Fundamental environmental policy in Cyprus and the agencies/bodies accountable for the administration and enforcement of environmental law:
In 2004, following the EU accession of Cyprus, the environmental policy has been subjected to a fundamental review, in order to brought into line with over 300 legislative instruments (Regulations and Directives) and other action programmes which from part of the manifold, a complicated and detailed environmental chapter of the acquis communaitare. Although the new legislative framework is systematically comprehensive and clear in interpretation without leaving room for relaxations or illegalities, its implementation has not reached maximum levels of efficiency and progress is yet to be made for visible enhancement in the environment and quality of life.
The competent authority for the endorsement and implementation of the governmental policy on environmental issues in Cyprus is the Ministry of Agriculture, Natural Resources and Environment. Its fundamental objection is the processing and execution of individual plans and programmes aiming to develop the environmental sector and deal with particular problems identified in relation to the environment. The Environment Service of the Ministry, a personal team of the Ministry Directorate, is the key unit to which the environmental sector has been assigned. The main competences of the Environment Service include the provision of advice on issues of environmental policy, co-ordination of environmental action plans and supervision on the performance and implementation of environmental policy and legislation. It also performs impact assessments from contemplated actions on the environment, advice on harmonization of Cyprus Law with the European policy, as well as legislation on the environment, acting as the national authority for a wide range of international agreements, conventions and inter-governmental organizations such as CSD, MCSD, SMAP, MAP, INFOTERRA koi UNEP and the promotion of environmental conscience and awareness.
The Environment Service consists of four departments with respective competences in the fields of Waste Management and Climate Change, Pollution Regulation, Horizontal Matters/Goods, as well as Nature Protection and Land Use. The Department of Waste Management and Climate Change deal with waste management permits, solid waste, waste shipments, packaging waste, climate change, emissions trading and relevant environment impact assessments (EIA). The Department of Pollution Regulation deals with IMPEL-IPPC waste discharge permits, processing industries, slaughterhouses, olive oil mills, mining and quarrying, urban liquid waste, animal and poultry wastes and relevant EIA. The Department of Horizontal Matters/Goods deals with noise, fluoride gases, ozone, UWWT plants, PCBs/PCTs, environmental technology, green public procurement, Lisbon Strategy, Cardiff Process, sustainable development, MAP, MCSD, Horizon 2020, RAC/CP, EU issues, access to information, environmental liability, GMO’s, and EMAS/ECOLABEL. The Department of Nature Protection and Land Use deals with Natura 2000 network, protected areas, fauna, invasive species, species trade, desertification, focal Point EIA, focal Point SEA, coastal zone management, international conventions, INSPIRE, CORINE, land planning and environment, sustainable constructions and relevant EIA. In addition to the Environment Service, various other Ministerial departments enjoy competences that involve satellite environmental issues. Such examples are the Department of Town Planning and Housing of the Ministry of Labour and Social Security, the Public Health Service and the State General Laboratory of the Ministry of Health. Lastly, other semi-governmental authorities and local authorities are entrusted with a variety of competences that are environmentally-related, such as water supply, sewerage and wastewater treatment, street cleaning, waste collection, disposal and other.
Enforcement of environmental law
Following the integration of Cyprus as a full Member State of the European Union, there has been as enhancement in regulation, awareness and enforcement of environmental Law on the Law on the island. A strict and pro-active approach has been undertaken in aim to utilize both protective and preventive measures that are apt for the enforcement of the regulatory framework. Despite this approach, there are still problems in enforcement, as result of the diminished number of personnel, judicial delays and lack of public awareness.
Providing of environmental-related information to interested persons
Cyprus Law has incorporated the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“the Aarthus Convention”) by passing Law no. 33(III)/2003. Further, the Law on Public Access to Information Related to the Environment of 2004 – No. 119(I)/2004 was enacted for the purposes of harmonizing Cyprus legislation with Directive 2003/4/EC on public access to environmental information. The above provisions require public authorities to make available any environmental information held by such authorities to any natural or legal person requesting such environmental information. The person requesting such information has no duty to provide or prove any legitimate interest. If case where the addressed public authority knows that another public authority holds the request information, it must send the application to the latter authority and inform the applicant accordingly. Public authorities may refuse a request for disclosure of environmental information in restricted circumstances defined by the Law, such as general or manifestly unreasonable requests, incomplete material or internal communications, or in case that the disclosure of this information would adversely affect confidentiality protected by Law, international relations, public security, national defence, the administration of justice, the conduct of an enquiry of a criminal or disciplinary nature and the right of any person to receive a fair trial, tax secrecy, intellectual property rights, personal data of natural persons not consenting to the disclosure of the information of the public, the protection of the environment to which such information relates (e.g. location of rare species) and other.
Any person who is not content with the response or lack of response to a request for disclosure of environmental information is entitled to apply for a hierarchical review and/or lodge an administrative recourse for the matter to be brought before the Supreme Court of Cyprus.
Environmental permits and their transformation from person to another
Various legislative instruments provides for activities, projects, business, plants and installations which are subject to environmental permits, prior to their commencement and while their operation is pending. The Environment Service is responsible for granting permissions and monitoring matters of environment, waste management, discharges and emissions. Permissions relating to air matter fall within the competence of the Ministry of Labour, Department of Labour Inspection. Licensing may be subject to conditions that the competent authority deems fit for the protection of other public interests, such as public health. Environmental permits issued in the name of a corporate entity are not affected by any change of share ownership of the corporate entity.
Conversely, in case of sale of an asset which enjoys an environmental permit, this permit is not directly transferable or assignable. After being notified of any intention to transfer such asset which has been subject to a licence, the relevant authority ordinarily grants a new licence to the new owner, provided that no changes or amendments have been effected. If the new owner effects amendments to the plans or operation of the project, installation or plant, a new approval process is normally commenced.
Appeals against the decision of an environmental regulator not to grant an environmental permit or in respect of the conditions contained in an environmental permit
Article 146 of the Cyprus Constitution secures the right of any person affected by any decision of an administrative body to file an administrative recourse to the Supreme Court. The right may be exercised within 75 days from the date the decision is noticed to the interested person. Some Laws provide for the right to a hierarchical review of a decision, which may be take as an intermediary step prior to the filing of recourse to the Supreme Court.
Enforcement powers of environmental regulators regarding the violation of permits
Criminal liability and sanctions are contemplated for any person operating any installation or performing activities contrary to a legislative requirement to obtain an environmental permit or authorization. Violations may take the form of failure to obtain a permit or breach of the conditions of an acquired permit. Sanctions comprise fines up to €34,000 and imprisonment that does not exceed three years both of these sanctions. In addition, the Law provides the power to the competent authorities to vary the terms and conditions of any permits or authorisations granted or to cancel them.
Liabilities
Any breach of environmental Laws may result in criminal, administrative or civil liability.
Criminal liability is founded on several offences which involve breach of environmental legislation, such as failure to obtain environmental permits, breach of conditions of permits, water pollution, soil pollution, waste disposal and other. Sentencing involves fines up to €85,000 or imprisonment for not more than three years or both of these sanctions. Criminal liability may be avoided in cases of force majeure, provided that the accused proves that due care and attention were demonstrated to prevent the committing of the offence and that all possible measures for remediation were taken without undue delay. Civil liability may arise under the Law of torts and, in particular, the well-known case Law developed in relation to the torts of nuisance.
Liability of an operator for environmental damage notwithstanding that the polluting activity is operated within the permit limits
A polluting activity which is permissible under the terms and conditions of a valid licence, provided that this was obtained prior to the commission of the polluting activity, cannot provide a legitimate ground for criminal liability. In that respect, legislative provisions specifically state that the obtaining of a valid permit constitutes a defence to any criminal offence. Notwithstanding, this does not automatically absolve any person from civil liability, provided that damage to a third party can be proved and the polluting activity falls within the ambit of Law of torts.
Can directors and officers of corporations attract personal liabilities for environmental wrongdoing, and to what extent they may get insurance or rely on other indemnity protection in respect of such liabilities?
Under general criminal Law provisions dealing with offences committed by corporate entities, as well as under specific provisions that can be found in environmental Laws, criminal liability is imposed on directors and officers of corporate entities who commit a breach of environmental Law. Liability depends on the premise that such persons have expressly or impliedly authorized the commission of this act. If several directors or officers are prosecuted for the same offence, a defence may be raised by some of them on the ground that the polluting activity was effected under the orders of other Directors or Officers and that they had no personal knowledge of such action. Directors or Officers may rely on indemnity provisions, provided that these provisions form part of an agreement between themselves and the corporate entity or if this indemnity is provided for in the Articles of association of the corporate entity. Insurance is also available, although not customarily utilized.
In the event of a merger or acquisition of capital in a company, environmental liability is not affected, in the sense hat liability remains with the seller, although it is customary to include indemnity clauses for the protection of the buyer, especially where pollution or its extent may not be easily verifiable.
To what extent may lenders be liable for environmental wrongdoing and/or remediation costs?
There is no precedent under Cypriot Law for founding liability on lenders environmental wrongdoing and/or remediation costs and the prospects for such a claim are relatively remote.