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Brief description of the contents of the act
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The Act under comment is the transposition of the Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law. It was published on 20 December 2021 and entered into force on 18 June 2022[1].
Leggi tutto...
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AUTHOR (name and surname)
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Ana Neves
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COUNTRY
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Portugal
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YEAR
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2022
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Name of the act/s*
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Climate framework Act
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Subject area
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Environmental Law
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Brief description of the contents of the act
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1. The climate framework Act was enacted on 31 December 2021 and entered into force on 1 February 2022 February. It is the first law in Portugal that addresses climate issues in such broad terms.
It brings together a set of regulatory policy and legal instruments on climate change, reinforcing programmatic legal instruments - such as the National Strategy for Adaptation to Climate Change 2020, the Roadmap to Carbon Neutrality 2050, the National Energy and Climate Plan 2021‑2030, and the Action Programme for Adaptation to Climate Change 2019 (https://climate-adapt.eea.europa.eu/countries-regions/countries/portugal). It builds on the Environment Basic Law (Act no. 19/2014 of 14 April 2014 - https://leap.unep.org/countries/pt/national-legislation/environment-basic-law-no-192014), that sets out a climate change policy (Art. 11-(a)), which implies an integrated approach of the various socio-economic sectors and of the biophysical systems through a development strategy based on a competitive low carbon economy and on the adoption of mitigation and adaptation measures). The climate framework Act repeals the Act no. 93/2001, of 20 August 2001, that - to prevent climatic changes and address their effects –required the drawing up of a plan to reduce emissions, adapt to climate change, and raise awareness, and created a National Observatory on Climate Change to collect information on and research climate change, and report to the legislature.
2. The climate framework law “lays the foundations for climate policy” (Article 1). The main objective is to achieve climate neutrality by 2050 (a neutral balance between greenhouse gas emissions and carbon sequestration) – Art. 18. It introduces targets to decarbonise the economy and to achieve sustainable development. The main targets are: i) to reduce at least 55% by 2030, 65% to 75% by 2040, and 90% by 2050 of greenhouse gas by reference to the 2005 figure; ii) to reach at least 13 megatons on average of equivalent net CO2 sink from the land use and forestry sector and marine and coastal ecosystems between 2040 and 2050; iii) and to approve sectoral plans for mitigation and adaptation to climate change by the end of 2023 (Articles 14, 19, 22, and 74).
3. The Act is divided into seven chapters, with the following sequence: general principles (Chapter I); climate rights and duties (Chapter II); climate policy governance (Chapter III); planning and assessment instruments (Chapter IV); economic and financial instruments (Chapter V); sectoral climate policy instruments (Chapter VI); and final and transitional provisions (Chapter VII). The main content of each of these Chapters is as follows:
a) Regarding general principles, Chapter I declares a climate emergency (art. 2), sets 17 climate policy goals (art. 3) and eleven climate policy principles (art. 4). The objectives are, namely, the following: i) to promote a rapid and socially balanced transition towards a sustainable economy and society that are neutral in greenhouse gases; ii) to guarantee climate justice, ensuring the protection of communities most vulnerable to the climate crisis, respect for human rights, equality and collective rights over the commons; iii) to ensure a sustainable and irreversible trajectory of reduction of greenhouse gas emissions; iv) to promote the use of energy from renewable sources and their integration into the system national energy; v) to promote the circular economy, improving energy and resource efficiency; vi) to develop and reinforce current sinks and other carbon sequestration services; vii) to strengthen national resilience and capacity to adapt to climate change; viii) to combat energy poverty; ix) to stimulate sustainable financing and promoting information on climate risks by economic and financial agents; x) to ensure committed, ambitious and leading participation in international negotiations and international cooperation; xi) to reinforce the transparency, accessibility and effectiveness of information, the legal framework and information, reporting and monitoring systems.
The climate policy principles set out are the general principles of environmental law acknowledge in Portuguese legal system and also the international cooperation principle and the principle of valuing knowledge and science, based on which decisions are taken (Art. 4 (e) and (f)).
b) In Chapter II, on climate rights and duties, it is enshrined the right to climate balance - defined as “the right to defend oneself against the impacts of climate change, as well to demand that public and private entities comply with their duties and obligations regarding climate change” – and procedural and participation rights; and “the duty to protect, preserve, respect and ensure the safeguarding of the climatic balance” (Articles 5 to 7 and 8). The chapter also lists the public and private entities concerned by climate-related actions (Art. 8).
c) On climate policy governance (Chapter III), it is created the Council for Climate Action (CCA), which must prepare studies, assessments and opinions on climate action and related legislation (Art 13). The CCA includes, besides personalities of recognised merit with knowledge and experience in the different areas affected by climate change, the president of the National Council for the Environment and Sustainable Development (https://dre.pt/dre/detalhe/decreto-lei/221-1997-195800), a representative of the NGO's and at least one young citizen resident in Portugal (Art. 12).
Chapter III sets out also foreign policy guidelines. According to these, the Government must actively defend the definition of the climate refugee concept and its status, cooperate with countries of the global south, providing support for the implementation of the measures envisaged in the Sendai Framework for Disaster Risk Reduction 2015-2030 (https://www.undrr.org/publication/sendai-framework-disaster-risk-reduction-2015-2030); and to strive for the recognition by the United Nations of the stable climate as a Common Heritage of Humanity (Art. 15 (e) and (f); and https://www.commonhomeofhumanity.org/what-we-do).
Government must, as well, [p]romote climate security, identifying the risks and acting to prevent and mitigate the consequences of climate change on public order, security and peace, the integrity of people and property and the regular exercise of rights, freedoms and guarantees” (Art. 17).
d) As regards the planning and assessment instruments (Chapter IV), on the one hand, Government must develop and update mitigation and adaptation plans (Articles 20-24), and must adopt a carbon budget. This shall establish “a five-year overall limit on greenhouse gas emissions, in alignment with other climate policy instruments and international guidelines” (Art. 20-1(b) and 7). On the other hand, it is provided that the State must have a “national inventory of anthropogenic emissions by sources and removal by sinks of atmospheric pollutants in accordance with European and international requirements and guidelines” (Art. 25) - National System for the Inventory of Emissions by Sources and Removals by Sinks of Air Pollutants, which was, in fact, created already in 2005 by Council of Ministers Resolution No 68/2005 - https://rea.apambiente.pt/content/greenhouse-gas-emissions?language=en). That Government shall also present to Parliament an annual report on climate policy execution (Art. 26); and legislative procedures must take into account the impact of their initiatives on the climate balance (Art. 27).
e) With regard to economic and financial instruments, Chapter V establishes guiding principles on climate for budgetary and fiscal policies (Art 28). It is provided that a budgetary allocation for climate policy purposes shall be consolidated in the State Budget (art 29). Government shall create a category of tax deductions (Green Personal Income Tax), under the Corporate Income Tax Code, that benefits taxpayers who purchase, consume or use environmentally sustainable goods and services (Art. 30). It shall also subject petroleum and energy products to a carbon price determined in accordance with best international practices (Art. 32); and it shall provide for a specific financial instrument to support climate policies (Art. 33). Guiding principles on climate issues that public and private entities must adopt in their financial policies, financial management, support for capitalisation and borrowing are defined (art 34). The public and private agents and institutions, in their financing decisions, should take into account the climate risk and the climate impact (Art. 35-1). Failure to consider climate risk and climate impact in the short, medium and long term is considered “a breach of fiduciary duties” (Art. 35-3).
Regarding sectoral climate policy instruments, these concern energy policy, transport policy, materials and consumption policy, the agri-food chain, carbon sequestration strategies, climate education and research, development and innovation, international cooperation, the green economy and just transition, and enforcement (Articles 39-72). For instance, it is stated that the State shall encourage the decarbonisation of the electroproduction system, ensuring: (i) the production of electricity from renewable sources; (ii) the prohibition of the use of coal for the production of electricity, from 2021 onwards; and (iii) the prohibition of the use of natural gas of fossil origin for the production of electricity, from 2040 onwards, provided that security of supply is ensured (Art. 40).
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Comment
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According to Parliament Environment, Energy and Spatial Planning Committee, the aim of the climate framework law “is to comply with the provisions of Articles 9 ("Fundamental tasks of the State") and 66 ("Environment and quality of life") of the Constitution of the Portuguese Republic …, making the right to a healthy environment a reality” (opinion of 10 January 2020 -https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=44220).
The Act under comment is a comprehensive regulation of multiple aspects that impact on climate on different sectors (such as the energy industry, construction, agriculture, fisheries, financial assets and green taxation). Four aspects stand out in this regulation:
a) The complexity and porosity of the law
The Portuguese climate framework law matches the “trend in the adoption of formal climate legislation that is economy-wide or cross-sectoral in scope, sets out both a broad and long-term direction for climate policy, and ensures some measure of accountability for the executive branch” (Jennifer Huang, “Exploring Climate Framework Laws and The Future of Climate Action”, 38 Pace Environmental Law Review, 2021, p. 285 [https://digitalcommons.pace.edu/pelr/vol38/iss2/3]). In fact, it recognises the current climate emergency and encompasses a large range of principles, subjects, instruments, and ways of implementation, providing a durable legal framework for tackling climate challenges.
Nevertheless, despite being a framework law, it has high normative density, and is complex. In fact, several of its provisions are programmatic and aspirational, and many other are repetitive, not clear and understandable to citizens. Moreover, the issuing of several further regulations is foreseen. For instance, the Government shall approve the first set of sectoral mitigation plans within 24 months (Art. 22-3); and municipal climate action plans have to be approved by the municipal assemblies also up to 24 months after the entry into force of the law (Art. 14-2); the regulatory and supervisory bodies shall, within one year from its publication, identify the legislative and regulatory changes necessary for companies to integrate exposure to climate scenarios and the potential financial impacts resulting therefrom into corporate governance, following the recommendations of Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 (and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups), the taxonomy principles on environmentally sustainable activities of the European Union and international recommendations and good practices (Art. 78).
Therefore, it is a multifaceted and demanding law, that will be difficult to implement, within the constraints of national institutional system (for a diagnosis of this, see, for example, Supporting reforms that contribute to efficient and high quality public administrations - https://ec.europa.eu/reform-support/strengthening-regulatory-impact-assessment-portugal_pt; and
SWD (2021) 146 final, Commission Staff working document Analysis of the recovery and resilience plan of Portugal - https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021SC0146).
b) An Act in dialogue with EU law
The Portuguese climate framework law does not mention the European climate law or correlated specific regulation (Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and Regulation (EU) 2018/1999 of 11 December 2018 on the Governance of the Energy Union and Climate Action). Nevertheless, there is a clear link to the Portuguese commitments within the European Union. Namely, it provides that:
a) Budgetary and fiscal policies should respect “adequate European funding for investments and activities necessary to meet climate policy objectives” (Art. 28-(a));
b) The revenues of the foreseen financial instrument dedicated to climate change shall include the amounts resulting from auctions relating to the European Emissions Trading Scheme (Art. 33-1);
c) The application of the principle of transparency shall follow the European recommendations on non-financial and climate reporting and the best international practices (Art. 34-(c));
d) Regarding financial system, the information on the relationship between investments and climate change must comply with the EU taxonomy on environmentally sustainable activities (Art. 35-6; and Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088);
e) “The central, regional and local administrations must, preferably, finance projects, contract services or concession public services, exclusively or partially, that comply with the principles of the taxonomy on environmentally sustainable activities of the European Union” (Art. 36-4);
f) It is required that by 2030 all State public assets satisfy the principles of the European taxonomy and that the State ensures the divestment of holdings in companies or businesses that do not comply with the principles of the European taxonomy (Art. 36-1).
c) An Act in dialogue with international Law
The legal commitments to European Union on climate issues is also a commitment to international law, regarding the international competences of European Union. The European obligations of the Portuguese State on climate issues goes in parallel with the international ones. The climate framework states, for example, that:
a) The Portuguese State must honour the commitments regarding international climate cooperation, at a European and international level (Art. 63-1 and 15; and, for instance, Art. 2 of the United Nations Framework Convention on Climate Change, of 1992 [https://unfccc.int/process-and-meetings/the-convention/what-is-the-united-nations-framework-convention-on-climate-change] and The Sendai Framework for Disaster Risk Reduction 2015-2030, of 2015 [https://www.undrr.org/publication/sendai-framework-disaster-risk-reduction-2015-2030]).
b) “Within the scope of international scientific cooperation, namely as a member of the European Union and the Atlantic axis”, Portugal must ensure “the existence of a research centre, based in Portugal, which promotes scientific research and technological development on climate change” (Art. 64-2).
c) The Portuguese State “participates in research and development actions at a European and international level” regarding cooperation projects in the field of climate change (Art. 66).
According to the framework climate Act, the Government must adopt “a global and integrated vision of climate objectives, complying with the limits of sustainable use of the planet’s natural resources and the development paths of each country, actively defending, in foreign policy and in climate diplomacy”, namely, the recognition by the United Nations of the principle of a stable climate as a Common Heritage of Humanity (article 15-1 (f)) – which has been specifically discussed and praised in the legislative process (“Portuguese Climate Law includes the status of Climate as a Common Heritage of Humanity”, 2021 - https://cije.up.pt/en/news/portuguese-climate-law-includes-the-status-of-climate-as-a-common-heritage-of-humanity/) -, the development of environmental international criminal protection, and the definition of the concept of climate refugee, its status and its recognition by the Portuguese State article 15-1 (c) and (d)).
d) The valuing of scientific knowledge
The last aspect that stands out is the fact that the framework climate law points out scientific knowledge as a premise to make better decisions. It states that public climate policies are subordinated to the principle of “valuing knowledge and science, on which decision-making is based” (Art. 4-(f)), and to precautionary approach in the case of scientific uncertainty (Art. 4-(j)). Regarding national mitigation targets, it is provided that they shall be revised taking into account new scientific and technological knowledge (Art. 19-5). It is also foreseen the creation of a scientific research centre to promote scientific research and technological development on climate change (Art. 66-2).
The link between scientific knowledge and political-normative decisions is noteworthy as it can be understood as a materialization of “the right to enjoy the benefits of scientific progress and its applications” (art. 15-1(b)) of the International Covenant on Economic, Social and Cultural Rights, 1966 - https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx).
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Secondary sources/ doctrinal works (if any)
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Anabela Carva et al., “Climate change research and policy in Portugal”, WIREs Climate Changes, 2014, Vol. 5, Issue 2, pp. 199-217. doi: 10.1002/wcc.258.
Manuel Gouveia Pereira, “The Environment and Climate Change Law Review: Portugal”, in The Environment and Climate Change Law Review, Edition 6, Editors Theodore Garrett Coington & Burling, 02 February 2022 (https://thelawreviews.co.uk/title/the-environment-and-climate-change-law-review/portugal).
Tiago de Melo Cartaxo, “Lei de bases do clima: a portuguese legal response to the biggest global challenge of our time”, Diritti Comparati, comparare i diritti fondamentali in Europa, posted on Marzo 10, 2022 (https://www.diritticomparati.it/lei-de-bases-do-clima-a-portuguese-legal-response-to-the-biggest-global-challenge-of-our-time/).
Commission recommendations for Portugal’s Cap strategic plan Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Recommendations to the Member States as regards their strategic plan for the Common Agricultural Policy, SWD(2020) 398 final, 18.12.2020 (https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52020SC0398&rid=2).
Documents related to legislative procedure - https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=44220.
Portuguese constitution: https://dre.pt/dre/geral/en/relevant-legislation/part-i.
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*Act citation /year and number
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Law 98/2021, of December 31.
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Enacted by
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Parliament (Assembleia da República)
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Official link to the text of the act
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https://dre.pt/dre/detalhe/lei/98-2021-176907481
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AUTHOR (name and surname)
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Ana Neves
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COUNTRY
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Portugal
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YEAR
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2021
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Name of the act/s*
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Regulates the housing framework Law regarding the guarantee of alternative housing, the pre-emption rights and the supervision of housing conditions
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Subject area
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Housing law and urban planning law
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Brief description of the contents of the act
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The act in reference regulates the housing framework law (Act 83/2019, of September 3) in some of its major aspects. In general terms, it establishes the obligations of public entities regarding the guarantee of a housing alternative (in order to implement the right to housing). The main provisions are the following:
i) It introduces a legal definition of "effective housing deprivation situation" (Article 3);
ii) It establishes an “objective duty” for public entities to provide the necessary support to households in a situation of effective housing need, specifying the competent entities and the terms under which they should intervene, both in a situation of a permanent effective housing deprivation and of an emergency and temporary one (Article 4);
iii) Within the scope of the procedure for classifying a property for housing purposes as vacant, when it is located in an area of urban pressure (a densely populated area where there is significant difficulty in accessing housing), the municipalities have to present a proposal for leasing the property to its owner, for further subletting. If the proposal is accepted the classification procedure ends (Article 5 (1)-(5));
iv) In cases where a property is classified as vacant and whenever the level of conservation established in an inspection so indicates, the municipality can order to the owner the execution of the necessary works to correct bad safety or salubrious conditions, as well as habitability conditions, under the terms of the legal scheme of urbanization and building [Decree-law 555/99, 16 December - https://dre.pt/dre/detalhe/decreto-lei/555-1999-655682] (Article 5 (6));
v) Without prejudice to the pre-emption rights granted to tenants in the case of rented properties, the State, the Autonomous Regions of Açores and Madeira, and the municipalities have pre-emption rights in the sale of residential properties in urban pressure zones or in territories of the National Housing Program (that must assess quantitative and qualitative housing needs, as well as provide information on the housing market, including any shortcomings or dysfunctions) - Articles 6 and 7);
vi) The duties of the Institute of Housing and Urban Rehabilitation, I.P., as a supervisor of housing lease are reinforced (Article 8);
vii) This public body can request to the municipalities to assess the leased and sub-leased houses conditions; and the latter should report on the measures taken to the resolution of problems detected in them (Article 9);
viii) The real estate companies must include in the advertising of the houses for lease some mandatory elements (so that people can know the habitability conditions of the house); administrative fines for non- -compliance are laid down (Article 10).
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Comment
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1. Legal background and related acts
The right to housing is enshrined in the 1976 Portuguese democratic Constitution (Article 65). In 2019, more than 40 years after, it was enacted the first housing framework law, approved by Law no. 83/2019 of September 3. Reaffirming the constitutional right to decent and affordable housing for all, it charges the state as the primary responsible for the realisation of this right. It also stresses the responsibilities of municipalities with regard to housing, that must assess the local housing needs and participate more actively in the housing and land-use policies.
The housing framework law has imposed the enactment of further legislation. The act under comment regulates some of the major provisions of this housing framework law. As above-mentioned, in sum, it states the obligations of public entities regarding the guarantee of a housing alternatives and the terms under which they have the right of preference in the alienation of housing properties, as well as their powers to supervise the conditions of habitability within the scope of housing leases. Two relevant acts were enacted before, in 2020, to develop other provisions of the housing framework law: the Decree-law 81/2020 of October 2, that regulates the carrying out of the inventory of the State's real estate assets with housing suitability and creates a State property exchange for housing, within the scope of the Economic and Social Stabilisation Programme; and the Decree-law 82/2020 of October 2an, that adapts the instruments created under the New Generation of Housing Policies (Resolution of the Council of Ministers no. 50- -A/2018, which approves the strategic direction, objectives and action instruments for a New Generation of Housing Policies; and “New generation of housing policies in Portugal”, 2017 - https://www.interregeurope.eu/finerpol/news/news-article/2122/new-generation-of-housing-policies-in-portugal/) and the Organic Law of the Institute for Urban Housing and Rehabilitation, I.P., to the basic law on housing and to the measures foreseen for housing in the Economic and Social Stabilisation Programme.
2. The main objectives and challenges
As the Institute of Housing and Urban Rehabilitation, I.P., has highlighted in the National Housing Strategy, Challenes and Changes, 2015, “[t]he housing sector in Portugal presents a paradoxical situation. On the one hand the high number of empty homes, on the other the difficulties experienced by families in finding housing that is adequate to their means and needs” (p. 3).
In 2017, the United Nations Special Rapporteur on adequate housing elaborated a Report about Portugal, after a fact-finding visit to Portugal from 5 to 13 December 2016 (General Assembly, A/HRC/34/51/Add2). Among other recommendations, it was recommended the adopting of a “national housing framework law formulated in consultation with all stakeholders and based on international human rights principles” (n.º 86.a); and it was highlighted the need for “better coordination between levels of government, including adequate flow of resources” and that the “central, municipal and autonomous regional governments should develop a common vision for cities in Portugal with a view to ensuring they are places of inclusion rather than predominantly for the affluent or tourists, and to ensure the effective implementation of the rights to adequate housing and to non-discrimination for long-term residents as a priority” (n.º 87).
The main objectives of the act under comment are in line with those recommendations. Namely, on the one hand, it articulates different public entities to pro-actively help solving the situations of people in real housing shortage. There is a deepening in decentralization of power and of the multilevel relationship in public action on housing, which have been recognised as important issues for its effectiveness and way to integrate the fragmented and disjointed nature of legal and policy instruments. On the other hand, the new act prescribes certain actions to be taken by public entities to increase the number of available dwellings in order to combat housing shortages.
On the 1st of October, the United Nations Special Rapporteur on adequate housing commented on the housing framework Law. It remarked that “Portugal's new housing law emphasises that the State has to guarantee housing as a human right and that public housing policies must follow the principles of universality and citizen participation”. But it also argued that it will be important that new “provisions are interpreted and applied in a manner that is consistent with international human rights standards in the area of forced evictions”. And she added: "Though these measures may not be broad enough to ensure Portugal's housing remains affordable to those in need, this is a step in the right direction.” (Portugal: UN expert welcomes new law protecting the right to housing - https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=25083&LangID=E).
Overall, there seems to be too much normative dispersion and institutional complexity to expect a real progress in the state of realisation of the right to housing in Portugal.
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Secondary sources/ doctrinal works (if any)
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Afonso, Ana (2017). A Proteção do Direito à Habitação na Carta Social Europeia e no Direito Português. In Conferência Internacional “A Crise e o Impacto dos Instrumentos Europeus de Proteção dos Direitos Sociais nas Ordens Jurídicas Internas”, Porto, Portugal, 15-16 abril, 2017, in Lex Social: Revista de Derechos Sociales. ISSN 2174-6419. Vol. 7 (2017), p. 323-344.
Fahra, Leilani (2017). Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context Mission to Portugal, 2017 (available at: https://www.housingrightswatch.org/news/report-special-rapporteur-adequate-housing-mission-portugal).
Morais, Luís, Silva, Rita, Mendes, Luís (2018). “Direito à habitação em Portugal: comentário crítico ao relatório apresentado às Nações Unidas 2017”, Revista Movimentos Sociais e Dinâmicas Espaciais, v. 7, n.º 1, p. 229-243. ISSN: 2238-8052.
Mendes, Luís (2020). Nova geração de políticas de habitação em Portugal. Finisterra, 55 (114), 77-104. https://doi.org/10.18055/Finis19635.
Teles, Filipe, Romeiro, Patrícia, Pires, Sara Moreno (2021). “Thirty years of urban policy in Portugal: challenges and multilevel governance”, in A Modern Guide to National Urban Policies in Europe: A Modern Guide to National Urban Policies in Europe, ISBN: 978 1 83910 904, Elgar Publishing, 1 pp. 176-194.
Housing Europa, The State of Housing in Europe, 2021, https://getwarmhomes.org/the-state-of-housing-in-europe-2021-housing-europes-flagship-publication/.
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*Act citation /year and number
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Decree-Law 89/2021, of November 3.
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Enacted by
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Government
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Official link to the text of the act
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https://dre.pt/dre/detalhe/decreto-lei/89-2021-173732851
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Osservatorio sulle fonti / Observatory on Sources of Law
Section: Sources of Law in the EU member States
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AUTHOR (name and surname)
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Ana Neves
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COUNTRY
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Portugal
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YEAR
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2021
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Name of the act/s*
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Exceptional scheme of budget execution and procedural simplification for projects approved under the Recovery and Resilience Plan
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Subject area
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Administrative law and Budgetary law
Leggi tutto...
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Name of the act/s*
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Rules of Procedure of the Portuguese Parliament
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Subject area
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Constitutional Law. Parliament Law.
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Brief description of the contents of the act
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The process that resulted in the adoption of the new Rules of Procedure of the Portuguese Parliament began with the presentation, on 29th October 2019, of a draft amendment to the Rules of Procedure of the Portuguese Parliament No. 1/2007 of August 20, “in order to ensure the fair and proportional representation of all political parties”. It was presented by the Liberal Party, which for the first time obtained parliamentary representation, with the election of a single deputy. It argued the need to be reflected in the functioning of Parliament the fact that, from 2015 to 2019, the number of parties represented by a single deputy tripled (https://www.pordata.pt/Portugal/Mandatos+nas+elei%c3-%a7%c3%b5es+para+a+Assembleia+da+Rep%c3%bablica+total+e+por+partido+pol%c3%adtico-2257). Other projects followed, the last one on 30 June 2020 (Draft Rules of Procedure Nos. 1 to 8/XIV/1).
The new Rules of Procedure (No. 1/2020, of 31 August) on the one hand, does not constitute a major reform of parliamentary rules compared to what is considered the substantive reform in the Portuguese Parliament, the 2007 Reform. On the other hand, they do not reflect the aim to adapt the functioning of the Parliament to the COVID-19 pandemic.
The main amendments are as follows:
i) The fortnightly debates with the Prime Minister were replaced by monthly debates. The debates to monitor Government activity has an alternate format: one month with the head of Government on general policy; and the next on sectoral policy with a sectorial minister (Article 224);
ii) An urgent debate may be held every fortnight at the request of a parliamentary group (Article 72(1));
iii) Parliamentary committees can now function with one-fifth of the number of sitting deputies, with the rule that decisions are taken in the presence of more than half of their sitting members, provided that at least three deputies from three parliamentary groups are present, one of whom from a party in the Government and one from an opposition party (Article 58(5));
iv) The deputy who is the sole representative of a party is granted the effective right to participate in the Parliament actvities (for instance, the right to be heard when the agenda is set and to lodge an appeal to the Plenary of the agenda set) - Article 10;
v) In setting the agenda, the President of the Parliament shall respect, as a rule, the representativeness of the political forces (Article 60(1));
vi) A debate is provided on the progress of the regulation of laws, on the sequence given to policy recommendations, and on the lack of response to questions and requirements (Article 225a);
vii) The holding of ceremonial sessions is regulated, in particular the annual celebration of 25 April, that mark the Carnation Revolution of 1974 (Article 76) (due to pandemic, this year, the ceremonies were controversial - https://www.eurotopics.net/en/239412/portugal-national-celebration-without-citizens);
viii) The authorization of the state of siege or emergency now takes the form of resolution, as well as its confirmation or refusal (instead of the form of law in case of confirmation and resolution in case of refusal) - Articles 177 and 181;
ix) Plenary and parliamentary committee meetings are public and, as a rule (as it was already in practice), transmitted by the Parliament Channel, as well as made available on the Parliament portal on the Internet (Article 110).
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Comment
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1. The Portuguese Parliament (Assembleia da República).
The Portuguese Parliament is a unicameral parliament with two hundred and thirty Members, directly elected for a period of four years (Articles 147, 148, 113(1), and 114(1) of the Constitution). It has legislative pre-eminence (Articles 161 (c)-(e), 164 and 165 of the Constitution - https://dre.pt/part-iii), notwithstanding the Government's broad legislative competence. Regarding the government parliamentary oversight, the Parliament has, namely, the competence to scrutinise Government compliance with the Constitution and the laws and to assess the acts of the Government and of the Public Administration; to consider the manner in which a declaration of a state of siege or a state of emergency is implemented; and to draw up a motion to consider an executive law (save for those made by exercise of the Government's exclusive legislative competence) - Articles 162 (a)-(c) and 169 of the Constitution.
As internal competences, the Parliament has the competence to draw up and pass its Rules of Procedure and to form the Standing Committee and the remaining committees (Article 175 of the Constitution).
The Parliament’s plenary sessions meet with the quorum of one fifth of the total number of its members (Article 58(1)). Plenary deliberations are taken in the presence of more than half of the Members, so that at least 116 Members must be present to vote (Article 58(2) of Rules of Procedure and Articles 148 and 116(2) of the Constitution).
Legislative sessions last for one year and the normal parliamentary term is from 15 September to 15 June, without prejudice to suspensions decided by a two-thirds majority of its Members who are present (Article 174(1)-(2) of the Constitution).
2. Parliament's Rules of Procedure 2020 versus Parliament's Rules of Procedure 2007.
The Rules of Procedure no. 1/2007, of 20 August, is considered the real reform of Parliament, a “revolution in the workings of parliament” (A. Filipe, 2009). It increased the opposition rights granted to the Parliament Groups; stated that the Prime Minister shall attend the Plenary for a session of questions from Members of the Parliament once a fortnight; and stated that Ministers must be heard at hearings of the Parliament committees at least four times in each legislative session, in accordance with a schedule set at a Conference of Leaders by the first week of each the legislative session.
The Rules of Procedure of 2007 is deemed to have contributed to the gaining of centrality of the Parliament in the political system regarding its political control role, control which continued to be exercised during the Portuguese bailout period (May 2011-May 2014; https://www.esm.europa.eu/assistance/portugal).
In 2020 Rules of Procedure, what was manly at stake were adjustments related to the need of represention of single-member parties. The reduction of the number of times Prime-Minister should attend Parliament session was a critical issue, with a wide discussion also in the media.
The process of enacting new Rules of Procedure began before the pandemic, continued and finished during this period. In spite of this, there was no adaptation of the parliamentary rules to the pandemic, with the exception of the quorum for the functioning of parliamentary committees.
3. The functioning of the Parliament during the pandemic.
Since the beginning of the pandemic Portugal experienced 4 periods of state of exception: three of them between 19th March 2020 at 0:00 AM to 2nd of May 2, 2020, at 11:59 p.m. (Decree of the President of the Republic No 14-A/2020 of 18 March 2020, that declares the state of emergency, on the basis of a situation of public disaster, renewed by the Decree no. 17-A/2020, of 2 April, and Decree no. 20-A/2020, of 17 April); and since the 9th of November of 2020, by the Decree of the President of the Republic n.º 51-U/2020, November 6, that declared the state of emergency, based on the verification of a public calamity situation. The state of emergency lasts 15 days, beginning at 00:00 on November 9, 2020 and ending at 23:59 on November 23, 2020, without prejudice to the possibility of renewals subject to the same limits.
The Portuguese Parliament has not suspended its activity since the beginning of the pandemic. Accordingly to Article 116(2) of the Constitution ‘[c]ollegial entities and organs shall take their decisions in the presence of a majority of the number of members they are prescribed to have by law’. The remote voting in plenary sessions is not foreseen and was not introduced in the reviewed Parliament’s Rules of Procedure. Nevertheless, Members of the Parliament representing Autonomous Regions of Azores and Madeira and those who represent emigrants took part via videoconference.
The following changes to the operation of the Parliament have been adopted, by Leaders Conference Meetings, to deal with the pandemic:
i) The number of Members of the Parliament present at the plenary sessions (fewer sessions than normal) was reduced to its quorum, of one-fifth of the number of Members of the Parliament in effective office (Article 58(1)); securing the proportion of the Parliamentary Groups (plus the single deputies and the non-attached deputies) and ensuring only to vote the presence of at least 116;
ii) Parliamentary Committees meetings became less frequent, functioned in a reduced model; and some meetings took place by videoconference.
The pandemic has impacted on the Portuguese Parliament’s functioning, but not in a significative way. It continued to debate, pass legislation and to scrutinise the Government. As part of its legislative activity, between March 18, 2020 until May 15, 2000 Parliament has passed 17 decrees (15 of which enacted in the form of law) and 3 resolutions, most of which contain measures in response to the crisis caused by the COVID-19 pandemic. During this period, 123 Member's bills, 14 government bills, 6 parliamentary reviews of executive laws and 136 draft of resolutions were considered. As part of its scrutiny activity, the Reports on the implementation of the 1st and 2nd Declarations of the State of Emergency were appreciated; the 3rd Declaration was appreciated on 21 of May. During the above mentioned period, 12 Plenary Meetings were held (one of which was the Solemn Commemorative Session of the 46th Anniversary of the 25th of April 1974), 8 meetings of the Leaders' Conference and 82 meetings of the Parliamentary Committees (which carried out more than 60 hearings, 31 of which of Government Members) - https://www.parlamento.pt/Paginas/2020/maio/Atividade-parlamentar-em-tempo-de-pandemia.aspx.
Nevertheless, the question of the violation of Parliament's exclusive or partially exclusive legislative competence in the context of pandemic arose, although outside the specific emergency periods. In the Judgment 424/2020, the Constitutional Court found to be unconstitutional the rules contained in paragraphs 1 to 4 and 7 of Azores Government Council Resolution 77/2020 and in paragraphs 3(e) and 11 of Azores Government Council Resolution 123/2020, under which passengers landing in the Autonomous Region of the Azores must be compulsorily confined for 14 days, which only could be decided in the national Parliament. Differently, the Administrative Supreme Court, regarding the fundamental right to move and reside freely within the national territory, rejected an injunction grounded on the violation of the legislative competence of Parliament by the Council of Ministers Resolution No 89-A/2020 of 26 October (Judgment of Administrative Supreme Court of 31 of October 2020, case n.º 0122/20.1BALSB). Two of the three Judges found that there was not an intolerable restriction on that right. A judge expressed a dissenting opinion, according to which the Government infringed the parliament's legislative competence (Article 165(1)-b) of the Constitution).
With regard to the Legislative Assembly of Azores, it postponed a plenary session in March and held two plenary sessions in May by video-conference, and returned to face-to-face activity in June. The Legislative Assembly of the Autonomous Region of Madeira amended its Rules of Procedure (Resolution 16-A/2020/M, April 30): the quorum needed to run the Plenary meetings is, at least, 1/3 of the deputies in full exercise of their office (Article 63(1)), as a rule, the votes expressed by the Members present are counted as representing the universe of their parliamentary group (Article 104 (2)-(3)); the sittings of the Commissions can be held electronically, using the adequate technological means (Article 119 (3)).
4. New changes in the way the Parliament operates, based on the pandemic.
On 10th November 2020, it was decided by the Leaders' Conference:
i) That besides the quorum, the other Members shall participate in the plenary sessions by videoconference from their respective offices and may speak, subject to prior registration, addressed to the secretaries of the Bureau.
ii) These Members may also vote, whenever their vote is different from that of their benches, making the declaration of their vote in a viva voce.
iii) The same rules may apply to Members of Autonomous Regions of Azores and Madeira and of the emigration constituencies in the event of being unable to travel due to the absence of flights, as well as to members who have been determined, by health authority, to be prophylactically isolated.
This contrast to the previous understanding and practice, accordingly to which all the Plenary sessions of the Parliament were face-to-face meetings.
On 10th November, it was also decided to suspend the constitutional revision process that had been opened on October 9, because the Constitution does not allow it to take place during the state of emergency.
On the same day, a working group was created to discuss the model of functioning of the Parliament during the pandemic situation and to propose the measures to be adopted in the coming months.
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Secondary sources/ doctrinal works (if any)
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- Jančić, Davor, "The Portuguese Parliament and EU Affairs: From Inert to Agile Democratic Control", in Hefftler C., Neuhold C., Rozenberg O., Smith J. (eds) The Palgrave Handbook of National Parliaments and the European Union. Palgrave Macmillan, London, 2015, pp. 366-386. https://doi.org/10.1007/978-1-137-28913-1_18.
- Loureiro, João Carlos, During the Covid-19 pandemic the Portuguese Parliament did not 'revolutionize' its functioning”, The Parliament in the time of coronavirus, Portugal, Fondation Robert Schuman, 2020.
- Murphy, Jonathan, “Parliaments and Crisis: Challenges and Innovations”, Parliamentary Primer No. 1, 2020 International Institute for Democracy and Electoral Assistance (https://www.idea.int/publications/catalogue/parliaments-and-crisis-challenges-and-innovations).
- Seguro, A. José, "The Centrality of the Portuguese Parliament: Reform, Troika and ‘Contraption’”, in Costa Pinto A., Pequito Teixeira C. (eds.) Political Institutions and Democracy in Portugal. Palgrave Macmillan, 2019, pp. 101-119 (https://doi.org/10.1007/978-3-319-98152-9_6.).
- Judgment of Administrative Supreme Court of 31 of October 2020, case n.º 0122/20.1BALSB (http://www.dgsi.pt/jsta.nsf/Por+Ano?OpenView).
- Judgment of Constitutional Court n.º 424/2020, of 31 July 2020, case 403/2020 (https://www.tribunalconstitucional.pt/tc/acordaos/20200424.html).
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*Act citation /year and number
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2020/1
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Enacted by
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Parliament
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Official link to the text of the act
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Link to the Rules of Procedure 1/2020 - https://dre.pt/home/-/dre/141382322/details/maximized.
Link to the other acts mentioned: https://www.safecommunitiesportugal.com/emergency-legislation/;
https://www.acm.gov.pt/-/covid-19-medidas-orientacoes-e-recomendacoes.
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Osservatorio sulle fonti
Rivista telematica registrata presso il Tribunale di Firenze (decreto n. 5626 del 24 dicembre 2007). ISSN 2038-5633.
L’Osservatorio sulle fonti è stato riconosciuto dall’ANVUR come rivista scientifica e collocato in Classe A.
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