TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 274/12

25 of May of 2012

Headnotes:

He norm which, in the light of the special risks that result from the use of petroleum coke fuels, requires all enterprises that use this type of fuel to continuously monitor emissions is not contrary to the constitutional principles of universality and free competition. Every enterprise that uses petroleum coke is subject to the same rules, and all of them are entitled to opt for another type of fuel. Moreover, the imposition of this continuous monitoring obligation specifically on enterprises that use this fuel is not intended to arbitrarily discriminate against them in relation to other enterprises, and the regulatory option in question is based on clear, objective criteria. This solid fuel contains high levels of impurities that are hard to remove prior to use, so safety and control measures designed to protect human life and the environment are important. The decision to impose the legal duty that was challenged in the present case was thus founded on a justification that is sufficient to exclude any finding of arbitrariness, and sought to pursue policies and values that are guaranteed by the Constitution: the promotion of fundamental tasks with which the state is charged in relation to citizens’ well-being and quality of life; the effective implementation of the right to a human life environment that is healthy and ecologically balanced, and the fulfilment of the duty to defend that right; and the defence of the environment in general. Nor is it possible to consider that by making it obligatory for enterprises that use petroleum coke to continuously monitor sulphur dioxide emissions, the state intervened in a way which constitutes an illegitimate disincentive for business activities, despite the fact that this implies an increase in those enterprises’ production costs. This is because the state’s goal was to protect the general interest, which, notwithstanding recognition of the freedom of private initiative, must always be taken into account. The Constitutional Court thus concluded that the norm before it is not unconstitutional.

Summary:

The issue in this case was the alleged organic and material unconstitutionality of the part of a Ministerial Order which made it obligatory to continuously monitor sulphur dioxide (SO₂) emissions in combustion facilities that consume petroleum coke as a fuel, whatever their mass flow. The appellant in this case was a private company. It alleged that the norm was organically unconstitutional, arguing that when the Ministerial Order said that the regime under which such provisions only apply above a certain mass flow is not applicable to combustion facilities that consume petroleum coke, it created a new administrative offence. The legislation which the Ministerial Order regulated (which established the regime governing the prevention and control of polluting emissions into the atmosphere, laying down the appropriate principles, objectives and instruments for ensuring the protection of the natural resource ‘air’, together with the measures, procedures and obligations applicable to the operators of the facilities in question, with a view to avoiding the atmospheric pollution generated in those facilities or reducing it to acceptable levels) says that emissions of pollutants whose mass flow exceeds a threshold to be decided by Ministerial Order are subject to continuous monitoring. In the appellant’s view, establishing a mandatory continuous monitoring regime regardless of mass flow for combustion facilities that consume petroleum coke was organically unconstitutional because it created a new administrative offence, thereby breaching the Assembly of the Republic’s partially exclusive legislative competence. In addition, the appellant argued that the norm also suffered from material unconstitutionality, because it violated the principles of the universality of the treatment of every enterprise and of free competition between enterprises.

On the question of organic unconstitutionality, the Constitutional Court considered that its own jurisprudence indicates that here, the exclusive competence of the Assembly of the Republic only covers legislation on the general regime governing mere social administrative offences and the respective proceedings (even then, the Assembly has the power to authorise the government to legislate in this respect). Within the limits imposed by that general regime, the government is able to exercise its concurrent legislative competence to create new administrative offences and lay down the corresponding punishment, modify or abolish existing offences, and mould secondary rules for use in administrative-offence proceedings. The behaviour which the norm before the Court in the present case says is an administrative offence consists of the breach of the obligation to continuously monitor certain polluting emissions. The government issued the respective Executive Law in the exercise of its own competence, and in doing so respected the limits laid down in the framework Executive Law, which was in turn issued under an authorisation to legislate granted by the Assembly of the Republic. The specific Executive Law, which the appellant argued does not contain the administrative offence in question, only says that a Ministerial Order must set the limits above which the continuous monitoring of polluting emissions is to be required. The Ministerial Order that sets the limits for atmospheric pollutants does not in itself create a new administrative offence when it makes the continuous monitoring regime obligatory for all combustion facilities which consume petroleum coke as a fuel, irrespective of their mass flow – i.e. without any minima or maxima for the obligation to monitor.

At the same time, the fact that we are not in the presence of a matter that is encompassed by the Assembly of the Republic’s partially exclusive legislative competence (which only covers the general regime governing mere social administrative offences and the applicable proceedings) means that when the government legislated to create the administrative offence in question in the present case and to establish the corresponding punishment, it was not required to obtain any form of parliamentary authorisation.

The appellant also alleged a material unconstitutionality on the grounds that, by making it obligatory to continuously monitor regardless of the volume of the mass flow when the fuel used is petroleum coke, the government violated the constitutionally enshrined principle of universality – a principle that is applicable to legal persons because the Constitution says that they enjoy the rights that are compatible with their nature. It also argued a breach of the constitutional principles of free competition and free access to the market by all enterprises, which it said was caused by the creation of different rules for the same situations, thereby interfering at the level of business competition, creating unequal forms of treatment, and imposing obstacles that hinder both enterprises and their effective inspection. The Court disagreed, and rejected these allegations.

Two Justices, including the President of the Constitutional Court, dissented with regard to the question of organic unconstitutionality. They did not share the majority understanding in this respect, which was that the imposition of an always mandatory continuous monitoring was included within the task of concretely setting the limits above which the emission of pollutants must be continuously monitored, and could therefore be implemented by Ministerial Order. The dissenting Justices were of the view that when the Executive Law required the issue of a Ministerial Order, it had a very precise objective – that of complementing the primary rules established by a given legislative norm, in such a way as to ensure their practical implementation. These primary rules limited the obligation to continuously monitor, in every case and without exception, situations in which certain minimum thresholds for the polluting flow are exceeded. The two Justices opined that, as a secondary norm which is subordinate to the Law in question, the norm before the Court should have restricted itself to quantifying those thresholds, and that by saying that the basic criterion for the obligation to monitor does not apply to petroleum coke, the Ministerial Order was in breach of the principle of the pre-eminence of the law.