YEAR

2019

Osservatorio sulle fonti / Observatory on Sources of Law

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Section: Sources of Law in the EU member States

Portugal

By Ana Neves

Name of the Act/s

Law No 50/2018, August 16: Framework Law about the transfer of powers from the State to local authorities and intermunicipal entities.

19 sectoral legal acts (decree-laws) were enacted, in 2018 and 2019, which put into practice the transfer of powers.

Date of entry into force of original text

The Law No 50/2018 entered into force on the day following its publication (August 17), but it has gradually produced its effects after the approval of the decree-laws above-mentioned.

Date of Text (Adopted)

August 16, 2018

Type of text

(name in English / name in the official language)

Law of the Parliament / Lei

Framework law on the transfer of powers from the state administration to local authorities and intermunicipal entities / Lei-             -quadro da transferência de competências para as autarquias locais e para as entidades intermunicipais

Enacted by

Parliament

Reference to the Constitution (art)

Article 161 (c) and Articles 6 and 236

(https://dre.pt/constitution-of-the-portuguese-republic)

Subject area

Local government; administrative decentralisation.

Comment

1. Portugal is a unitary state, partially regionalised (with the Autonomous Regions of the Azores and Madeira archipelagos, that have self-government institutions), and that should respect the principles of subsidiarity, the autonomy of local authorities and the democratic decentralisation of the Public Administration (Article 6 (1) of the Portuguese Constitution, of 1976).

The local authorities are the municipalities (the main local authorities; 308 municipalities) and the parishes (at infra-municipal level; 2.882 parishes). “The law shall regulate the responsibilities and organisation of local authorities and the competences of their organs, in harmony with the principle of administrative decentralisation.” (Article 237 (1) of Constitution). The administrative decentralisation towards local authorities has been a gradual and slow process. This process has been occurring through the transfer of competences by law and through the delegation of competences by the conclusion of inter-administrative contracts between State and local authorities, between municipalities and parishes and also between municipalities and inter-municipal entities (municipalities associations).

2. The law 50/2018, August 16, is a new and deep development in the decentralisation process. It encompasses the transfer of competences in several areas, such as education (basic and secondary education), health (primary and continuing health care), social matters, culture, housing, civil protection, justice, public security, tourism and the management of the beaches integrated on the State’s public hydric domain, seaports or fishing support installations.

It aims to ensure, in a better efficient way and with more effectiveness, the management of public services, to guarantee universality, proximity, quality and equal opportunities in access to them and, as a consequence, to achieve a greater territorial cohesion.

The transfer of the above-mentioned new competences, the identification of their nature and the form of the resources’ allocation are materialized through legal acts of sectoral scope (decrees-law) related to the various areas and is to be carried out gradually until 1 January 2021. Nineteen sectoral decrees-law were enacted, the last one on May 28, 2019 (Decree-Law no. 72/2019). In addition, the local finance law was modified (Law no. 51/2019, August, 16), namely, a decentralisation financing fund was created and the participation of municipalities in VAT redefined.

3. The legal transfer of powers framed by Law 50/2018 encompasses also the transfer of some competences to intermunicipal entities, that are associations that bring together municipalities to exercise a part of their powers jointly. For instance, the intermunicipal entities have now competences for the management of projects financed by European funds and for investment capture programmes (Decree-Law no. 102/2018).

4. The institutional reorganisation of powers and resources in reference has redefined the sharing of attributions between the State and local authorities and their relationship, putting the challenges associated with a multi-level governance context (e.g., OECD, 2017, Multi-level Governance Reforms:Overview of OECD Country Experiences, OECD Multi-level Governance Studies, OECD Publishing, Paris, https://doi.org/10.1787/9789264272866-en).

Despite the uncertainties as to the proper implementation of the transfer of powers and the safeguarding of the necessary financial resources, it reinforces the role and responsibilities of local authorities in meeting the needs of their populations and it could enhance transparency and accountability and strength opportunities for democratic governance.

Secondary sources/ doctrinal works (if any)

Several authors, “Em Debate: O processo de descentralização e transferência de atribuições e competências para a Administração Local”, Revista de Direito Administrativo, n.º 5, Maio-Agosto, 2019, pp. 33-62.

Constitutional Court ruling 296/2013, preventive monitoring of the constitutionality related some rules of the legal regime of local authorities and intermunicipal entities (https://dre.pt/pesquisa/-/search/496883/details/maximized)

Available Text

https://www.anmp.pt/index.php/39-informacoes-djur/571-noticias-lembretes-descentralizacao