procedure is often initiated by Nature Protection Services of the Guardia Civil (the federal
police force), together with the municipal police that provide information on potential environmental
crimes to the Public Prosecutor (Ministerio Fiscal). However, it is important to note that pursuant to
the popular action 'accion popular' both natural and legal persons, whether or not offended by a
criminal offence can lodge a complaint to the Criminal Court. The standing requirements are much
less stringent than the ones under the administrative procedure. Environmental criminal offences can
be resolved under a fast-track criminal procedure, although the procedure does not seem to be made
for such crimes. There is no equivalent under the administrative procedure.
The Autonomous Communities (CCAA) are competent for the inspection and enforcement of
environmental legislation. Even though inspection procedures for classified establishments are not
harmonised in all CCAA, several inspection requirements are similar (e.g. necessary assistance and
collaboration from the operator during the inspection visits).
33
The Table 1 below indicates the provisions of the IPPC Directive covered by administrative sanctions
in Spain. Criminal sanctions are not listed in the table as there are no specific sanctions in the Criminal
Code, which would punish the infringement of the transposing provisions of the IPPC Directive (see
Section 3.1 for more details). Moreover, the category of administrative (quasi) criminal sanctions does
not exist in Spain, thus this column is left blank in the table below.
Table 1: Enforceableprovisions covered by penalties in Spain
all-"1 Aricle 32(1)(c) of the Law

16/2002
4 Article 32(1)(a) (b) of the Law
16/2002
6 Article 32(1)(b) of thie Law

16/2002
12 (1)Article 32(1) (b) of the Law
16/2002
12(2)Article 32(1)(a) (b) of the Law

16/2002
Article 32(1)(a) (b) of the Law

16/2002
14 Ib Article 32(1)(b) of thie Law

16/2002
14 mArticle 32(1)(b) of thie Law

16/2002
34
VOLUME I6 ISSUE I
1. Applicable sanctions
The Spanish Constitution (CE) recognises everyone's right to an adequate environment and duty to
preserve it. Article 45(3) specifies that for those that violate this duty, there should be criminal or,
where required, administrative sanctions, as well as the obligation to restore the damage caused. It is
the only case for which the Constitution foresees the establishment of sanctions in case of breaches of
a Constitutional duty.
Administrative sanctions are the most common tools for the enforcement of environmental legislation
in Spain. The classification of administrative offences and their related sanctions are set in each
specific sectors of the environment legislation (e.g. Law 16/2002 on classified installations,26 2 Law on
water, 2 63 and Law 10/1998 on waste 26 4 ) that list the different offences classified as petty offences
(faltas leves), serious offences (faltasgraves) and veiy serious offences (faltas muy graves) and their
corresponding administrative sanctions. The IPPC Directive is transposed by the Law 16/2002 of 1st
July 2002 on classified installations, which sets offences provisions and their related administrative
sanctions that can lead to a fine (up to Euros 2,000,000), definitive or temporaiy closure of all or part
of the installation, the prohibition to exercise a professional activity for a certain time period, the
revocation or suspension of the approval for a certain time period and the publication of the sanctions.
Environmental sectoral laws do not list any specific criminal offences. Criminal environmental
offences and their related sanctions are only mentioned in Chapter III Title 16 of the Spanish Criminal
Code. These offences are broad and cover general crimes against natural resources and the
environment and also crimes related to the protection of the flora, fauna and domestic animals. The
Code does not contain any specific criminal sanctions for the infringement of the transposing
provisions of the industrial emission Directives, nor regarding any other specific environmental
legislation. Environmental criminal offences can lead to financial penalty (maximum Euros 300,000)
or imprisonment (maximum four years)
The Table 2 below details the different types of offences and related administrative penalties in Spain.
Criminal offences and sanctions are not listed as there is no criminal sanction specific to breaches of
industrial emission legislation.
262 Law 16/2002 concerning integrated pollution prevention and control (Ley 16/2002, de 1 dejulio, de prevenci6ny control
integrados de la contaminaci6n.)
263 Royal Decree 1/2001 approving the consolidation of the Law on water (Real Decreto Legislativo
1/2001, de 20 de julio,
nor el aue se anrueba el texto refundido de la Lev de Auas)
35
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36
VOLUME I6 ISSUE I
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38
VOLUME I6 ISSUE I
Article 149(1)(23) of the Constitution of 1978 provides that the State has exclusive competence on
matters related to the protection of the environment without prejudice to powers of the Autonomous
Communities (Comunidades Autonomas) (CCAA) to take additional protective measures. In other
words, the CCAA can provide more stringent and detailed environmental measures than the
environmental legislation issued by the State which is regarded as a minimum legislation. With regard
to environment, the CCAA pursuant to Article 148(1)(9) of the Constitution of 1978 are competent in
the management of environmental matters. This provision implies that the CCAA are competent for
the inspection and enforcement of environmental legislation and that they have sanctioning power.265
For instance the Law 16/2002 on classified installations explicitly provides that the Autonomous
Authorities are competent to take measures on control and inspection for the enforcement of this Law
(the State being competent for the control of discharges in basin shared by different CCAA). It also
states that the offences encompassed in its Article 31 shall be without prejudice to the ones that can be
established by the Autonomous authorities.
Several CCAA (e.g. Catalufia, Andalucia, Cantabria, Pais Vasco) but not all of them (e.g. Asturias,
Madrid Community) have established their own administrative sanctioning regime for the
infringement of environmental legislation. Related to classified installations the majority of the CCAA
refer to the same offences that the ones listed in Law 16/2002 on classified installations (e.g. the
operation of an activity without the integrated environmental permit, or failure to comply with the
conditions set in the integrated environmental permits). However the sanctions sometimes differ from
the ones set in Law 16/2002. For instance the failure to comply with the conditions established in the
integrated environmental authorisation provided that there has been a serious injury or damage to the
environment or such situation seriously endangered the health or safety of people can lead to a fine up
to Euros 3 million in Cantabria,266 Euros 2,4 million in Andalucia,267 Euros 2,5 million in Aragon,268
while under Law 16/2002 the same offence can lead to a fine of a maximum of Euros 2 million.
It is important to note that even though CCAA are competent to establish their own administrative
sanctioning regime for the infringement of environmental legislation, the sanctions they apply shall
never be less stringent than the ones set at the State level. Furthermore the Constitutional Tribunal has
stressed that administrative sanctions issued by CCAA should not introduce unreasonable and
disproportionate differences with the legal regimes applied in other parts of the territory. 2 69
2. Administrative procedure
2.1 General elements on the legal tradition and potential evolution
Article 25(1) of the Spanish Constitution (CE) provides that no one may be convicted or sentenced for
actions or omissions which, when committed, did not constitute a criminal offence, misdemeanour or
administrative offence under the law then in force. Article 25(3) of the CE specifies that the Civil
Administration may not impose penalties which directly or indirectly imply deprivation of freedom.
Finally as mentioned above Article 45(3), related to the protection of the environment, specifies that
criminal or, where applicable, administrative sanctions shall be imposed, under the terms established
by the law.
265 See decision of the Constitutional Court (TribunalConstitucional)STC 102/1995, FJ

2y]8)
266 Law of Cantabria 17/2002 on integrated environmental controls (Ley de Cantabria17/2006, de 11 de diciembre,
de
Control Ambiental Integrado)
267 Law 7/2007 on integrated management of the environment (Ley 7/2007, de 9 dejulio, de Gestion Integrada de la Calidad
Ambiental)
268 Law 7/2006 onthe environment vrotection in Aragon (Lev 7/2006 de 22 de junio de proteccion amnbiental deArakon)
39
These Articles of the CE set the basis of the sanctioning power of the administration in Spain. The
Jurisprudence of the Constitutional Tribunal has developed general principles on this sanctioning
power which can be summarised as follows:270
- The sanctioning power of the administration shall be subject to the principle of legality and shall
be mentioned in laws;
- The administration cannot issue penalties that deprive personal freedom except for the military
disciplinary regime;
- The respect for the rights of the defense enshrined in Article 24 of the CE shall apply to the
sanctioning administrative procedures;
- The sanctioning power of the administration shall be subordinated to the authority of the Judiciary,
(e.g. the administrative jurisdiction (Jurisdiccion contencioso-administrativa)is empowered to
control the legality of the administrative sanctions); 27 1
The Supreme Tribunal (Tribunal Supremo) stressed that administrative and criminal sanctions could
be considered equivalent since they were both part of the same ius puniendi of the State. It however
outlined the specific characteristics of administrative sanctions as follows:
- Subjective element: the administrative sanction is imposed by the administration; the criminal
sanction is imposed by the criminal judge.
- Formal element: the administrative sanction is imposed after an administrative procedure while the
criminal penalty is imposed after a criminal procedure. The difference is not only in the process as
such, but also in the powers given to the instructed authority and the regime applicable for the
suspension of the immediate execution nature of the sanction, which is much more favourable
towards the individual in criminal law than in administrative law.
- Objective element: the content of administrative sanctions does not basically differ from the
content of criminal ones, with the exception of imprisonment which can never be an
administrative sanction. However there is a difference in the effects, as administrative sanctions do
not have the social recrimination component present in criminal sanctions. This is emphasised by
the fact that criminal sanctions will be entered on the personal record of the individual.
- Liabilit: in criminal law only physical persons can be held individually liable, whereas
administrative law admits the liability of legal persons, and joint and several liabilities of physical
persons.
In Spain, the administrative authority having sanctioning power, apart from sanctions, can also issue
coercive measures and interim measures.
Interim measures or provisional orders can be imposed once the sanctioning procedure has been
initiated or under certain circumstances even before. The objectives of the interim measures are, on the
one hand, to ensure the efficiency of the possible final decision and, on the other, to protect the public
interest, including stopping the negative effects derived from the infringement. Pursuant to Article 35
of the Law 16/2002 on classified installations the competent authority, can order to stop the
continuation of the damage or situation of risk, the temporary, full or partial closure of the installation,
the cessation of installation operations, the temporary suspension of the permit.
Coercive measures are considered means of forced execution. These measures imply the use of force
and are based on the previous infringement of the sanction or obligation of restoration imposed by the
270 Sentencia del Tribunal Supremo 77/1983

21
7 Article 24 of the CE reads as follows: All persons have the right to obtain effective protection from the judges and the
courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defence.
Likewise, all have the right to the ordinary judge predetermined by law; to defence and assistance by a lawyer; to be
informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of
evidence appropriate to their defence; not to make self-incriminating statements; not to plead themselves guilty; and to be
uresumed innocent. The law shall svecify the cases in which, for reasons of family relationshin or urofessional secrecy. it
40
VOLUME I6 ISSUE I
administration. Their aim is to override non-compliance and force the offender to comply with the due
behaviour. For instance Article 36 of the Law 16/2002 on classified installations provides that when
the offender does not fulfill the obligation of replacement or restoration [...], the competent authority
may decide to impose coercive fines which shall not exceed one third of the fine prescribed for the
infringement.
Finally the competent authority can or must impose accessoiy measures (e.g. revocation of a permit,
impossibility for the company to obtain public subsidies). It is not clear whether these accessoiy
measures are considered sanctions or not.272 They can only be imposed as complements to a main
sanction. Consequently, they are conditioned by the imposition of a main sanction.
The sanctioning power of the administration is veiy coercive in Spain. Administrative sanctions are in
many aspects similar to criminal sanctions. They are veiy strict (e.g. to operate a classified installation
can lead to a fine up to Euros 2,000,000) and can be considered as coercive measures. As mentioned
above together with criminal sanctions they are part of the iuris puniendi of the State. This sanctioning
power is however strictly controlled and regulated through the Law 30/1992 and its implementing
Order that sets several procedural steps in respect of the right of the defence. There was no major
reform related to the administrative sanctioning procedure since Law 30/1992 has been in force.
2.2 Inspections
2.2.1 General information
As mentioned above, the CCAA pursuant to Article 148(1)(9) of the CE are in charge of the
management of environmental matters. This provision implies that the CCAA are competent for the
inspection and enforcement of environmental legislation. The CCAA are the most important actors in
the domain of environmental inspection in Spain. At national level the Ministry of Internal Affairs
(Ministerio de Interior) is in charge of the inspection of installations falling under the SEVESO II
Directive while SEPRONA (Servicio de Proteccion de la Naturaleza- Service for the protection of
nature), the section of the Civil Guard (GuardiaCivil-sort of federal quasi-militay police) specialised
in environmental issues provides technical support to the inspection bodies of the CCAA.
The inspections of installations falling under the scope of the IPPC Directive are thus carried out at the
CCAA level. Information on the number of inspectors involved in the inspection of classified
installation, the ratio number of inspectors/number of installations, number of visits per year, are not
available for all Spain. This information can however be found for each CCAA. The CCAA elaborate
inspection plans and programmes where this information can be available. For instance pursuant to its
2011 inspection programme, Andalucia is planning to carry out 178 inspections on IPPC installations
this year.
2.2.2 Key elements of the inspection procedure
Legal requirements for the inspectors and operators during the inspections differ from one CCAA to
another since they are competent to set their own inspection procedures.
Here are examples of different environmental inspection procedures in CCAA that apply for the
enforcement of the transposing provisions of the IPPC Directive.
i) Andalucia
22
7 1f the legislator has not expressly classified these measures as accessory measures or sanctions it will depend on the
Constitutional Tribunal and Sunreme Tribunal to decide whether these measures are a sanction or not. It is noted that they are
4'
The environmental inspection procedure in Andalucia is regulated under Article 130 of the Law
7/2007.273
Competenciesand obligations of inspectors

Inspectors shall provide the description of the relevant facts and especially those that could constitute
an administrative infringement. They shall take also into account the allegations made by the person
responsible for the activity or facility. Inspectors are allowed to request any information necessay to
perform their inspection.
Obligationsof the operator

Operators shall provide necessaiy assistance and collaboration and enable entry into the facilities to
those engaged in the activities of surveillance, inspection and control.
The inspectors'enforcing powers

The Law 7/2007 does not provide administrative measures that can be taken by inspectors in case of
infringement or endangerment of public health or of the environment (e.g. closure or sealing of the
installation).
ii) Pais Vasco
The environmental inspection procedure in Pais Vasco is regulated under Articles 106 and 107 of the
Law 3/1998.274

Inspectors shall be authorised to access the facilities covered by this Law, if necessaiy without notice,
after identification. Inspectors shall provide the description of the relevant facts that can potentially
lead to an infringement. They shall take also into account the allegations made by the persons in
charge of the activity or facility inspected.

This Law does not mention any specific obligations to be fulfilled by operators.
The inspectors'enforcing powers

This Law does not provide any specific enforcing power to inspectors. It however states that under
exceptional circumstances and prior to the initiation of the sanctioning administrative procedure, the
competent authority may adopt preventive measures such as suspension of the operation of the
activity, the sealing of apparatus, equipments or vehicles, and any other relevant measures to prevent
the spreading of environmental damage.
iii) Catalufia
The environmental inspection procedure in Catalufia is regulated under Articles 74, 75, 76 and 77 of
the Law 20/2009.275 This procedure is very detailed.

Inspectors shall verify whether the environment conditions set in the environmental permits are
fulfilled. Inspections can take place at any time, regardless of any regular inspection planning.
Inspectors are empowered to access installations without prior notice to the operators. They are
empowered to investigate, and do any examinations they consider necessary to verify whether the laws
2 3
7 ibid. Page 2
274 Law 3/1998 on the protection of the environment in Pais Vasco (Ley 3/1998, de 27 defebrero, general de protecci6n del
medio anbiente delPais Vasco)
275 Law 20/2009 on the urevention and environmental control of activities (Lev 20/2009, de 4 de diciembre, de Prevenci6n v
42
VOLUME I6 ISSUE I
and regulations are correctly observed. They can also take samples of the pollutants produced by the
activity. They can require information from the owner and/or the staff of the activity as deemed
necessaiy to clarify facts that are subject to inspection. Reports of the inspection shall be issued in
presence, where possible, of the individual owner or the authorised representative of the activity
concerned.

The owners of the activities shall provide necessary assistance to duly authorised staff of the
administration during the inspection, especially to collect samples and necessay information.
Inspectors'enforcing powers
This Law does not provide any specific enforcing power to inspectors. It however states that
inspectors are authorised to be present in case of the sealing, partial or total closure of activities.
In Spain, inspectors are not specifically empowered to issue administrative sanctions.
The sanctioning power of the administration is regulated by Law 30/1992 and it's implementing
Order.276 This Law applies to the Administration of the State (LaAdministraci6n General delEstado),
the administrative authorities of the CCAA (las administraciones de la communidades autonomas)
and to the local administration bodies (Las Entidades que integran la Administraci6n Local). In other
words the same general sanctioning power rules apply to the different types of administrative
authorities across the countiy (but the CCAA's laws can be always more restrictive). This law is,
however, applied as a subsidiaiy instrument where a given administrative law does not provide a
specific regime as regards the imposition of sanctions or interim measures. Title IV of the Law
16/2002 which transposes the IPPC Directive sets specific sanctioning regimes for the infringement of
the provisions of the law, including temporaiy, total or partial closure of the installation.
The infringement procedure shall be transparent and interested parties have the right to know the
current state of the procedure and to access and obtain copies of the documents contained therein. This
procedure contains three steps, the initiation (la iniciacion), the investigation (instruccion) and finally
the resolution (resolucion).
It shall be initiated by the competent administrative authority either on it own initiative, based on a
request from an administrative body higher in the hierarchy, a reasoned request from an other
administrative body not competent, or a complaint from a member of the public. During the
investigation the parties concerned have 15 days to provide any arguments, documents or information
deemed relevant and, where appropriate, propose concrete proof justifying their allegations, then the
competent authority shall formulate a draft resolution determining the infringements and the sanctions.
This draft resolution shall be notified to the persons concerned that have 15 days to formulate
arguments and present orally the documents they consider relevant to the competent authority. The
resolution, which contains the decision whether or not to impose a sanction, shall be adopted within 10
days of the reception of the draft decision, documents allegations, information provided during the
procedure. The time limit to issue a resolution cannot exceed six months from the initiation of the
procedure.
2.3 Appeal against the administrative decision
2.3.1 By the operator
276 Law 30/1992 on the legal regime of public administrations and the administrative procedure (Ley 30/1992, de 26 de
noviembre, de Regimen Juridico de las AdministracionesPfiblicas v del ProcedimientoAdministrativo Comfn v el Real
43
Recipients of the administrative sanction can appeal this decision before the relevant hierarchical
administrative authorities. Such appeal (recurso administrativo de alzada) can only be used when
administrative sanctions do not put an end to the administrative procedure. This appeal must be
resolved and the decision notified within three months. When the decision notified on the appeal is not
satisfactory or there is no decision, an appeal may be lodged before an administrative court within two
months or within 6 months in case of silence from the administration.27 7
In case the administrative sanctions put an end to the administrative procedure then the recipients of
the administrative sanctions can appeal this decision directly before the administrative courts (recurso
contencioso-administrativo) within two months or six months in case the administration did not
provide decision. Alternatively the recipients of administrative sanctions can appeal before the
competent authority issuing the sanction (recurso potestativo de reposicion). This appeal must be
notified within one month only then the recipients of the administrative sanction are allowed to lodge
an appeal before the administrative courts within two or six months, depending on whether there was
an express or a tacit decision on the appeal.278
CCAA have their own Courts (e.g. Administrative Courts) and a Supreme Tribunal for cases under
their competences, but these are enshrined in the national system and are hierarchically inferior to the
State Supreme Tribunal. If the administrative decision affects more than one CCAA or falls under the
competence of the State then an appeal shall be lodged to the Central Administrative Court (Juzgado
Central de lo Contencioso Administrativo).
The procedure before the administrative Court is quite long. It often happens that the final decision is
adopted two or three years after the action was brought before the Court.279
2.3.2 By a person other than the operator
Pursuant to Article 31 of the Law 30/1992 interested parties that can initiate an administrative
procedure are:
- Those who promote the administrative action as holders of legitimate individual or collective
interest and rights,
- Those who have not initiated a procedure but whose rights may be affected by the decision
taken in the procedure,
- Those who have not initiated a procedure but whose legitimate individual or collective
interests may be affected by the decision and become a party to the procedure before the final
decision on the procedure is made;
Associations representing economic and social interests would be deemed to have a collective interest
as laid down in the legislation.
Pursuant to Article 19 of the Law 29/1998 regulating the administrative court procedure, the following
interested parties can challenge an administrative decision before an administrative court:
- Legal or natural persons having legitimate individual or collective interests and rights;
- Corporations, associations, unions which are affected or are legally entitled to protect
collective rights and interest;
277 See Article 46 of the Law 30/1992

228 Ibid.
279 E. Pozo Vera, Study on measures other than criminal ones in cases where environmental Community law has not been
respectedin the EUMember States, National, Report Spain, Milieu Ltd, Brussels (2004)
44
VOLUME I6 ISSUE I
- The State administration when holding rights or interests to challenge acts and provisions of
the Administration of the Autonomous Communities, and the administration of the CCAA
when holding rights or interests to challenge acts and provisions of the State administration.
Pursuant to Article 22 of the Law 27/2006 transposing the Aarhus convention, 280 the acts and where
appropriate, oussions attributable to public authorities which contravene requirements related to the
environment (e.g. the protection of water and soil, air pollution, chemical substances, waste
management) may be appealed by environmental NGOs, that shall meet specific criteria in accordance
with the administrative appeal procedure set in Law 30/1992 and the administrative Court procedure
set in Law 29/1998.
These criteria are as follows:
* The aims in its by-laws expressly include the protection of the environment in general or of
any particular element thereof;
* It was legally established at least two years before the action is brought and has been actively
pursuing the aims provided in its by-laws;
* It performs its activity pursuant to its by-laws in a territory that is affected by the
administrative act, or if applicable, omission.
It is important to note that administrative acts and omissions from natural or legal persons assuming
public responsibilities, exercising public functions or providing public services related to the
environment under the responsibility of the State or CCAA Government or State and CCAA
administrations are exempted from Article 22 of the Law 27/2006 and environmental NGOs will not
be directly entitled to challenge these acts and omissions.
As a conclusion, not only the operators of an activity falling under the scope of the IPPC Directive that
received an administrative sanction can lodge an appeal against this decision. For example
environmental NGOs fulfilling strict criteria are entitled to challenge it. The State administration,
having legitimate interest, can also challenge before the Court the administrative sanctions set by a
CCAA administration. Conversely the CCAA administration, having legitimate interest, can challenge
to the Court administrative sanctions set by a State administration.
3. Judicial procedure
3.1 General information
As already mentioned above criminal environmental offences and their related sanctions are only
mentioned in Chapter III Title 16 of the Spanish Criminal Code. These offences are broad and cover
general crimes against natural resources and the environment and also crimes related to the protection
of the flora, fauna and domestic animals. This Code does not contain any specific criminal sanctions
for the infringement of the transposing provisions of the IPPC Directive.
Article 325 of the Criminal Code, however provides that, the infringement of laws and other general
provisions, which aims are to protect the environment, leading to emissions, discharges, radiations,
extractions or excavations, silting, noise, vibration, injection, deposit, in the atmosphere, soil, subsoil
or inland water, groundwater, sea, including high sea, catchments that could seriously undermine the
balance of natural systems shall be considered as a criminal offence.
280 Law 27/2006 of 18 July regulating the rights to access information, the participation of the public and access to justice in
environmental matters (Ley 27/2006, de 18 de julio, por la que se regulan los derechos de acceso a la informacion, de
varticivacion Nblica v de acceso a la justicia en materia de medio ambiente (incorpora las Direcfivas 2003/4/CE v
45
In other words infringements of the transposing provisions of the IPPC Directive (e.g. the emission
limit value standards), can lead to a criminal sanction, if they can seriously endanger the balance of
natural systems.281
Article 326 amongst other provisions considers as aggravating circumstances of the criminal offences
mentioned above the fact that activities were operating without obtaining the required authorisation or
administrative approval or disobeyed the orders of the administrative authority for correction or
suspension of the activities or provided wrong environmental information or impeded the
administration inspection activities.
These aggravating circumstances are similar to certain administrative offences related to the
infringement of the transposing provisions of the IPPC Directive.
Criminal Law in Spain sets two types of criminal offences either misdemeanours (faltas) or crimes
(crimenes) depending on the seriousness of the criminal offences.
There is no specific criminal procedure for environmental criminal offences. The relevant criminal
procedure and the competent criminal Courts are determined by the types of criminal offences. The
Magistrate Court (Juzgado de Instrucci6n) of the district is competent for misdemeanours. When
dealing with crimes different judicial bodies are competent. The Magistrate Court of the District where
the crime took place carries out the investigation. In very serious cases the Central Court of Instruction
(Juzgado de Instrucci6n Central) does the investigation. Depending on the seriousness of the crime
are competent to issue a judgement, the Juror Court (tribunal del Jurado), the Court of Criminal
(JuzgadoPenal) or the Provincial Penal Court (Sala de lo Penal de AudienciaProvincial),
Most of the time the Nature Protection Service of the Guardia Civil, together with the municipal police
and forest guards are the ones that provide information on potential environmental crimes to the Public
Prosecutor (Ministerio Fiscal) that reports the criminal offence to the Magistrate Court, the judicial
body competent to instruct the investigation. In case the Magistrate Court considers that the facts
constitute a crime, the Public Prosecutor can formulate the accusation to initiate the trial.
It is however important to note that pursuant to Articles 101 and 270 of the Law on criminal
procedure, any person, whether or not offended by a criminal offence can lodge a complaint to the
Judge of the Magistrate Court, the so called 'popular action'(acci6npopular). 282 The Jurisprudence
of the Supreme Tribunal (Tribunal Supremo) has interpreted these provisions in a way that not only
natural persons can lodge this popular action but also legal persons, public institutions and
organisms. 283
In other words environmental NGOs are entitled to lodge a complaint to the judge of the Magistrate
Court when they consider that an environmental criminal offence was committed.
The criminal procedure for criminal offences related to flora and fauna is shorter than the procedure
for criminal offences endangering the balance of natural systems. Crimes against flora and fauna are
easier to prove than crimes against natural systems, which require much more scientific analyses (e.g.
on impact of pollutants and chemicals) and different expert opinions. Such elements are often used as
a strategy by the defence to extend the length of the procedure.
281 The jurisprudence of the Supreme Tribunal considers that this type of crime is based on an abstract endangerment (See
Sentencias Tribunal Supremo 14 February 2001 and 25 October 2002)
282 Law of criminal urocedure (Lev de Enjuiciamento Penal)
46
VOLUME I6 ISSUE I
Finally, Articles 795 to 803 of the Law on criminal procedure set a fast-track criminal investigation
and prosecution for offences punishable by imprisonment not exceeding five years, or with any other
sanction, not exceeding ten years, whatever its pecuniary amount, provided, that criminal proceedings
are initiated under a police report and the judicial police has arrested a person and made him/her
available to the Police Court (Juzgadode Guardia).
The environmental criminal sanctions enshrined in the Criminal Code do not exceed five years of
imprisonment. Therefore this fast-track procedure can apply to those who have committed
environmental criminal offences under Chapter IV of the Criminal Code. This requires, however, a
policy report and the arrest of the alleged person that committed the environmental offence. This fast
track procedure was designed for 'in flagrante delicto' criminal offences and it is less likely to apply
for environmental crimes relate to the infringement of the IPPC requirement because of the difficulty
to prove them.
3.2 Possibilities of appeal
Appeals (recurso de apelaci6n) against the judgement of the Court of Criminal jurisdiction can be
lodged either by the public prosecutor, the offender, and other parties (e.g. environmental NGOs)
before the Penal Chamber of the Provincial Court (Sala de lo penal de Audencia Provincial) within a
timeframe of 10 days from the issue of the judgement.284
The decision of the Penal Chamber of the Provincial Court can then be appealed to the Second
Chamber of the Supreme Tribunal (recurso de casacion) by the public prosecutor, parties involved in
the case and their heirs within a time-frame of five days from the issue of the judgement. Parties
involved shall be present at the Second Chamber of the Supreme Tribunal respectively 15 days after
the issue of the judgement of Penal Chamber of the Provincial Courts (20 days for Isla Baleares, 30
28 5
days Canarias y Ceuta y Melilla).
No specific time-frames are set for the issue of the judgements.
4. Synergies between administrative and criminal procedures
Pursuant to the principle of ne bis in idem (not twice for the same), there cannot be accumulation of
administrative and criminal sanctions for the same facts. If an administrative procedure has been
initiated with the objective of imposing a sanction, and the competent authority considers that the facts
could constitute a criminal offence, it should stop the procedure and transfer the case to the criminal
jurisdiction.286 Only if the criminal jurisdiction considers that the situation cannot be qualified as a
crime, the administrative body is empowered to continue the administrative procedure. The imposition
of a criminal penalty excludes the possibility of imposition of an administrative sanction if it involves
the same facts and same persons.
5. Conclusions
5.1 Preliminary conclusions
Proportionate
284 See Book V of the Law on criminal procedure (Libro Vde la Ley de Enjuiciamento
Penal)
285 Ibid.
47
The Law 16/2002 transposing the IPPC Directive provides different administrative offences classified
as petty offences (faltasleves), serious offences (faltasgraves) and very serious offences (faltasmuy
graves) and their corresponding administrative sanctions. Such gradation of offences leaves room to
punish an infringement on the basis of the individual severity of the violation and can be assessed as
fulfilling the criterion of proportionality.
Effective
The administration is empowered to set interim emergency measures in order to impede the
continuation of the damage or situation of risk such as the temporary, full or partial closure of the
287
installation, the cessation of installation operations, and the temporaiy suspension of the permit.
288
These measures are considered to be quite effective. The administrative procedure to issue a
sanction contains several procedural steps in order to respect the right of the defence; it shall not
exceed 6 months. Sanctions can be appealed before the administration itself and then to the
Administrative Courts. The overall procedure is quite long and thus may lack of effectiveness (e.g.
administrative court proceedings can last two or three years after the action was lodged).
Environmental NGOs can challenge administrative sanctions (or their omissions) but they have to
fulfil very strict criteria which limit their role in the procedure.
The Criminal Court procedure can be quite long and thus not very effective. Environmental criminal
offences can however be resolved under a fast-track criminal procedure, although this procedure does
not seem to be made for such crimes. One of the positive aspects about the Spanish criminal procedure
improving its effectiveness is that any person, whether or not offended by a criminal offence can lodge
a complaint before Criminal Courts under the 'popular action'.
Dissuasive
The administrative sanctions are quite stringent, they can lead to a fine (up to Euros 2,000,000)289,
definitive or temporary closure of all or part of the installation, the prohibition to exercise a
professional activity for a certain time period, the revocation or suspension of the approval for a
certain time period and the publication of the sanctions. They can thus be considered dissuasive. It is
significant to note that the dissuasive aspect of administrative sanctions was particularly taken into
account by the Spanish legislator under Article 32(2) of the Law 2002/2 that provides that when the
amount of the fine is lower compared to the benefit of the infringement, it shall be increased at least up
to twice the amount the offender has benefited.
Criminal fines are less dissuasive than the administrative ones (maximum Euros 300,000).
Environmental criminal offence can however lead to imprisonment penalties. The privation of freedom
(maximum four years) has a significant deterrent effect compared to administrative sanctions.
287 Article 35 of the Law 16/2002 on classified installations

288 E. Pozo Vera, Study on measures other than criminal ones in cases where environmental Community law has
not been
respectedin the EUMember States, National, Report Spain, Milieu289
Ltd, Brussels (2004)
289 Even more in certain CCAA (e.. 3 million euros in Cantabria . 2.4 million euros in Andalucia 289 . 2.5 million
euros in
48
VOLUME I6 ISSUE I
Case studies
Case Study 1
Introduction
For this case study information was provided by Javier Vera Janin, Director of the Section on
inspection and control of the Environmental Department of the Government of the Autonomous
Community of Navarra. This case study covers an IPPC installation, but the sanctioning procedure
mentioned here deals with the infringement of the transposing provision of Article 9(1) of Directive
1999/13/EC 2 90 (Volatile Organic Compounds Directive) requiring operators to demonstrate to the
Competent Authorities that they comply with emission limit values in waste gases, fugitive emission
values and total emission limit values.2 91
Arlicle Key enforceable prov isions of the NVolatile Organic Compounds flirectlve
Article 5(2)(a) Installations shall comply with the emission limit values and other requirements laid
down in Annex IIA;
Article Installations shall comply with the reduction scheme requirements specified in
5(2)(b) Annex JIB.
Article 5(4) For installations not using the reduction scheme, any abatement equipment installed
after 1999 shall meet all the requirements of Annex IIA.
Article 5(5) Options for installations where two or more activities are carried out, each of which
exceeds Annex IIA thresholds, (e.g. each activity must meet specified requirements
individually).
Article 5(6) Substances or mixtures classified as Carcinogenic, Mutagenic or toxic to
Reproduction (CMR) because of VOCs content shall be replaced, as far as possible
by less harmful substances or mixtures within the shortest possible time.
Article 5(8) Certain discharges of halogenated VOCs assigned risk phrases R40 or R68 where
the mass flow is > g/h shall comply with emission limit value of 20 mg/Nm3.
Article 5(9) Discharges of VOCs classified as CMR or assigned risk phrases R40 or R68 after
Directive enters into force have to comply with the para. 7 & 8 ELVs within
shortest possible time.
Article 5(10) All appropriate precautions to be taken to minimise emissions during start-up
&
shut down.
Article 9(1) Operators have to demonstrate compliance to the satisfaction of the Competent
Authorities with:
- ELVs in waste gases, fugitive emission values & total ELVs,
- the requirements of the reduction scheme under Annex IB.
Solvent management plans according to Annex III can demonstrate compliance.
Gas volumes added to waste gas for cooling or dilution purposes shall not be
considered when determining mass concentration of the pollutant in the waste gas.
Article 9(2) Compliance shall be re-verified following a substantial change.
Article 10 (a) The operator shall inform the competent authority and take measures to ensure that
compliance is restored within the shortest possible time
The sanctioning procedure started in October 2008 and ended by an administrative sanction in May
2009. The operator did not appeal the sanction to the administrative Court. Overall the time period
290 Directive 1999/13/EC on the limitation of emissions of volatile organic compounds due to the use of organic solvent in
certain activities and installations
291 No case studies were provided on the sanctioning procedure for the infringement of a transposing provision of the IPPC
Directive by the environmental devartments of the Autonomous Communities, in charne of enforcement of environmental
49
from the establishment of the infringement and the issuance of the sanction was quite short, nearly 8
months. The operator did not lodge an appeal to the administrative Court.
17/10/2008 13/02/2009: Start of the

sanctioning adiminstrative
Submission of the braceure
oet n Solvent Manag
24/10/2008: Requestto thelegal to t si 1 e o t adt

unitctoiniateasanctioning gilIsatione infSpai
procedure
The facility is an industrial plant that produces aluminium car rims The installation is located in
Navarra. It was granted an integrated permit in 2007.292
The operator sent to the competent authority its 2007 Solvent Management Plan. The Competent
Authority established infringements to the provisions of Directive 1999/13/EC On Solvens 293 and the
corresponding transposing legislation in Spain.
The legislation applicable here is the Directive on Volatile Organic Compounds, and its transposing
legislation in Spain, the Royal Decree 117/2003. These rules establish that the operator shall
demonstrate to the competent authority that it complies with emission limit values in waste gases,
fugitive emission values and total emission limit values of solvents.
Infringements to the Royal Decree 117/2003 can be sanctioned according to the Law 16/2002
concerning integrated pollution prevention and control.29 ( However, as already mentioned in the
countiy detailed study, the Autonomous Communities are competent for the inspection and
enforcement of environmental legislation and are entitled to set their own regime of sanctions related
to the environment. This is the case in Navarra where infringements to the Royal Decree 117/2003 are
sanctioned under the Law of Navarra 4/2005 of March 2005.
This law sets a range of pecuniary sanctions:
292
Thisis equivalent to an IPPC authorisation.
293
Council Directive 1999/13/EC of I11 March 1999 on the limitation of emissions of volatile organic compounds due to the
use
294 of organic solvents in certain activities and installations, OJI 85, 29.3.1999, p. 1-22.
Royal Decree 117/2003 of 31 January, on the limitation of emissions of volatile organic compounds due to the use of
organic solvents in certain activities and installations (Real Decreto 1172003, deS31 de enero, sobre limitacion de emisiones
de
295
compuestos organicos volatiles debidas al uso de disolventes en deterninadasactividades.
Law 16/2002 concerning integrated pollution prevention and control (fey 162002, de 1 de julo, de prevenciony control
integrados de la contaminacion.} Royal Decree 117/2003 does not contain any sanctions but for sanctions refers to the Law
16/2002.
296 Regional Law 4/2005 22 March on intervention for the urotection of the environment (.Lev Foral 42005, de 22 de mnatzo,
50
VOLUME I6 ISSUE I
Euros 20,000 for minor infringements;

Euros 200,000 for serious infringements;
Euros 2,000,000 for very serious infringements;
In this particular case the legal department of the competent authority considered the infringement as
minor.
The procedure
The operator submitted to the competent authority its 2007 solvent management plan on October 17,
2008.
The solvent plan showed that fugitive emissions exceeded the threshold limit value of the solvents
directive. Fugitive emissions were 69% of solvent input whereas the limit set by the Directive is 20%.
The unit in charge of the Solvent Directive made a request to the legal unit to initiate a sanctioning
procedure on October 24, 2008. Following the procedure set in the Law of Navarra 4/2005, the legal
unit informed the municipality about the infringement.
The municipality decided not to initiate the sanctioning administrative procedure due to lack of
technical and legal resources.
Finally, the regional Government of Navarra initiated the sanctioning administrative procedure on
February 13, 2009. The regional Government proposed a sanction in the procedure of Euros 10,000.
The operator pleaded not guilty on March 29, 2009 because by the end of 2008 he had built a new
painting installation with a thermal unit to oxidize the volatile organic compounds.
The legal unit considered the allegations partially and finally imposed a sanction of Euros 5,000. The
operator did not lodge an appeal against this administrative decision to the Court. The procedure ended
on May 13, 2009.
General comment
The legal unit considered the infringement as minor because the amount of solvents used by the
operator in 2007 was under the threshold of the IPPC Directive (200 Tm/year). 2 9 7
The punishment was established taking into account that the range for minor offenses is up to Euros
20.000. The Government of Navarra decided that the sanction should be in the middle of the range.
Finally the allegations made by the operator were partially considered during the sanctioning
The sanction has deterred the perpetrator from repeating infringements and since 2009 the operator
complies with all permit conditions.
297 Annex I point 6(7) of the IPPC Directive on categories of activities covered by this Directive: Installations for the surface
treatment of substances, objects or products using organic solvents, in particular for dressing, printing, coating, degreasing,
waterwroofin, sizing. vaintin2, cleaning or imvrenatin2, with a consumution canacity of more than 150 k ver hour or more
5'
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la salasegunda del TribunalSupremo, Eguzkilore, numero 23 San Sebastian (2009)
F. Sanchis-Moreno, Legal analysis of the Aarhus Convention in Spain, Santander (2008)
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law has not been respected in the EU Member States, National, Report Spain, Milieu Ltd, Brussels
(2004)
A.M. Moreno, National Report Spain, part of national reports on citizens access to court and important
national developments in environmental laws, Avosetta Group, meeting 2002
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52
VOLUME I6 ISSUE I
Annex VI- The Netherlands
53

on industrial emissions in the Netherlands
Executive summary
In the Dutch legal system, both criminal and administrative penalties can be imposed for a breach of
the legislation on industrial installations. In principle, these two enforcement systems have different
aims - ensuring compliance (i.e. administrative penalties) and a punishment (i.e. criminal penalties)
function respectively. Administrative fines are the exception, as they have a punitive character.
Since l" October 2010, administrative measures related to breaches of rules implementing the IPPC
directive in the Netherlands have been primarily taken on the basis of the Act on General Provisions
Environmental Law (Chapter 5 on enforcement). Before this date, such administrative measures were
regulated by the Environmental Management Act (Chapter 18 on enforcement).
The General Administrative Law Act was and is still applicable next to the abovementioned acts. This
framework act contains general rules of Dutch administrative law, for instance definitions. It provides
a comprehensive toolkit of enforcement measures to the competent authorities. The Act lists four types
of administrative sanctions for offences that can apply to both natural and legal persons:
* administrative order subject to a financial payment (dwangsom); a restorative (reparation)

measure which aims at full or partial reversing the effects of the violation; it is a non-punitive
coercive measure that in practice is used far more than the other measures
* administrative enforcement / coercive order (bestuursdwang); a non-punitive coercive measure
* administrative fines; a punitive sanction for minor offences
* revocation of the permit; this can be a punitive sanction as well as non-punitive measure
As for enforcement through criminal law, the public prosecutor's office can instigate criminal
proceedings against cases in which environmental law obligations are violated. Violations of the rules
as laid down in the main pieces of environmental law (notably working without a permit or in
violation of the conditions of a permit under the Act on General Provisions Environmental Law and
the Environmental Management Act) are punishable as economic offences in the Economic Offences
Act. It is within the Dutch public prosecutor's discretion to decide whether to prosecute or not
(whether it is 'opportune' to do so). The policy line agreed upon in this respect is to prosecute only
violations of core provisions of environmental legislation (as set out in the Instruction on enforcement
of environmental law). Some cases are subject to transaction between the prosecutor and the
perpetrator while other cases are brought into court.
The table below indicates the Articles of the IPPC Directive covered by sanctions in the Netherlands.
The category of administrative (quasi) criminal sanctions does not exist in the Netherlands, thus this
column is left blank in the table below.
Article 1.1(3) of WABO Article 2.1(2) of BOR

together with Article 2.1(e) of (which cross-refers to
WABO Article 2.1(e) of WABO
Article 1.1(3) of WABO Article 2.1(e) of WABO
tnorthpr with Artirlp 7 1PI nf whirh ik rfprd tn in
54

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©Global Law Association 2012

Provisions on penalties related to legislation on industrial

Bosnia and Herzegovina

Sanctions and procedures applicable to breaches of the legislation

Table 1: Enforceableprovisions covered by penalties in Hungary

Government Decree 314/2005,

Government Decree 314/2005,

Government Decree 314/2005,

2.1 General elements on the legal tradition and potential evolution

On the basis of their functions, administrative sanctions can be grouped as follow:

2.2.1 General information

In Hungaiy, environment related inspections are performed by administrative bodies for

129 Before Ministry of Environment and Water:

2.2.2 Key elements of the inspection procedures

Generalrules on administrative inspections

IPPCspecific rules on administrativeinspections

1' Article 73(1) of Act LIII of 1995.

Table 3: Rights and Obligationsof inspectors

11. entry preparing a report of proceedings

2.2.3. The inspectors' enforcing powers

Enforcement of the decision of administrative authorities

2.3. Appeal against the administrative decision

Table 4: Appealproceedings againstadministrativedecisions

.'Article 57/B(1) of Act CXL of 2004.

205 Article 140-142 of Act CXL of 2004.

2.3.1 By the operator

2.3.2 By a person other than the operator

3 Judicial procedure (if relevant-with a focus on criminal sanctions)

3.1 General information209

Table 5: Rights ofoperators during the criminalprocedure

measures can be applied.218

3.2 Possibilities of appeal

3.3 Administrative (quasi) criminal procedures

Administrative (quasi)criminal procedures start with a complaint or ex-officio by the relevant

4 Synergies between administrative, administrative (quasi) criminal and

Table 6 Procedurallinks between administrative, administrative(quasi) criminal and criminalprocedures

242 Article 35 of Act LXIX of 1999.

Administrative and administrative (quasi)criminal/criminalprocedures: According to Article 107 of

Ip-I IIt1h R m iat ~ ~ tr~i

251 Article 26 (3) of the IPPC Decree.

254 Article 83(1) of the Criminal Code.

Case Study 1: Administrative sanctions applicable to IPPC installations

Interviewee - Ms Gydngyi Bejenaru-Sramk 2 55

Timeline of the procedure

Description of the background

General comments on sanctions

Case Study II: Administrative sanctions applicable to IPPC installations

Timeline of the procedure

06/2008 and 26-28/01/2009: Date unknown: