Name of the act/s*

Decree of the President of the Republic No 14-A/2020 of March 18: declared the state of emergency, on the basis of a situation of public disaster.

Decree of the President of the Republic no. 17-A/2020 of April 2: renewed the declaration of the state of emergency, on the basis of a public calamity situation.

Decree of the President of the Republic no. 20-A/2020 of April 17: stablished the second renewal of the state of emergency declaration, on the basis of a situation of public calamity.

Subject area

Constitutional law with impact on multiple areas

Brief description of the contents of the act

The state of emergency was declared to address the COVID-19 pandemic after Government first tried to deal with it under the existing legislative framework (the Legal Framework of Civil Protection - Law No. 27/2006, of July 3; the Legal Framework on Public Health Surveillance System - Law No. 81/2009, of August 21, and the Basic Health Law - Law No. 95/2019, of September 4) and having enacted the Decree-Law No. 10-A/2020, of March 13, that establishes exceptional and temporary measures concerning the epidemiological situation of the new Coronavirus.

On 18 March, the President of the Republic declared the state of emergency, under Article 19 (suspension of the exercise of rights) of the Constitution, having previously heard the Government and obtained the authorisation of the national parliament (Assembleia da República - Resolution No. 15-A/2020, of March 15 [the Parliament maintained face-to-face meetings once a week, operating with just one-fifth of the members, the quorum limit]. The declaration of the state of emergency can be grounded in a public calamity and involves the “suspension of the some of the rights, freedoms and guarantees that are capable of being suspended”, “to that which is strictly necessary for the prompt restoration of constitutional normality” (Articles 19, 134(d), 138, 161(l) and 197.1(d) of the Constitution).

The state of emergency was explained by the “need to strengthen the constitutional coverage of more comprehensive measures which need[ed] to be taken to combat this public disaster” (paragraph 5 of the first Presidential decree). The Decree of the President of the Republic No 14-A/2020 of 18 March suspended partially: i) the right of movement and fixation anywhere in the national territory; ii) the private property and economic initiative; iii) workers’ rights; iv) the international movement; v) the right of assembly and demonstration; vi) the freedom of religion in its collective dimension; vi) and the right of resistance.

The Decree of the President of the Republic no. 17-A/2020, of April 2 [authorised by the Parliament Resolution No. 22-A/2020, of April 2], highlighted that, having the health authorities “determined the transition from the containment phase to the mitigation phase”, it was necessary to increase “the level of prevention” or otherwise the effort made would be wasted (paragraph 7). Besides the rights mentioned in the first decree, it suspended partially the freedoms to learn and teach and the right to data protection, and reinforced the restrictions of the freedom of movement and workers’ rights (for instance, suspended the right of trade union associations to participate in the drafting of labour legislation to the extent that the exercise of such right may represent a delay in the entry into force of urgent legislative measures" and extended the suspension of the right to strike). It also stated that exceptional and urgent measures could be taken to protect citizens deprived of their liberty in enforcement of a sentencing decision, as well as to protect prison staff. The second renewed declaration of state of emergence (Decree of the President of the Republic no. 20-A/2020 of April 17, authorised by the Parliament Resolution No. 23-A/2020, of April 16) renewed the previous declarations on broadly similar terms, but restored the right of workers’ committees, trade unions and employers’ associations to participate in the drafting of labour legislation and did not stated new exceptional measures for those deprived of their liberty.

Each declaration last for fifteen days, the time limit laid down in the constitution (Article 19(5)). The declarations of the state of emergency, besides the respective grounds, the specification of the rights suspended, defined the framework of subsequent public intervention. The three presidential decrees were followed by, respectively, the Decree of the Presidency of the Council of Ministers n.º 2-A/2020, of March 20 (sets out the execution rules regarding the declaration of the state of emergency made by the Decree of the President of the Republic No 14-A/2020, of March 18); the Decree of the Presidency of the Council of Ministers n.º 2-B/2020, of April 2 (regulates the extension of the state of emergency decreed by the President of the Republic no. 17-A/2020, of April 2) and Decree of the Presidency of the Council of Ministers No. 2-C/2020, of April 17 (regulates the extension of the state of emergency declared by the Decree no. 20-A/2020 of April 17). The state of emergency ended at 11:59 p.m. on May 2, 2020.

On 30 of April, the Government, under the Basic Law for Civil Protection, declared the situation of calamity, establishing, among others, “limits and conditions for circulation and the rationalization of the use of public services” (Resolution of the Council of Ministers No. 33-A/2020). It was extended by the Resolution of the Council of Ministers No. 38/2020, of May 17; by the Resolution of the Council of Ministers No. 40-A/2020, of May 29; by the Resolution of the Council of Ministers No. 43-A/2020, of June 12. The Resolution of the Council of Ministers 51-A/2020, of June 26, declared a situation of calamity (at some Lisbon’ parishes and municipalities of Lisbon’s Metropolitan Area), the situation of contingency at the Lisbon’s Metropolitan Area, with the exception of the municipalities and parishes covered by the state of calamity, and the situation of alert in all continental Portugal, with the exception of the Lisbon Metropolitan Area (“considering the nature of the events to be prevented or faced and the severity and extent of their current or expected effects” – Article 8.º of the Law on Civil Protection). The Resolution of Council of Ministers nr. 53-A/2020, of July 14, declared again in similar terms a situation of calamity, contingency and alert within the context of the COVID-19 pandemic, until 11:59 p.m. of 31 July 2020.

Comment

1. From the constitutional state of emergency to the state of calamity and the emergency legislation

Through the presidential decrees above mentioned, it was the first time in the Portuguese democracy, under the Constitution of 1976, that was declared the state of emergency. Although this declaration has a strong legal base in the Constitution and the constitutional procedure, rules of competence and time limits were observed, the regulatory framework to prevent and combat the COVID-19 pandemic raises several questions and critics related to legality, legal certainty, proportionality, effective remedy and transparency issues. Among these, it can be pointed out the following:

a)      Problems with the respect of Assembly's legislative reserved competence and related to the adoption of several administrative regulations or orders instead of legislative acts.

Before the first declaration of state of emergence, the Decree-Law No.10-A/2020, of 13 March, established exceptional and temporary measures relating to the epidemiological situation of the COVID 19. It was ‘ratified’ ex post by the Law No. 1-A/2020, of 19 March (establishing exceptional and temporary measures to respond to the epidemiological situation caused by coronavirus SARS-CoV-2 and COVID-19 disease), inasmuch, unless it also authorises the Government to do so, the Parliament has exclusive competence to legislate on the following matters Rights, freedoms and guarantees (Article 165(1)-b). Nevertheless, the Constitution forbids retroactive restrictions of fundamental rights (Art. 18(3)).

The above-mentioned Decree-Law No.10-A/2020 has been amended 13 times and rectified 2, six and on time, respectively after the declaration of state of emergence ceased to have effect.

Other multiple decree-laws were enacted, outside the sphere of execution of the state of emergency declaration; and in general, all contain many references to ministerial ordinances, that entail broad delegations of power.

The presidential declaration of state of emergence enables limitations on rights, freedoms and guarantees in an extension and in a prompt way by the Government that the ordinary legislative procedures do not enable, but under the Article 19(7) of the Constitution, the declaration of state of emergency may not affect the application of the constitutional rules concerning the competences and the modus operandi of the entities that exercise sovereignty.

b)     The huge and volatile volume of acts and administrative regulations – modified and rectified many times - that has been adopted creates opacity, uncertainty and a sense of unreliability (see https://www.dgae.gov.pt/gestao-de-ficheiros-externos-dgae-ano-2020/legis_pt-en_covid19_20200602.aspx; https://www.safecommunitiesportugal.com/emergency-legislation/).

c)      The declaration of state of calamity, although implying a less intensive list of restrictions, enabled the Government to decide alone and through resolutions (administrative regulations) rather than by legislative acts.

The state of calamity can be declared by the Government when there is the need to adopt exceptional measures to prevent, react to or restore normal living conditions in the areas affected by a “disaster”. For instance, it has determined measures like: i) the compulsory confinement for sick and actively supervised persons; ii) prohibition of events or gatherings with more than 10 people; iii) funerals only in the presence of relatives; iv) in public transport, buses with driver’s cabin; and disinfectant gel dispensers (maximum capacity of 66%); v) in public services, decentralized counters to assist the public (service by appointment). The use of warning, contingency and calamity declarations depends on the intensity of the situation and are gradual as to the intensity of the limitations that allow (Article 3, 9, 14, 17, 19, 21 of the Legal Framework of Civil Protection).

d)     Among the emergency legislation that created exceptional regimes stands out the exceptional regime of public procurement procedures launched to prevent, control, mitigate and treat the epidemic infection caused by COVID-19. It has exacerbated the lack of competition and the lack of transparency of Portuguese regulations (Pedro Telles, Portugal establishes exceptional procurement regime due to COVID-19 - http://www.telles.eu/blog/2020/3/17/portugal-establishes-exceptional-procurement-regime-due-to-covid-19; and Communication from the Commission Guidance from the European Commission on using the public procurement framework in the emergency situation related to the COVID-19 crisis 2020/C 108 I/01, C/2020/2078 - https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020XC0401%2805%29). It should also be highlighted that the Decree-Law no. 19-A/2020, of April 30, established an exceptional and temporary regime for the financial rebalancing of long-term enforcement contracts in the context of the COVID-19 pandemic, namely setting aside non-contractual liability of the State (as compensation for sacrifice) for damages caused by acts of the State or any other public entity aimed at preventing and combating COVID-19, within the scope of the powers vested by public health and civil defence legislation or as part of the emergency state.

2. Portuguese response to the health crisis, the rule of law and social state

Regarding the authorities’ responses to a health crisis, the rule of law and the social state, besides the mentioned legality, certainty and transparency issues, it emerged clearly in the Portuguese legal response to the health crisis the following problems:

a)      Problems related to the right to an effective remedy.

The right of access to a court to “defend rights, freedoms and guarantees that have been harmed or threatened with harm by any unconstitutional or illegal measures” is expressly safeguarded in the Article 6 of the Regime of the state of siege and of the state of emergency - Law 44/86, of September 30, as amended by Organic Law No 1/2011 of 30 November 2011 and by Organic Law No 1/2012 of 11 May 2012. For instance, The Ponta Delgada Court, in a decision of May 16, granted a petition for immediate release (habeas corpus) made by a petitioner against the imposition of quarantine in hotels by the Government of the Azores [is an autonomous region, with its own political and administrative statutes and self-government institutions]), due to the national Parliament's competence on the matter (https://comarcas.tribunais.org.pt/comarcas/noticia.php?com=acores&id_noticia=690).

Apart from this case, there is not any noticeable cases related to the emergency legislation. Courts has not yet actually exercised the power to oversight actions taken by the executive or omissions in the public health context. Furthermore, the functioning of the courts has significantly decreased, with the general rule of suspension, after March 9, of procedural deadlines until the June 3rd (Law 16/2020, May 29). Only the continuity of urgent processes, namely those related to minors at risk, to urgent educational guardianship, to imprisoned defendants, to some injunctive proceedings… were secured.

The justice system has showed not to be technologically prepared to continuing functioning and that it cannot deliver outcomes without increasing delay.

b)     Problems with access to public services.

The fragile evolution of the Portuguese State towards a “digital welfare state” (United Nations, Report of the Special rapporteur on extreme poverty and human rights, A/74/493, 11 October 2019 - https://undocs.org/A/74/493) has meant that the continuity of many services has not been sufficiently ensured, such as ordinary primary and secondary health care, protection of children at risk; social and educational responses; immigrants services (but National Migrant Integration Support Centres were obliged to remain open and provide in-person services during the state of emergency), inspections (except the Working Conditions Authority – see, for instance, Order No. 4756-B/2020, of April 20, that request of inspectors and senior technicians necessary to strengthen the inspection powers of Working Conditions Authority) and, in general, services that carry out administrative tasks that condition the economic private activities.

3. The meaning of declaring a state of emergency in an uncertain context as to its final term

It is stressed that the purpose of constitutional regulation of emergency situations is to preserve the constitutional normality (Article 19(8) of the Constitution). So, once the emergency situation disappeared, the normal regime of fundamental rights returns, as well as legal normality. However, it must be asked what this comprehension means when the emergency situation extends over time and its final term is uncertain.

As well, it must be asked what legal approach and instruments are really necessary to address heathy situations like COVID-19 pandemic. It has been discussed how open the presidential declaration of emergency can be, the extensive emergency powers of Government and the adopting of legislation and social and economic measures that does not entirely fit within the emergency framework. These questions are useful, especially if we bear in mind that Portuguese response to prevent and combat the COVID-19 pandemic has used three legal bases and models (Tom Ginsburg e Mila Versteeg, “States of Emergencies: Part I”, April 17; and “States of Emergencies: Part II”, April 20 - Harvard Law Review Blog. Retrieved from URL: https://blog.harvardlawreview.org/states-of-emergencies-part-i/), and not just one, to cope with COVID-19: i) the declaration of state of emergency under the Constitution; ii) the existing legislation dealing with public health or national disasters; iii) and passed new emergency legislation.

Due to the extent and content of the legislation, it is worth asking whether it would be necessary to have exceptional or derogatory legislation and legislation issued in a less transparent way if public institutions and the public administration were better equipped or were better prepared.

Secondary sources/ doctrinal works (if any)

-        Gomes, Carla Amado; Pedro, Ricardo: Direito Administrativo de Necessidade e de Exceção, AAFDL, 2020.

-        Imparato, Emma A.: Il Portogallo al banco di prova dell’emergenza sanitaria mondiale, DPCE Online, [S.l.], v. 43, n. 2, july 2020. ISSN 2037-6677. Available at: <http://www.dpceonline.it/index.php/dpceonline/article/view/974>. Date accessed: 21 july 2020.

-        Lomba, Pedro: The Constitutionalized State of Emergency: The Case of Portugal, VerfBlog, 2020/4/15, https://verfassungsblog.de/the-constitutionalized-state-of-emergency/, DOI: https://doi.org/10.17176/20200415-212705-0.

-        Various authors, Estado de Emergência - COVID-19, Implicações na Justiça - http://www.ministeriopublico.pt/pagina/estado-de-emergencia-covid-19-implicacoes-na-justica-e-book-0.

-        Violante, Teresa; Lanceiro, Rui T.: Coping with Covid-19 in Portugal: From Constitutional Normality to the State of Emergency, VerfBlog, 2020/4/12, https://verfassungsblog.de/coping-with-covid-19-in-portugal-from-constitutional-normality-to-the-state-of-emergency/, DOI: https://doi.org/10.17176/20200412-152458-0.

*Act citation /year and number

2020

Enacted by

President of the Republic

Official link to the text of the act

Link to several of the acts mentioned: https://www.safecommunitiesportugal.com/emergency-legislation/; https://www.dgae.gov.pt/gestao-de-ficheiros-externos-dgae-ano-2020/legis_pt-en_covid19_20200602.aspx.

Name of the act/s*

Legal framework of individual and remunerated passenger transport activity in vehicles uncharacterized, by means of electronic platforms (TVDE) - Act nº 45/2018, of 8^th October

Subject area

Electronic platforms for passenger transport services

Brief description of the contents of the act

The Act (so-called 'Uber law') establishes, on the one hand, the legal framework for the activity of individual and remunerated transport of passengers in 'ordinary' or unmarked vehicles based on electronic platforms. On the other hand, it regulates the activity of electronic platforms that organise and make available to users this mode of transport by providing intermediation services between users and TVDE operators.

Both the activities are subject to a licence issued by the Institute of Mobility and Transportation, I.P. This shall examine the application and give its decision within 30 working days, which shall be deemed to have been tacitly granted if no decision is taken within that period.

The new type of transport service is carried out through the articulation and coordination of «three operative figures»: i) the transport operators, which are the legal persons who provide, through their drivers, a transport service to users who submit their requests to an electronic platform of which the operators are members; ii) the drivers; and iii) the operators of the electronic platforms.

The transport operators are obliged to ensure full and permanent compliance with requirements relating to vehicles and drivers engaged in the provision of TVDE services and to labour, health and safety at work and social security legislation.

The operators of electronic platforms have the following constraints:

a)      They must certify compliance with the legal and regulatory requirements applicable to the vehicles;

b)     They are obliged to pay a contribution (to a percentage, between a minimum of 0,1 % and a maximum of 2 %, of the intermediation fee charged for all its operations), which is intended to compensate for the administrative costs of regulation and supervision of their activities and to stimulate the achievement of national objectives in the field of urban mobility;

c)      They must monthly report to the Mobility and Transport Authority information regarding their activities (notably the number of trips made, individually billed amounts and intermediation fees charged);

d)     They must have, and communicate to Institute of Mobility and Transportation, I.P., a representative for the Portuguese territory;

e)      They must, before the start of each trip and during its completion, provide users information on the terms and conditions of the services provided and, particularly, the price of the trip, the elements making up the calculation formula and their weighting factor; digital maps for real-time tracking of the vehicle path; and driver identification, including his/her unique TVDE driver registration number and photograph; …

As far as drivers are concerned, specific requirements are provided: they have to hold a category B driving license for more than three years; have to have completed a compulsory training course (defined by the Ordinance no. 293/2018, of 31 October), which is valid for five years; and be a holder of a TVDE motorist certificate. They must have a written contract with TVDE operators, who are their employers. They cannot work for more than ten hours within a 24-                -hour period, regardless of the number of platforms on which the TVDE driver provides services.

TVDE drivers are not allowed to pick up passengers on the street without an appointment through the electronic platform and they cannot drive in bus lanes and cannot stop at taxi ranks.

The TVDE service may be remunerated by applying one or more fares to the distance travelled and/or time spent on transport, or by applying a fixed price determined before the service was contracted. The fee charged by the operator of the electronic platform must not exceed 25 % of the value of the trip.

The provision of TVDE services cannot be refused except in limited cases expressly provided for and there is a specific duty to ensure the transport of passengers with reduced mobility and of their means of locomotion. Hence, users are protected as consumers of uncharacterized vehicles and as consumers of electronic platforms.

The activities of electronic platform operators, TVDE operators, as well as TVDE vehicles and drivers are subject to supervision and regulation by eight different authorities.

Infringements to several provisions are qualified as misdemeanours, which are punishable with fines ranging from € 2,000 to € 5,000 in the case of natural persons and from € 5,000 to € 15,000 in the case of legal or corporate persons. Depending on the seriousness of the offence and under the terms of the general regime of misdemeanours, the accessory sanction of prohibition of the exercise of the activity for a maximum period of two years may be applied.

Comment

The enactment of the Act n.º 45/2018 was preceded by many months of parliamentary discussion (Proposed Law 50/XIII - https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=40897), by clashes with the taxi sector (which activity is strictly regulated), and by judgments that determined to Uber Technologies, Inc., United States, the compliance with all the legislation relating to the licensing of road transport activities (Judgement of the District Court of Lisbon, First Section, of 24 April2015, Case no. 7730/15.0T8LSB, available at http://observador.pt/wp-content/uploads/2015/04/decisao-comarca-de-lisboa-uber.pdf; and Judgment of Lisbon Court of Appeal of 27 April 2017, Case no. 7730-15.0T8LSB.L1-8 (http://www.dgsi.pt/jtrl.nsf/-/0BC185DC4E2275DF802581290054C1D1).

The Act 45/2018 puts an end to the unconditional freedom to enter into the market of providing transport service mediated by online platforms. It introduced a "full package" regulation system, integrating mechanisms not only of prior control, but also of inspection and successive supervision ant it deals with questions concerning competition law, consumer protection and employment law, among others. It has brought more transparency and predictability to the use of the transport service.

Bearing in mind the Judgment of December 20, 2017, Case C‑434/15, Asociación Profesional Élite Taxi v. Uber Systems Spain SL and the Judgment of April 10, 2018, Case C-320/16, Uber France SAS – that qualified the services provided by Uber as “services in the field of transport” (respectively paragraph 41 and paragraph 21) -, it is possible to argue that the Portuguese regulation is in line with the ECJ case law, which stressed that these services are not “covered by Article 56 TFEU on the freedom to provide services in general but by Article 58(1) TFEU, a specific provision according to which ‘freedom to provide services in the field of transport shall be governed by the provisions of the Title relating to transport” (Case C‑434/15, no. 44).

The Act 45/2018 draws a clear distinction between electronic platforms operators and transport operators: the former intermediate the conclusion of urban transport contracts on demand; and the latter ones provide the transport service and are responsible for the activity of drivers. In addition, under the new regulation, the drivers have become professional drivers, whose employers are the transport operators.

In this legal framework, even if the electronic platforms operators exercise an important role or significant influence over the transport service, it is not certain whether they provide “services in the field of transport”. Nevertheless, the requirements they have to fulfil, namely the need of a licence, are quite demanding.

Advocate General Szpunar, in Conclusions delivered on 11 May 2017, Case C‑434/15, stated that he does not think that “the need to ensure the effectiveness of the rules on the provision of transport services stricto sensu can warrant the establishment, as a preventive measure, of the requirement to have authorisation for intermediation services in general”; and that [u]nlawful activities in that field can be countered only with a system of enforcement” (no 89).

From this perspective, there seems to be some excess in the Portuguese legislator's option for a «full control» of electronic platforms operators.

Secondary sources/ doctrinal works (if any)

Amado, João Leal and Moreira, Teresa Coelho - “La legge portoghese sul trasporto passeggeri tramite piattaforma elettronica: soggetti, rapporti e presunzioni”, Labour & Law Issues, 2019, LLI, Vol. 5, No. 1, 2019, pp. 47-79 (https://labourlaw.unibo.it/issue/view/804);

Carvalho, Joana Campos – “Online platforms: concept, role in the conclusion of contracts and current legal framework in Europe = Plataformas en línea: concepto, papel en la conclusión de contratos y marco legal actual en Europa”, Cuadernos de Derecho Transnacional, 2020, Vol. 12, No. 1, pp. 863-874 (https://e-revistas.uc3m.es/index.php/CDT/issue/view/595);

Carvalho, Jorge Morais - “Developments on Uber in Portugal”, EuCML, Reports, Journal of European Consumer and Market Law, 2015, 4, pp. 154-158;

Estancona Pérez, Araya Alicia - “La sentencia del Tribunal de Justicia de la Unión Europea de 20 de diciembre de 2017: (caso Uber) y su influencia en la iniciativa legislativa portuguesa”, Estudos de Direito do Consumidor, n. 14, 2018, pp. 53-94;

Leong, Hong Chen - “The ‘Uber’ Law”, Sérvulo Publications, 21 Aug 2018, article about the legalization of the new model of individual passenger transport service introduced in Portugal with the arrival of Uber (https://www.servulo.com/pt/investigacao-e-conhecimento/A-Lei-ldquoUberrdquo-Lei-n-452018-de-10-de-agosto/6264/);

Neves, Inês – “Os condutores da Uber: a presunção de culpa do condutor ‘por conta de outrem’, na responsabilidade civil por factos ilícitos”, Revista da Faculdade de Direito da Universidade do Porto, Porto, a.12-14 (2015-2019), pp. 285-308;

OECD/ITF, Regulation of for-fire passenger transport: Portugal in International Comparison (https://www.itf-oecd.org/regulation-hire-passenger-transport-portugal).

*Act citation /year and number

Act nº 45/2018, of 8^th October

Rectification Declaration No. 25-A/2018 republished (in the Portuguese official gazette on August 10^th) in its entirety the text, that was originally published contained inaccuracies vis-à-vis the final approved version of the law.

Enacted by

Parliament (Assembleia da República)

Official link to the text of the act

https://dre.pt/web/guest/pesquisa/-/search/116029380/details/maximized?p_p_auth=AQ25DNXo

YEAR 

2019

Osservatorio sulle fonti / Observatory on Sources of Law

----------------------------------------------------------------------------

Section: Sources of Law in the EU member States

Portugal

By Ana Neves

Name of the Act/s

Law No 58/2019, which ensures the implementation in Portugal of Regulation (EU) 2016/679, the General Data Protection Regulation (GDPR)

.

Date of entry into force of original text

The Law No 50/2019 entered into force on the day following its publication, and so on 9 August 2019

Date of Text (Adopted)

August 8, 2019

Type of text 

(name in English / name in the official language)

Law of the Parliament / Lei

Law ensuring the implementation in the national legal order of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) / Assegura a execução, na ordem jurídica nacional, do Regulamento (UE) 2016/679 do Parlamento e do Conselho, de 27 de abril de 2016, relativo à proteção das pessoas singulares no que diz respeito ao tratamento de dados pessoais e à livre circulação desses dados.

If federal State

No. Portugal is a unitary state. □

If Regional State 

□No. Portugal has just two autonomous regions, the Azores and the Madeira archipelagos. These have their own political and administrative statutes and self-government institutions.

Enacted by

Parliament

Reference to the Constitution (art)

Article 161 (c) 

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

Subject area

Fundamental rights; personal data; European Union.

If the act implements a source of EU Law: cite the relevant EU legal source

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GPDP).

Comment 

1. The Law 58/2019, with 68 articles, intends to implement the GDPR. It introduces some details and some specific provisions to those in this regulation. Simultaneously, it revokes the former personal data protection law, the Law No. 67/98, of 26 October, and amends and republishes the law on the organization and operation of the National Data Protection Commission (“CNPD”), Law No. 43/2004, of 18 August.

The Law 58/2019 applies to the processing of personal data in national territory, regardless of the public or private nature of the controller or processor, even if the processing of personal data is carried out in compliance with legal obligations or in the pursuit of public interest tasks, without prejudice to the exceptions provided for in Article 2 of the GDPR. It also applies, in certain cases, to the processing of personal data undertaken outside national territory.

2. Three types of provisions can be distinguished: provisions on some organisational aspects; provisions related to substantive provisions and provisions about remedies, liability and penalties.

2.1. Regarding organisational aspects, the Law 58/2019 provides new powers to CNPD in addition to those set out in Article 57 of the GDPR (Chapter II) and it has some provisions about the data protection officer (Chapter III). Mainly: i) it lists the public authorities which are obliged to have a data controller; ii) repeats the provisions of Article 37(1) of the GDPR on private entities; and iii) and establishes that professional certification is not required for data protection performing his functions; that he has a duty of professional secrecy during and after the end of his term of office; and that, besides the competences specified in GDPR, he shall ensuring audits, making users aware of security issues and to ensure relations with data subjects in matters covered by the GDPR and national data protection legislation. The law also provides also about accreditation, certification and codes of conduct: the competent authority for the accreditation of certification bodies in data protection matters is the Portuguese Accreditation Institute, which has to take into account, not only the requirements set out in the GDPR, but also additional requirements established by the CNPD (Chapter IV).

2.2. As to the substantive aspects, on the one hand, the Law 58/2019 dedicates one chapter to special provisions (Chapter V), related to child's consent, personal data of deceased persons, data portability and interoperability, video surveillance, duty of secrecy, storage limitation, transfers of data to third countries to the European Union or international organisations, the processing of personal data by public authorities for purposes other than those determined by their collection. On the other hand, it has a chapter about “specific situations of processing of personal data” (Chapter VI): it has provisions about freedom of expression and information, the publication in official journal, public access to official documents, the publication of public procurement data, labour relations, treatment of health data and genetic data, centralised health databases and registers, processing for archiving purposes in the public interest, scientific or historical research purposes and statistical purposes. 

With regard to “special provisions”, for instance, as regards the offer of information society services directly to a child, the processing of personal data is lawful through consent at the minimum age of 13, without the need for intervention by the holders of their parental responsibilities. About the right to data portability, it encompasses the data provided by the data subjects and the portability shall be processed in an open format, if possible. Concerning the sound recording by video surveillance systems, this is prohibited, except in the period in which the facilities under surveillance are closed or when a prior authorization has been obtained from the CNPD for that purpose. 

With respect to the processing of personal data in specific situations, the Law 58/2019 has provisions on conciliation of data protection with the freedom of expression and information and with public access to official documents; they mainly refer in general terms to the need of them to be respected. The provisions on the publication in official journal and on the publication of public procurement data intend to restrict to the greatest extent possible the personal information to be provided. As regards to the processing of health and genetic data, access shall be governed by the need--to-know principle, and the data controller is obliged to notify the data subject of any access to such data, and as so has to implement a traceability and notification mechanism. It provides that for purposes of preventive or occupational medicine, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services, the access to data shall exclusively be done electronically, except for technical impossibility or express indication of the data subjection otherwise. Concerning labour matters, unless otherwise provided by law, the employee's consent does not constitute a requirement for the legitimacy of the processing of his personal data where the processing would result in a legal or economic advantage for the worker; or where such processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract. Recorded images and other personal data may be used for the purpose of establishing disciplinary responsibility, in so far as they are used for the purposes of criminal proceedings. The processing of biometric data is only considered lawful for attendance control and access control to the premises.

Public entities may process personal data for purposes other than those determined by the collection, but this is must exceptional and must be duly justified with a view to ensuring the pursuit of the public interest that cannot otherwise be safeguarded, under the terms of subparagraph e) of paragraph 1, paragraph 4 of Article 6 and subparagraph g) of paragraph 2 of Article 9 of the GDPR. On the other hand, they may, under the terms of article 83(7) of the GDPR, upon a duly reasoned request, request the CNPD to waive the imposition of fines for a period of three years from the entry into force of this law.

2.3. The Law 58/2018 has a chapter about remedies, liability and penalties (Chapter VII - administrative and jurisdictional protection). It is stablished that CNPD is entitled to intervene in legal proceedings in the event of a violation of the provisions of the GDPR and of the Law 58/2019, and shall report to the Public Prosecutor's Office criminal offences of which it is aware, in the exercise of its functions and because of them, as well as to perform the necessary and urgent precautionary acts to ensure the means of evidence. The new law stipulates that it is the administrative courts that have jurisdiction to decide the actions brought against the CNPD. 

There is a section (Section II) that identifies administrative infractions and another that identifies criminal offenses (Section III). The minimum amounts of the administrative fines are set out, depending on whether the offender is a natural person, a SME or a large company, and may vary from €500 for serious offenses committed by natural persons to €20,000,000 or 4% of the total worldwide annual turnover, in the case of very serious breaches by large companies. The crimes penalties - that are similar to those provided for in the previous personal data protection law, except for the crime of violation of the professional secrecy duty, whose maximum limit is reduced to half - are up to 2 years imprisonment or a fine of 240 days.

3. The GDPR is having a major impact and is motivating to some extent an excessive practice and similar positions. On the one hand, regarding public administration, the GDPR is being used to difficult even more the access to administrative information and the public access to official documents (for instance, see OECD, Reviewing and supporting Regulatory Impact Assessment in Portugal. Project Inception Report. Final draft, 2017 (https://www.jurisapp.gov.pt/custa-quanto/relat%C3%B3rios-de-atividade/), p. 24 - (“Open data is scarce in Portugal. Within the public administration, one factor aggravating the difficulty to generate relevant data is the confidentiality regime which hampers the establishment of common databases and data sharing.”). On the other hand, the National Data Protection Commission, on September 3^rd, 2019, by the Deliberation 2019/494, has defined its understanding of fifteen rules of the Law 58/209 and informed that it will not apply them in future cases concerning the processing of data and the conduct of controllers and processors (https://www.cnpd.pt/bin/decisoes/Delib/DEL_2019_494.pdf). Among these rules is, for instance, the one that allows the processing of personal data by public entities to be carried out for purposes other than those justifying data collection (Article 23 (1)), which, in the view of the CNPD, does not comply with the requirements imposed by article 6 (4) of the GDPR, and the principle of purposes of collection. Regarding Article 28 (3) (a), CNPD understands that this is an excessively restrictive limitation of worker consent, which does not guarantee the dignity and fundamental rights of workers. According to CNPD, the territorial scope of the law compromises the application of procedural rules and the distribution of powers between national supervisory authorities, where cross-border processing is concerned (Article 2 (1) and (2)).

It also worthy to highlight that on 25th September 2018, the European Data Protection Board delivered the Opinion 18/2018, on the draft list of the National Data Protection Commission regarding the processing operations subject to the requirement of a data protection impact assessment (Article 35.4 GDPR). The Board concluded that the draft list of the Portuguese supervisory authority may lead to an inconsistent application of the requirement for a data protection impact assessment and proposed some changes. The main issue related to the fact that it had included in the list of types of processing operations that should not be included (https://edpb.europa.eu/our-work-tools/our-documents/valdybos-nuomone-64-str/opinion-182018-draft-list-competent-supervisory_pt).

Secondary sources/ doctrinal works (if any)

Several doctrinal works, for instance, UNIO, EU Law Journal, Vol. 4, no. 2, July 2018, https://doi.org/10.21814/unio.4.2; and Forum de Proteção de dados, CNPD, n.º 1, julho de 2015; n.º 5, novembro 2018,https://www.cnpd.pt/bin/revistaforum/revistaforum.htm.

Available Text

https://dre.pt/web/guest/pesquisa/-/search/123815982/details/maximized

YEAR

2019

Osservatorio sulle fonti / Observatory on Sources of Law

----------------------------------------------------------------------------

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