The original note was written by our legal department in Portuguese, and directed to all the anti-oil groups operating in Portugal, but because we believe its important that we all understand its message, we’ve adapted the original text to reach a wider audience. Being each and everyone of You!
Once again we reaffirm that we respect everyone’s opinion, as well as the management style used by each and every group involved in the anti-oil fight.
Nonetheless we will continue to hold anyone and everyone accountable for decisions taken unilaterally that could have negative impacts on the overall strategic outcome of anti-oil drilling campaigns or processes.
During the course of the past few weeks it has become clear that many individuals do not really understand the Portuguese legal process. At the same time, and in our opinion, it appears that there are massive levels of misinformation doing the rounds, which is creating high levels of confusion.
The following sections are a brief and succinct explanation of what happens and why it happens.
1. A court injunction (urgent application / providência cautelar) is not the main Court Proceeding. It’s only a legal instrument that supports the main Court application.
There’s the misconception that an injunction is the main case. Nothing could be further from the truth.
An injunction is an interim Court order prohibiting a legal body (person/company/government) from taking a particular action, or requiring them to take a particular action to protect the interests defined in an application, which is dependent on the outcome of a trial (dispute) brought before the court.
In Portugal (like in many countries) you can submit an injunction application before you submit a full court application.
It’s based on the necessity of placing an “action” on hold because typically a court case may last longer than the immediate threat. If the matter is extremely urgent it can be submitted to court on its own merits, but the claimant has only 3 months in which to submit to court its main case, otherwise the injunction becomes obsolete and fails.
However there are various claims in the press, that it is possible to proceed with a main case application after the three-month timeframe, that is incorrect.
When considering the merits of bringing an injunction to court initially without a supporting main court case, we need to assess the viability of proceeding or not proceeding with a main court application submission to court within the time limits set by law (the three months).
Let’s look at some scenarios:
- when the injunction application was rejected / or can be rejected by the court, you may decide to not proceed with the main court application. In other words, if an injunction was not granted by the court for the Suspension of the TUPEM licence / or if there is the risk that you would loose the main court application, you may decide to not submit the main court application …;
- when can an injunction be rejected by the court? When it does not provide substantive and quantitive evidence that there is a threat or a loss in the short-term.
- why is it difficult to obtain an injunction in a legal action against the TUPEM licence for oil exploration? Because it is difficult to factually and objectively prove that the claimed damages/threat are of a nature that can’t be repaired/fixed/overturned.
Here’s a simple example: an order to terminate the life of a specific dog has been issued by a local council because someone considered that the dog was dangerous. The owner of the dog submits an urgent court application (injunction application), claiming that if they kill his dog without proven grounds, it will be impossible to resuscitate the dog. He would be dead, period. In this case, the injunction is granted and the termination of life order is put on hold pending the outcome of the trial. Which will determine if the dog should be or not be killed.
In the case of the oil drilling what is the specific situation that can’t be reversed? Its very difficult to prove irreversible damages … there are thousands of arguments that can be provided, and for each and everyone of them, we as the applicants have to prove to the court that it can’t be reversed because the outcome of the threat is “final” and that we can substantiate our claims.
The fact that “they” do not have an EIS (Environmental Impact Study), together with the fact that they had not been subject to an EIA (environmental impact assessment) as required by the Portuguese law, should have immediately led to the suspension of the TUPEM.
This is independent of the fact that within the next three-months, “they” will provide an EIA very well “put together with all the bells and whistles”, supporting lack of serious risks during the exploration phase, which the Portuguese Environmental Agency, will in all probability approve, thus lifting the current drilling embargo.
Because "they" will argue that it is in the “simple phase” of exploration that “they” are in, this simple factor will greatly assist in the completion of the EIA. After all, the production and exploitation phase will only be “piggybacked” at the end of this process; but right now it will be simply ignored because it will be seen as immaterial to the current EIA approval process.
And it is due to above factors that the current injunction (providência cautelar) is ineffective.
If there is an approved EIA, which will enable the drilling to go ahead, the injunction fails, because the TUPEM could only be suspended if it did not meet the legal requirements;
and if the EIA stops the drilling, the injunction then stops having a purpose – it becomes obsolete.
This shows that ASMAA has always been right when we stated that none of the injunctions submitted to stop the drilling would succeed, and that all of them had failed … whether the process was already final or not.
2. The TUPEM (Private Utilisation of Maritime Space Title) was granted because there is a CONTRACT that legitimised its application.
Without a valid contract “they” would not have been able to have a TUPEM licence. Now, we all know that the contract was extended by one year to January 2019, subject to GALP/ENI paying a security deposit, obtaining the appropriate insurance, and submit an EIA for approval by the Portuguese Environmental Agency (so long as the Agency would consider it necessary, which it appears they have done).
This means that “they” would not be able to comply with any of their contractual obligations, which means, that “they” could not drill neither.
Meaning, the drilling was to all purposes embargoed from the minute that the Secretary of State for Energy, Jorge Seguro Sanches, conditioned the extension to the contract until such time as they had complied with the terms and conditions under witch the extension was granted.
Without a valid contract, the TUPEM would have had to be cancelled, because there would be no valid legal and contractual basis to maintain it.
What really worries us, is that if it is true that PALP negotiated the “Suspension of the administrative and legal act of the TUPEM 015/001/2017 DGRM for a period of three-months, then that suspension would in fact increase the TUPEM validity by another three-months.
Meaning, instead of the contract being valid until January 2019, we now have that same contract with its validity increased to April 2019. In turn such an action eliminated the need for Galp/ENI to reapply for a new TUPEM licence in the future to replace current one. (Meaning they will not have to comply with all the requirements inherent to that process, i.e. new public consultation, etc.)
Similarly, the Contract, once it meets all the required extension terms and conditions, will gain through the suspension of the court proceedings, the same three months, meaning that the contract itself will be valid as well until April 2019.
Meaning, that all of us, towards the end of 2018, beginning of 2019, will be loosing a few more hairs not to mention lots of sleep …
In the interim ASMAA has prepared what we believe to be, a water-tight case of substantiated irreversibility, meaning, it has a strong probability of being granted the appropriate injunction. But that injunction application will only be submitted at the appropriate time which will be only once it is aligned to our strategic legal action objectives.
However, the main court case application, is already in a position to be submitted to court, however such submission will only be done once we have raised all the additional funds that is need to support ongoing costs and legal fees which are inherent to the legal process.
Unfortunately, there hasn’t been sufficient mobilization by other interest groups in support of ASMAA’s legal action, (which we totally understand), because we can’t disclose our strategies, as requested in exchange for any support that they would give us.
Unfortunately, many forget that ASMAA has given more than sufficient proof of our competence.
Proof of our effectiveness, of our technical know-how and of our capacity and effort, they forget that we have contributed heavily with actions, information and tools, that are of such a standard, and which were and are used extensively by all the bodies involved in this fight, being all of us that are really fighting for a common cause.
But because of the inherent risks that such fight brings, our strategies cannot be placed in the public domain, nor can we be 100% transparent in the current phase that we find ourselves in. In truth, silence, is often the secret to success: however we will always assume publicly, our responsibility and we hold each decision maker accountable for his or her individual actions and decisions.
In conclusion, we have to admit that the GALP/ENI legal team played a well-played game in their last move. But it was not checkmate yet! The game isn’t over; there are still many more moves left to be made in this game …
And to each and every one of you that wants to help us move forward, you are more than welcome to join us!
What is needed today? FUNDS / MONEY to carry this fight forward!
Laurinda Seabra - ASMAA CEO
Petra Pinto - ASMAA Legal Department