The team at Scornik Gerstein LLP represents clients in all aspects of environmental law before the Spanish administrative and judicial authorities. Our approach is driven by our core principle of social responsibility and the belief that the environment, our children's most valuable inheritance, deserves the highest protection.
Our professional environmental law team benefits from the external counselling of Ms. Mariangeles Lopez, a leading expert in this area who routinely deals with environmental litigation, mass tort, toxic tort and class action suits. We equally offer advice to companies subject to environmental permits who wish to establish activities in Spain.
Are there any environmental taxes in Spain?
Yes, there are. Although historically the attitude of the Spanish fiscal authorities has been a very cautious one with regard to new taxes of an environmental type, the country has recently undertaken deep changes with regard to environmental taxes.
The most significant tax, the so called Tax on the greenhouse effect gases, was introduced by Law 16/2013, on Environmental Taxation measures and it taxes the sale and use of gases used in industry and in heating facilities that have negative effects on global warming.
However, there are a number of other taxes - many of them amended by the said Law 16/2013 - where the environment plays an important role. Amongst those ones, the main ones are the Tax on the sale of electricity, Tax on the generation and storage of radioactive waste, and the Tax on the use of inland waters for hydroelectric power stations.
It is also worth noting that the Autonomous Regions are entitled to pass their own legislation on the matter. Although different territories may thus apply different regulations, the main regional taxes to take into consideration relate to air emissions, hazardous and/or liquid waste, sanitation and water.
Can I (including my company) be prosecuted for an environmental crime in Spain?
Yes, you can. Article 45 of the Spanish Constitution states that “everyone has the right to enjoy an environment suitable for the development of the person, as well as the duty to preserve it”. On this basis, the Spanish authorities are empowered to impose either administrative or criminal sanctions for those who do not comply with environmental law, including companies and other legal persons. Indeed, since 1995 the Spanish legal system has not ceased to increase the stringency of the punishments applied to environmental offences.
Article 319 et seq. of the Spanish Criminal Code set forth the catalogue of environmental crimes, whose penalties range from fines to more than five years of imprisonment. Due to its broad scope, article 325 constitutes the main offence and the one that best captures the structure and configuration of environmental crimes in Spain.
The behaviour described by article 325 involves the direct or indirect causation of a range of phenomena (emissions, discharge and dumping, excavations, vibrations, amongst other actions) on certain environmental elements (atmosphere, soil and subsoil, water).
The said behaviour must breach a relevant administrative regulation on the matter, and it must directly pose a risk to the environment. Furthermore, under certain circumstances (e.g. deliberate disobedience of a previous administrative order, risk of creation of an irreversible damage), an aggravated form of the offence may be applied.
It is worth noting that only offences committed with intent will be punishable, whereas breaches of law arising from a negligent behaviour will not be criminally prosecuted.
Do I need an environmental permit to operate my company in Spain?
Under Law 16/2002 on Integrated Pollution Prevention and Control, companies carrying out certain industrial activities that could potentially damage the environment require a permit to operate. The exhaustive list of activities is specified by the Annexes of the said regulation.
The law sets up a single environmental permit scheme, under which companies will only need to obtain a single authorisation regardless of the range of different activities they wish to undertake. Indeed, very few activities are not covered by the integrated permitting regime and, in those cases, sectorial regimes will apply.
Permits are issued by the relevant Autonomous Region authority, and they do not expire. However, compliance with the conditions established is subject to controls every four years.
Apart from the permits, certain companies (particularly those whose activities are most likely to have a significant environmental impact, such as nuclear power stations and airports) may require to carry out an additional environmental impact assessment (EIA). The applicable regime is established by Law 21/2013, on Environmental Assessment, and it is enforced by the Ministry of Environment and/or its delegate at the Autonomous Region. The standards required by the EIAs will vary according to the risk level of the activity, and its satisfaction leads to the obtaining of an Environmental Impact Declaration that sets forth the terms and conditions with which the project must comply in order to be acceptable.
Finally, it is important to note that, regardless of all the aforementioned controls, companies operating in Spain have a duty to report to the relevant authorities any incident related to their activities that can potentially cause damage to the environment.
If you would like more information, please do not hesitate to contact us.
