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Authorizes The Government To Adapt The General Scheme Of The Contraventions Under The Corporate Process Of The Legal System Of The Carriage Of Goods By Road

Original Language Title: Autoriza o Governo a adaptar o regime geral das contra-ordenações no âmbito do processo contraordenacional do regime jurídico do transporte rodoviário de mercadorias

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PROPOSED LAW NO. 89 /X

Exhibition of Motives

The road transport of goods on its own, as defined in the paragraph

b) of Article 2 of the Decree-Law No. 38/99 of February 6, contrary to what it would be

predictable, still fulfills a significant share of the universe of road transport

of goods held on national territory.

This situation advises that the sanctionatory procedures for infringement of the rules

applicable to the sector, be as much as possible equated, whether it is a

public transport, whether it is private transport.

Ongoing review of the legal regime of the road transport of goods,

regulated by the Decree-Law No. 38/99 of February 6, it is timely to proceed

adjustments that guarantee safety conditions in the realization of transport,

regardless of the public or particular nature and avoid the imbalance of the

conditions of competition.

It is thus shown to be indispensable to include in the sanctionatory regime punitive mechanisms

and deterrents of the practice of serious offences, specifically with regard to the

excess load, checked frequently on transport on its own, once

that the regime in force already provides for the application of ancillary sanction for transportation

public or on account of outrain.

Considering the legal good that is meant to acautelate by sanctioning the excess of cargo,

this is not safeguarded with the application of ancillary sanctions exclusively to

public transporters. Adding that one same unlawful conduct should not be treated

by law in a different way, depending on the status of the offender.

However, the transport of goods on its own is not subject to any

sectoral licence, so it is not possible to determine the application of one of the sanctions

Elencadas in Article 21 of the General Regime of the Counterings-Ordinances, approved by the

Decree-Law No. 433/82 of October 27, amended by the Decrees-Leis n. the

356/89, of

October 17, 244/95, of September 14, and 323/2001, of December 17, and by the Law

n. 109/2001, of December 24.

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It becomes, thus, necessary to go beyond that cast and create an ancillary sanction that

temporarily inhibits the particular transporter, if it practices repeated offences by

excess load, to carry out transport, as it succees for transporters

professionals.

To achieve the equiparation of the ancillary sanction for the same illicit, without

discrimination of the regime in which the transport is carried out, the seizure of the certificate of

vehicle registration appears to constitute the appropriate route by producing the same effects

that the suspension of the license of the public transport vehicle.

Whereas the ancillary sanction of seizure of documents is not foreseen in the

General Conditions of Counterings-Ordinations, given the provisions of the d) of the Article 1 (1)

165. of the Constitution, its creation lacks the law of the Assembly of the Republic, or its

authorization to the Government to legislate in this matter.

Thus:

Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the

Assembly of the Republic the following proposal for a law:

Article 1.

Subject

The Government is granted permission to establish, in the context of the procedure

counter-ordinance of the legal regime of the road transport of goods, the

sanction accessory of seizure of vehicle documents, not typified in the Regime

General of the Counter-Ordinations, approved by the Decree-Law No. 433/82 of October 27,

changed by the Decrees-Leis n. the

356/89, of October 17, 244/95, of September 14,

and 323/2001, of December 17, and by Law No. 109/2001 of December 24.

Article 2.

Sense

The present legislative authorization is granted to allow the application of sanction

accessory, in case of more than two convictions, in counterordinance processes by

excess load practiced by natural or legal persons carrying out

road transport of goods on their own.

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Article 3.

Extension

In the development of this Authorization Act, may the Government:

a) Provide for the possibility of the administrative entity, competent for the application of

fines under the framework of the counter-ordinational scheme of road transport of

goods, seize the documents relating to the vehicle-certified

matriculation-in case of application of fine, by excess load;

b) Condition the application of the accessory punishment of seizure of documents from the

vehicle, to cases in which the offender has been subject to three convictions

definitive, by three offences of the same nature, and these have occurred in the

course of the two years prior to the date of the practice of the offence being

decided;

c) Determine that:

(i) The ancillary sanction will have the maximum duration of two years, counted from the

definitive condemnatory decision;

(ii) The apprehended documents will be deposited with the order of the entity

competent for the sentencing decision.

Article 4.

Deadline

The legislative authorization granted by this Law shall be for the duration of 120 days.

Seen and approved in Council of Ministers of July 27, 2006.

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs

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The legal regime of the road transport activity of goods, adopted in the

internal law in line with Council Directive No 96 /26/CE of 29 of

April 1996, and with Council Directive No 98 /76/CE of October 1, 1998,

in force since 1999, came to demonstrate, by the experience gained from its application,

the need to make some adjustments.

It was noted that it was advisable to make changes to the access regime to the activity,

as well as the system of organization of the market for road transport of

goods, which promote the improvement of the conditions of service provision and

improve the competitive ability of companies operating in that market.

Considering that there has been a trend of growth of companies that,

with exclusive recourse to light goods vehicles, carry out transport

public or on account of outrain, without having to subject yourself to any conditions

of access to business or market, which subverts the conditions of competition,

it is shown to be advisable that these transports be subjected to identical rules to the

applicable to the remaining transports already subjected to licensing. They stay, however,

excluded from this scheme transport carried out in vehicles of weight goods

gross less than 2,500 kg, by the irrelevance of its load capacity.

As far as access to business was concerned, the rules regarding the

professional capacity requirement, in such a way as to ensure that each company is

effectively managed by the holder of the certificate of professional capacity and, at the same

time, foster the achievement or consolidation of better and more up-to-date

technical skills. In this sense, the validity of the certificate of

professional capacity of the company's responsible officer, an evaluation of its management with

good practice, which will take into account the number of offences to the relevant regulations

for the sector, including matters related to the activity of the transport itself

road to goods, road safety, or protection of the environment.

By seeking to contribute in a more active way to environmental protection, they are

established rules conditioner the licensing of vehicles that will tend to

promote the renewal of the automotive fleets and, consequently, the abatement of the

older vehicles, that is, the most polluting.

A more adjusted and deterrent sanctionatory regime has been formulated, specifically in the

respect to the application of ancillary sanction by excess load, which passes on to be

applied either to carriers on account of others, or on their own. It Was

also introduced the punishment, until here non-existent, by the lack of certificate of

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driver, required of the national drivers of third countries by the Regulation (EC)

n 484/2002 of the European Parliament and of the Council, which amended the Regulation (EEC)

n 881/92, also of the European Parliament and of the Council.

Thus:

In the use of the legislative authorization granted by the Law n. de ...., and in the terms of the

points a) and b) of Article 198 (1) of the Constitution, the Government decrees the following:

CHAPTER I

GENERAL PROVISIONS

Article 1.

Scope

1. The present decree-law applies to the road transport of goods carried out

by means of motor vehicles or sets of goods vehicles, with weight

gross equal to or greater than 2,500 kg.

2. Are not covered by the licensing regime in the activity referred to in the

present decree-law:

a) The transport of products or goods directly connected to agricultural management

or from it, carried out by means of trailers pegged to the respective

agricultural tractors;

b) The transport of postal items carried out in the context of the activity of a provider

of postal services;

c) The movement of vehicles to which they are connected, on a permanent basis and

exclusive, equipment or machines.

Article 2.

Definitions

For the purposes of the provisions of this decree-law and supplementary legislation, considers-

if:

a) "Road transport of goods", the activity of a logistic nature and

operational which involves the physical displacement of goods in motor vehicles

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or sets of vehicles, and may involve still handling operations

of these goods, specifically grupping, sorting, receiving, storing and

distribution;

b) "Transport on account of outrain or public", the transport of goods

carried out upon contract, which does not fall under the conditions set out in the paragraph

next;

c) "Transport on its own or particular account", the transport carried out by people

singular or legal in which the following cumulatively occur

conditions:

i) the goods transported are from your property, or have been

sold, purchased, given or taken from rental, produced, extracted,

transformed or repaired by the entity that carries out the transport and that this

constitutes an ancillary activity in the whole of its activities;

ii) The vehicles used are of their property, the subject of contract of

financial leasing or leased in a driverless rental scheme;

iii) Vehicles are, in any case, conducted by the owner or

tenant or by staff at your service.

d) "Goods", all kind of products or objects, with or without value

commercial, which can be transported in motor vehicles or sets of

vehicles;

e) "National transport" means the transport which takes place fully in territory

national;

f) "International transport", the transport that implies the crossing of

borders and develops partially on national territory;

g) "combined transport" means the transport of goods in which, in the initial part or

end of the path uses the road mode and, in the other part, the railway mode, the

air mode, the waterway or the sea route;

h) 'Resident carrier' means any company established on national territory

enabled to exercise the carrier activity;

i) "Non-resident conveyor", any company established in a country

foreign empowered to engage in the activity pursuant to the regulation of that

country;

j) "Cabotage", the realization of national transport by carriers not

residents;

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l) "Special transport", transport which, in particular by nature or

size of the goods transported, must comply with technical conditions or the

special security measures;

m) "Transport equated to transport on their own", those which integrate a

combined transport and develop in the initial road pathways or

terminals, provided that it is fulfilled the condition provided for in point (i) of point (i) c) and the

tractor vehicle is the property of the forwarding company, the subject of contract of

financial leasing or rental without a driver, and is conducted by the owner,

tenant or staff at your service, even if the trailer is enrolled or

has been leased by the recipient company, or vice versa, in the case of the pathways

terminal road;

n) "Transport in full load regime", transport on account of outrain

where the vehicle is used in the pool of its load capacity by a single

dispatcher;

o) "Transport in fractionated load regime", transport on account of outrain

where the vehicle is used by fraction of its load capacity by several

forwarders;

p) "Guide to transport", the descriptive document of the essential elements of the

transport operation and which sets out the conditions for the realization of the contract between

the carrier and the shipper;

q) "Freight Forwarder" means the person who contracts with the transporter the displacement of the

goods.

CHAPTER II

ACCESS TO ACTIVITY

Article 3.

Licensing of activity

1. Road transport activity of goods by outrain, national

or international, by means of vehicles of gross weight equal to or greater than 2,500 kg, only

may be exercised by commercial companies or cooperatives, licensed by the

Directorate-General for Terrestrial and Fluvial Transport (DGTFF).

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2. The licence referred to in the preceding paragraph conforms to an alvshall or licence

community, to which it is incommunicable, being issued for a period of not more than five

years, renewable for equal period, upon proof that they hold the

access and exercise requirements of activity.

3. DGTTF proceeds to the register, pursuant to the law in force, of all the companies that

carry out transports of goods on account of an outrain.

Article 4.

Requirements for access and exercise of activity

1. Are requirements for access and exercise of the activity to idoneity, the technical capacity

and professional and the financial capacity.

2. It is still requirement for exercise of the activity that the company has its situation

regularized contributory to the tax administration and social security.

Article 5.

Idoneity

1. The idoneity is affixed by the non-existence of legal impediments, namely the

conviction for certain unlawful practitioners practiced by the administrators, directors or

managers.

2. Are deemed to be elderly persons for whom no one occurs

of the following impediments:

a) Legal prohibition for the exercise of trade;

b) Conviction with an actual prison sentence equal to or more than two years, carried on

on trial, for crime against heritage, for trafficking in narcotic drugs, by

money laundering, by tax or customs fraud;

c) Conviction, with transit on trial, in the safety of interdiction of the

exercise of the profession of conveyor, regardless of the nature of the crime;

d) Sentencing with traffic on trial, for serious infringements of regulation

on driving and rest times or regulation on safety

road, in cases where the interdiction of the financial year has been enacted

profession of conveyor;

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e) Conviction, with transit on trial, for offences committed to the standards

relating to the scheme of benefits of a nature of a consideration or the conditions of hygiene

and safety at work, the protection of the environment and professional responsibility,

where the interdiction of the profession of the profession has been enacted.

transporter.

3. For the purposes of this decree-law, when the ancillary sanction of

interdiction of the exercise of the activity, the directors, directors or managers in

functions at the date of the offence which originated the ancillary sanction cease to fill the

idoneity requirement during the interdiction period fixed in the sentencing decision.

Article 6.

Professional capacity

1. The professional capacity shall be fulfilled by person who, being the holder of the

certificate of professional capacity referred to in Article 7, detains powers to

obligate the company, either isolated or jointly and to drive in permanence and actuality.

2. For the purpose of fulfilling the requirement of professional capacity, the person who

ensures this requirement must make proof of your enrolment in social security, in the

quality of steering frame of the company.

3. The same person cannot assure the requirement of professional ability to more

than a company, save if at least 50% of the social capital of each of the

companies by it directed to belong to the same partner, natural or legal person.

Article 7.

Certificate of professional capacity

1. The certificate of professional capacity for road transport of

goods, national or international, as the case may be, is issued by DGTTF to

people who:

a) Have frequented training action on the subjects referred to in the list

constant of Annex I to the present decree-law and that of it is an integral part, and

obtain approval in examination, carried out in accordance with the constant rules of the

Annex II to this decree-law and that it is an integral part thereof, or

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b) Proving curricularly to have at least five years of practical experience

at the direction level in a licensed company for road transport of

goods, national or international and obtain approval in examination

specific control.

2. The graduating persons with a course of higher education or with recognised course

officially, which implies good knowledge of some or some subjects referred to

in the list of Annex I, they may be exempted from training and examination in respect of

that or that of these subjects.

3. The certificate holders of professional capacity, referred to in Article 6 of the

Decree-Law No. 3/2001 of January 10, they fall under the dispensation to which if

refers to the previous number, concerning the common assessment subjects.

4. DGTTF recognizes certificates of professional capacity for transport

road of goods, issued by the competent entities of other States

members of the European Union, pursuant to Council Directive No 96 /26/CE of 29

of April 1996, modified by Council Directive No 98 /76/CE of 1 of

October 1998.

5. The validity of the professional certificate of the company's officer, by period

greater than five years, is dependent on the exercise of the profession with good practice,

having regard to the infringements of the standards relating to the carrier activity, to

social regulation of transport, road safety and environmental protection,

as well as vocational training.

6. The attestation of the frequency of the training and the conditions for conducting examinations,

the one referred to in the points a) and b) of paragraph 1, as well as the conditions of validity of the

certificate of professional capacity, for a period of more than five, are defined by

would pore from the member of the Government responsible for transport.

Article 8.

Technical capacity

The technical capacity consists in the existence of technical and human means, appropriate to the

size of carriers, in accordance with the criteria to be defined by

would pore.

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Article 9.

Financial capacity

1. Financial capacity consists in the possession of necessary financial resources for

guarantee the start of the business and the good management of the company.

2. For commencement of business start-up, companies must have a social capital

minimum of € 125,000 or € 50,000, in the case of exercise of the activity

exclusively by means of light vehicles.

3. During the exercise of the activity, the amount of capital and reserves may not be

less than € 9,000 by the first licensed automotive vehicle and € 5,000 or € 1,500 by

each additional car vehicle, depending on whether it is heavy or light vehicle.

4. The proving of the provisions in the preceding paragraphs is made by certificate of the record

commercial from which it consents the social capital and by duplicate or certified copy of the latter

balance sheet presented for the effects of People's Income Tax

Collective (IRC) or by bank guarantee.

Article 10.

Compliance with fiscal obligations

The substantiation of the company's contributory situation before the tax administration and the

social security is required at the time of the renewal of the alvará and in the licensing of

vehicles.

Article 11.

Duty of information

1. The requirements for access and exercise of the activity are permanent verification,

the companies should substantiate their compliance whenever they are asked.

2. Companies have a duty to communicate to DGTTF the changes to the social pact,

specifically modifications to the administration, direction or management, as well as

Headquarters changes, within 30 days of the date of its occurrence.

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Article 12.

Lack supervenient of requirements

1. The supervenient lack of any of the suitability requirements, capacity

professional and financial capacity must be met within one year of the

date of its occurrence.

2. For the purpose of supply of the financial capacity requirement of exercise of the

activity may be granted the additional term of one year, provided that the situation

economic of the company justifies and by the presentation of a financial plan.

Article 13.

Renovation and expiry of the alvshall or community licence

1. Applications for refurbishment of alvshall or of the Community licence shall be required

at DGTTF at the minimum 60 days ' notice regarding the term of the respective

term of validity.

2. The licence for the exercise of the activity, alvshall or community licence, shall lapse:

a) Decorates the deadlines referred to in the previous article without the lack being met;

b) If for one year, from the date of the issuance of the alvshall or community licence,

the company has not licensed any motor vehicle.

3. With the expiry of the licence for the exercise of the activity shall lapse all the

licences of motor vehicles or certified copies of the Community licence that

have been issued to the company.

CHAPTER III

ACCESS AND ORGANIZATION OF THE MARKET

Article 14.

Licensing of motor vehicles

1. Motor vehicles allocated to the road transport of goods on account of

outrain, are subject to license to be issued by DGTTF, whether owned by the

conveyor, the subject of a financial leasing contract, or contract for hire without

driver.

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2. Until the sum of the gross weights of the company's vehicles exceeds 40 tonnes, the

motor vehicles to be licensed after obtaining the alvshall or the Community licence, the

referred to in Article 3 (2), they must necessarily be new, considering

that meet this condition those vehicles that are no more than one year of manufacture,

counted from the date of first matriculation.

3. Are conditions of licence issuance that the average age of the car fleet of the

company does not exceed 10 years, being determined the age of each vehicle by the date of

first tuition.

4. Vehicles licences shall lapse in the case of transmission of the property or of the

possession of the vehicle and whenever the expiry of the alvshall or licence is to be established

community.

Article 15.

Identification of vehicles

The licensed motor vehicles for the road transport of goods by

account of outrain must bear identification badges.

Article 16.

Transport of exceptional character

They are subject to authorisation, to be issued by DGTTF, the transport of character

exceptional carried out by vehicles assigned to transport on their own, the weight of which

gross exceeds 2,500 kg, where, cumulatively:

a) The goods and the vehicles do not belong to the same owner;

b) The transport is carried out without profit by utility collectives

public or other philanthropic, sports or recreational assaults;

c) The goods carried are related to the purposes of the entities that

carry out the transport;

d) The vehicles used are the property of the entity that carries out the transport,

of some of their associates or ceded free of charge by other entities.

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Article 17.

International and cabotage transport

1. International transport and cabotage transport to be carried out by

non-resident carriers sedeed outside the territory of the European Union are

subject to authorisation to be issued by the DGTTF, to which it is conditioned by the principle of

reciprocity.

2. International transport to be carried out by resident carriers, between the

territory Portuguese and the territory of non-EU countries, with whom

the Portuguese State to be concluded a bilateral or multilateral agreement on transport

road, are subject to authorisation to be issued by DGTTF within the limits

quantitative resulting from these agreements or conventions.

3. They are not covered by the authorisation scheme provided for in this article Transport

that, by multilateral convention or by bilateral agreement, have been liberalized.

4. In the case of transport carried out by means of vehicle assemblies, the authorisation

is only required of the car vehicle.

Article 18.

Special transport

Special transport is the subject of specific regulation.

Article 19.

Transport guide

1. Road transport of goods by other outrain account is described in a

transport guide, which must accompany the goods transported.

2. The transport tab shall contain the elements that are to be defined by

dispatch of the Director-General of Terrestrial and Fluvial Transport.

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Article 20.

Documents that must be on board the vehicle

During the realization of the transport referred to in this decree-law, they shall be

on board the vehicle and be presented to the supervising entity whenever requested, the

certified copy of the Community licence, as well as the licences and authorizations provided for

in Articles 14, 16 and 17 and, in the case of international transport in which the vehicle is

conducted by a third country national driver, the respective certificate.

CHAPTER IV

SURVEILLANCE AND SANCTIONATORY REGIME

Article 21.

Surveillance

1. The surveillance of compliance with the provisions of this decree-law shall compete with

following entities:

a) Directorate General for Terrestrial and Fluvial Transport;

b) Republican National Guard;

c) Public Security Police.

2. The entities referred to in the preceding paragraph may proceed, together with the persons

natural or legal ones that carry out road transport of goods, to all

investigations and verifications necessary for the exercise of its competence

supervising.

3. The DGTTF officials with competence in the area of surveillance and exercise

of functions, provided that they duly accredited, have free access to the intended sites

to the exercise of business activity.

Article 22.

Counter-ordering

1. The offences of the provisions of this decree-law constitute counter-ordinations, in the

terms of the articles 23 to 34.

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2. The attempt and negligence are punishable by being the maximum and minimum limits of the

coima reduced to half.

Article 23.

Carrying out transport by unlicensed entity

1. The realization of road transport of goods by other means by taking care of

means of motor vehicles with gross weight equal to or greater than 2,500 kg, per entity

which is not a holder of the alvshall referred to in Article 3, is punishable with fine

1,250 a to € 3,740 or from 5,000 a to € 15,000, depending on whether it is a natural person or

collective.

2. Transport on account of international outrain and cabotage referred to in the

Regulation EEC Regulation No 881/92 of the European Parliament and of the Council of March 26,

and in Council Regulation (EEC) No 3118/93 of October 25, when

carried out without the certified copy of the Community licence, considered to be carried out by

unlicensed entity, the fines provided for in the preceding paragraph shall apply.

Article 24.

Lack of national driver's certificate of third parents

The realization of international transport to be covered in a Community licence, in

that the vehicle is driven by a national driver from a third country, without the

certificate required by Art. 3 of Regulation (EEC) No 881/92 of Parliament

European and of the Council of March 26, as amended by the

Regulation (EC) No 484/2002, of the European Parliament and of the Council, of 19 of

March, is punishable with fine of € 750 a € 2,250.

Article 25.

Transport carried out by amusing entity of the holder of the alvshall or the licence

community

1. The realization of transport by amusing entity of the holder of the alvshall or the licence

The Community referred to in Article 3 is punishable:

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a) For the holder of the alvshall or of the Community licence, with the fine of €

1,250 a to € 3,740 and from 5,000 a to € 15,000, depending on whether it is a natural person or

collective.

b) For the person carrying out the transport, with the fine of € 500 a € 1,500

and from € 1,500 a to € 4,500, depending on whether it is a natural or a legal person.

2. Are deemed to be carried out by amusing entity of the holder of the alvshall

transport in which you check any of the following situations:

a) Provision of the transport service with invoicing or receipt in regime of

liberal activity;

b) Existence of contract for use of the vehicle between the alvshall holder company

and a third.

Article 26.

Lack of communication

The lack of communication provided for in Article 11 (2) is punishable by fine of € 250 a

€ 750.

Article 27.

Realisation of transport in vehicles without a licence

The realization of road transport of goods by outrain, by means of

of motor vehicle without the licence referred to in Article 14, is punishable by fine

from 750 a to € 2,250.

Article 28.

Lack of badges

1. The realization of transport without the badges referred to in Article 15, or

when these are placed in unlicensed automotive vehicle, it is punishable by

coima from 100 a to € 300.

2. The ostentation of transport badges by outrain in vehicles not

licenced for the purpose is punishable with fine of € 1,250 a € 3,740.

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Article 29.

Transport without authorization

1. The realization of transport of an exceptional character referred to in Article 16, without

authorization, is punishable with fine of € 1,250 a € 3,740 or € 3,500 a € 10,500,

depending on whether it is a natural or a legal person.

2. The realization of international transport or cabotage without the authorisations to

Referring to Article 17 is punishable with fine of € 1,000 a € 3,000.

Article 30.

Lack or vices of the transport guide

1. The lack of the transport guide is punishable with fine of € 250 a € 750.

2. The incorrect or incomplete filling of the transport guide, from the

liability of the consignor or the carrier, depending on the respective obligation of

padding, is punishable with fine of € 100 a € 300.

Article 31.

Excess load

1. The realization of overload transports is punishable with fine of € 500 a

€ 1,500, without prejudice to the provisions of the following numbers.

2. Whenever the excess load is equal to or greater than 25% of the gross weight of the

vehicle, the offence is punishable with a fine of € 1,250 a € 3,740.

3. In the case of the offence referred to in the preceding paragraph the supervising entity may

order the immobilization of the vehicle until the excess load is transferred, and may

still order the displacement and accompany the vehicle to the appropriate place for the

discharge, recalling on the offender the burden with the discharge or transshipment operations

of the goods.

4. Whenever the excess load occurs in the course of a transport in regime

of full load, the offence is attributable to the shipper and the carrier, in

comparticipation.

5. No driver can be escused to bring the vehicle to the weighing in the ballots at the

service of the supervising entities, who find themselves within a 5 km radius of the place where

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if you check the intervention of the same, being punishable by such conduct with the said fine

in paragraph 2 of this article, without prejudice to the criminal liability to which there is a place.

Article 32.

Lack of presentation of documents

The non-submission of the documents referred to in Article 20 in the act of surveillance

is punishable by the fines provided for, on a case by case, in this decree-law, save if the

missing document is submitted within eight days to the authority indicated by the

supervisory agent, in which case the fine is € 50 a € 150.

Article 33.

Attributability of the offences

Without prejudice to the provisions of Article 25, Article 30 (2) and Article 31 (4) thereof,

the offences of the provisions of this decree-law are the responsibility of the person

singular or collective carrying out the transport.

Article 34.

Ancillary sanctions

1. With the application of the fine for infringement of Article 31 (2) may be decreed to

ancillary sanction of suspension of the licence or seizure of the registration certificate,

of the car vehicle, depending on whether it is transport on account of a train or

transport on its own, if the transporter has practiced three offences of the same

nature, with a definite decision, and these have occurred in the course of the two years

previous to the date of the practice of the offence being decided.

2. With the application of the fine for the offence provided for in paragraph a) of Article 25 (1)

the ancillary sanction of interdiction of the exercise of the activity may be enacted, since

that there has been previous conviction for the practice of the same offence.

3. The interdiction of the exercise of the activity, the suspension of the license of the vehicle or the

apprehension of the registration certificate, provided for in the preceding paragraphs, have the duration

maximum two years.

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4. The application of the incidental sanction of interdiction of the exercise of the activity implies

necessarily the suspension and consequently the deposit in the DGTTF of the licences of

that the infractoring company is a holder.

5. During the period of duration of the ancillary sanction, applied in accordance with paragraph 1, the

license or the registration certificate are deposited in the DGTTF.

Article 35.

Non-domicile offenders in Portugal

1. If the offender is not domiciled in Portugal and does not intend to make the payment

volunteer, must proceed to the deposit of amount equal to the maximum value of the fine

intended for the practiced counterordinance.

2. The voluntary payment or deposit referred to in the preceding paragraph shall be

performed in the act of the counterordinance verification, targeting the deposit to

guarantee the payment of the fine in which the offender may come to be sentenced, as well as

of the legal expenses to which there is place.

3. If the offender declarates that he intends to pay the fine or carry out the deposit and not

can do so in the act of counterordinating the counter-ordinance, it should be seized of

documentation of the vehicle up to the efection of the payment or deposit.

4. In the case provided for in the preceding paragraph, replacement guides shall be issued

documents seized with validity up to the 1º working day after the day of the offence.

5. The lack of payment or deposit in the terms of the previous figures implies the

seizure of the vehicle, which holds up to payment or deposit or to the decision

absolutory.

6. The impounded vehicle responds on the same terms as the deposit by the payment

of the amounts due.

Article 36.

Immobilization of the vehicle

1. Where the immobilization of a vehicle results damage to the goods

conveyed or to the vehicle itself it is up to the natural or legal person who performs

the transport of liability for such damage, without prejudice to the right of return.

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2. It is also the responsibility of the person who carries out the transport, the charges

that results from the transfer to another vehicle in the case of excess load, without

prejudice to the right of return.

Article 37.

Processing of counter-ordinations

1. The processing of the counter-ordinations provided for in this decree-law competes

DGTTF.

2. The application of the fines is the competence of the Director General of Transport

Terrestrial and Fluvial.

3. DGTTF organizes the registration of offences committed under the legislation in

vigour.

Article 38.

Product of the fines

The product of the fines is distributed as follows:

a) 20% for the DGTTF, constituting own revenue;

b) 20% for the supervising entity;

c) 60% for the State.

CHAPTER V

FINAL AND TRANSITIONAL PROVISIONS

Article 39.

Models of authorisations and badges

The models of the alvarás, licences, permits and badges referred to in the present

decree-law, which are not provided for in community regulation or are due to

bilateral agreements or multilateral conventions, are defined and approved by dispatching

of the Director-General of Terrestrial and Fluvial Transport.

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Article 40.

Allocation of revenue

They constitute own revenue of DGTTF the amounts that come to be fixed by

joint dispatch of the Minister of State and Finance and the Minister of Works

Public, Transport and Communications, for the entries in the examination to which the

article 7 and for the issuance of certificates, of alvarás, licences, certificates,

authorisations and badges referred to in this Decree-law.

Article 41.

Final and transitional provisions

1. Natural or legal persons that at the date of entry into force of the present

decree-law carries out transport of goods on account of others exclusively

by means of light vehicles, with gross weight equal to or greater than 2,500 kg, dispose of the

deadline of 18 months to conform to the requirements required for the

licensing of the activity, from the date of entry into force of this Decree-

law.

2. During the period referred to in the preceding paragraph, the light vehicles of

goods do not lack the licence provided for in Article 14 for the realization of

transports of goods on account of you.

3. Companies that, at the date of entry into force of this decree-law, are holders

of alvshall issued by DGTTF for transport activities or for the activity

transitary, may license light vehicles for carriage of goods, not

careening of alvading referred to in Article 3.

4. The alvshall for the carriage of goods in light vehicles, referred to in

article 4, it may be granted with dispensation from the requirement of professional capacity to

societies or cooperatives that, by filling out the remaining conditions of licensing,

they require it within the first six months after the date of entry into force of the present

Decree-law.

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Article 42.

Entry into force

1. This decree-law shall come into force 30 days after its publication, without prejudice to the

provisions of the following number.

2. Companies holding alvshall for road transport of goods at the date of

entry into force of this decree-law shall only be subject to the provisions of paragraph 2 of the article

9., with respect to the financial capacity for access to the activity, from 1 of

January 2008.

Article 43.

Legislation repealed

1. It is repealed the Decree-Law No. 38/99 of February 6.

2. As long as the regulation referred to in this decree-law is not published,

it remains in force the Portaria No. 1099/99 of December 21, which regulates examinations

for obtaining the certificate of professional capacity, as well as the Despachos

n. paragraphs 21994, of October 19, 1999, and 14 to 576/2000, of June 30, 2000,

relative to the transport guide and the dysics.

Seen and approved in Council of Ministers,

The Prime Minister

The Minister of State and Finance

The Minister of State and the Internal Administration

The Minister of Economy and Innovation

The Minister of Public Works, Transport and Communications

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ANNEX I

List of the subjects referred to in Article 7.

The knowledge to be taken into account for the proving of capacity

professional must focus, at least, on the subjects mentioned in the list. The

applicant road carriers must possess the level of knowledge and

practical skills required to run a transport company.

The minimum level of knowledge, as shown below, may not be lower than level 3

of the structure of the levels of training provided for in the Annex to Decision No 85 /368/CEE, i.e.

a training acquired with compulsory education complemented by training

professional or complementary technical training, or by school technical training or

another type of secondary level.

The subjects on which this training is focused and the indicative graduation of the level of

required knowledge listed in the following list, with reference, in particular, to the

themes that the candidate should know about or be able to interpret, negotiate or evaluate.

A) Elements of civil law:

1. Knowing the main contracts commonly used in the activities of

road transport, as well as the rights and obligations of them arising;

2. Be able to negotiate a legally valid transport contract,

in particular with respect to the conditions of carriage;

3. Being able to analyze a customer's complaint regarding the resulting damage wants

of losses or faults of the goods in the course of transport, whether of the delay in delivery,

as well as the effects of that claim, as to its contractual liability;

4. Knowing the rules and obligations arising from the CMR Convention relating to the

contract for international road transport of goods.

B) Elements of commercial law:

1. Know the conditions and formalities necessary to exercise the trade and the

general obligations of traders (registration, commercial books, etc.), as well as the

consequences of the bankruptcy;

2. Possess sufficient knowledge of commercial societies, forms and rules of

constitution and operation.

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C) Elements of social law:

1. Knowing the role and functioning of the different social institutions that

intervene in the road transport sector (trade unions, commissions of workers,

staff delegates, inspection of the work, etc.);

2. Knowing the obligations of employers in social security matters;

3. Knowing the rules applicable to employment contracts concerning the different

categories of workers of the road transport companies (form of the contracts,

obligations of the parties, conditions and time of work, paid vacations, remuneration,

termination of the contract, etc.);

4. Knowing the provisions of Regulation (EC) No 561/2006, of Parliament

European and Council, of March 15, 2006, of Regulation (EEC) No 3821/85,

as well as the respective practical implementation measures.

D) Elements of tax law:

1. To VAT applicable to transport services;

2. To the movement tax of vehicles;

3. To taxes on certain vehicles used for the road transport of

goods, as well as the tolls and rights of use charged for the use of

certain infrastructure;

4. To taxes on income.

E) Commercial and financial management of the company:

1. Knowing the legal and practical provisions relating to the use of cheques, letters,

promissory notes, credit cards and other means or methods of payment;

2. Knowing the forms of credit (banking, documentary, fiances, mortgages, leasing

financial, rental, invoicing, etc.), as well as the respective charges and obligations

of them arising;

3. Know what the balance sheet is, how it presents itself and the ability to interpret it;

4. Be able to read and interpret an account of gains and losses;

5. Be able to analyze the financial situation and profitability of the company,

particularly on the basis of financial coefficients;

6. Be able to prepare a budget;

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7. Knowing the different components of their cost prices (fixed costs, costs

variables, operating funds, amortizations, etc.) and be able to calculate by vehicle,

to the kilometre, the journey or the tonne;

8. Be able to draw up an organigram and arrange plans (relating to the whole

company personnel, work plans, etc.);

9. Knowing the principles of market studies ( marketing ), promotion of sale

of transport services, elaboration of customer files, advertising, relations

public, etc.;

10. Knowing the different types of own insurance of road hauliers

(liability insurance) as well as guarantees and the obligations arising therefrom;

11. Knowing telematics applications in the field of road transport;

12. Be able to apply rules regarding the invoicing of transport services

road of goods and know the meaning and effects of the incoterms ;

13. Knowing the different categories of transport aids, their role, their

functions and their eventual status.

F) Access to business and market:

1. Knowing regulation on road transport on account of outrain, to

the leasing of industrial vehicles, for subcontracting, in particular the rules

relating to the official organisation of the profession, access to the same, the authorisations for the

Intra-community and extra-community road transport, control and the

sanctions;

2. Knowing the regulations concerning the establishment of a company of

road transport;

3. Knowing the different documents required for the execution of the services of

road transport and relating to the vehicle, the driver or the merchandise;

4. Knowing the rules regarding the organisation of the road transport market

of goods, the administrative handling of cargo and logistics;

5. Knowing the formalities of crossing borders, the role and scope of the

documents T and TIR carnets, as well as the obligations and responsibilities that the

its use implies.

G) Technical and operating standards:

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1. Knowing the rules regarding the weights and dimensions of vehicles in the states

members, as well as the procedures relating to exceptional transport that

constitute derogations from those rules;

2. Be able to choose depending on the needs of the company the vehicles and their

elements (frame, engine, transmission organs, braking systems, etc.);

3. Knowing the formalities relating to the reception, registration and technical control of the

vehicles;

4. Be able to study the measures to be taken against air pollution by emissions from the

motor vehicles and against noise;

5. Be able to draw up periodic maintenance plans of the vehicles and their

equipment;

6. Knowing the different types of moving and loading devices

(rear platforms, containers, pallets, etc.), procedures and relative instructions

to the loading and unloading operations of the goods (distribution of cargo, stacking,

stowage, fixation, etc.);

7. Knowing techniques of combined transport (rail-rail or ro-ro );

8. Be able to implement the procedures designed to comply with the

rules relating to the transport of dangerous goods and waste, procedures

intended to comply with the rules arising from Directive No 94 /55/CE, of the

Directive No 96 /35/CE and of Regulation (EEC) No 259/93;

9. Be able to apply the procedures aimed at fulfillment,

notably, to the rules arising from the agreement on international transport

of perishable food products and the specialized equipment to be used in these

transport (ATP);

10. Be able to apply the procedures designed to comply with the

regulation on the transport of live animals.

H) Road safety:

1. Knowing the qualifications required of drivers (driving licence, certificates

doctors, attestative of capacity, etc.);

2. Be able to carry out actions to make sure that drivers respect the

rules, prohibitions and the restrictions of movement in force in the different States

members (speed limits, priorities, stopping and parking, use of the

lights, road signs, etc.);

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3. Be able to draw up instructions aimed at drivers relating to

verification of the safety standards regarding the state of the transport material, of the

equipment and cargo and preventive driving;

4. Be able to institute conduct procedures in the event of an accident and to apply

the appropriate procedures to prevent the repetition of accidents and serious infringements.

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ANNEX II

Organisation of the examination for obtaining professional capacity

1. The examination for obtaining professional capacity is constituted by an examination

written mandatory, which can be completed by an oral exam to check if the

candidates for road hauliers possess the level of required knowledge

in the subjects indicated in Annex I.

2. The mandatory written examination consists of the following two proofs:

2.1. Multiple-choice questions with four possible answers, questions from

direct response, or a combination of the two systems;

2.2. Written exercises / case analysis.

The minimum duration of each of the two proofs is two hours.

3. In the case of an oral examination, participation in such examination is

subordinate the approval in the written evidence.

4. The assignment of points to each proof shall be subordinate to the following criterion:

4.1. If the examination includes an oral exam, each of the three proofs cannot be

assigned less than 25% of the total points in the exam, nor more than 40%;

4.2. If it is organised only a written exam, each proof cannot be assigned

less than 40% percent of the total exam points, nor more than 60% percent.

5. On the whole of the evidence, applicants must obtain at least an average of

60% of the total points of the exam. The score obtained on each proof cannot be

less than 50% of points assigned to it, and may, however, be reduced to 40%

in a single proof.