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Parliamentary Group

DRAFT LAW NO. 164 /X

It sets out rules for the defence and enhancement of the rights of motorway users

Exhibition of reasons

In recent years the main financial effort on the part of the successive

Governments of Portugal headed, in the part that concerne transport, to construction and

improvement of land routes, with a great focus on the construction of a national network

of motorways that would at least link the main Portuguese cities. This fact,

allied to the near absence of strategy and investment in other forms of transportation,

led to the generality of the Portuguese to be forced to opt for the displacement in

individual passenger transport, the car, choosing for such, almost without

exception, the highways.

This choice on the part of the Portuguese behaves, for the generality of the network of

motorways, an increased cost-the payment of a fee (toll)-

providing countermatches. The advantages of this choice, despite the exorbitance

charged at certain displacements (Class 1 vehicles pay more than 30 €

between Lisbon and the Porto ...), are the safety, speed and convenience of displacement,

may the utent schedule your displacement, given these advantages, with some degree

for sure.

The State, through successive Governments, has decided that, for the sake of a putative

economic efficiency, the construction, conservation and operation of the national self-driving network

roads would be better delivered if these tasks were to be concessionated to private. This,

say, it happens a little bit all over Europe. In Portugal, as is the knowledge

general, these tasks are delivered to a consortium designated by BRISA-Auto-

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Roads of Portugal, S. A., under a Decree prior to the April 25, 1974,

whose bases were successively altered by later diplomas. Although it is not

the only dealership to operate in our country, BRISA, directly or indirectly,

through the detention of social shareholdings of these companies, holds the monopoly of

operation of the national motorway network.

The Concession Contract in force, the term of which was abruptly

increased in one of the acts that the Government of Santana Lopes had premence to carry out,

establishes bases to which the dealership has to obey to, among other aspects,

safeguard the fluidity and safety of traffic on these important avenues.

One of them forces the dealership to perform works for increase in the number of

carriages in each sense if traffic between certain sections reaches certain

volume to, precisely, comply with its obligation to guarantee fluidity and

security of the track. For as much, as it is good to see, the traffic on these sections, while

durate the works, results irredeemably changed, for, not rare, only passes the circular

by a carriageway over considerable distances. However, while they arise

the execution of the works, even though the dealership does not offer a service that

guarantee the fluidity, convenience and safety of the path, the utent of that same path

pay as if the contraption had been fully complied with by the

dealership. This aspect, by unfair, is envisaged in the general theory of law and

considers itself to be incorporated into all contracts: it is the one that is designated by the exception of no

compliance, which, since soon, confers the right to the utent of failing to comply with its

obligation-the payment of the toll.

However, as is a rule in all major companies, the dealerships of

motorways have a vast and well-oiled legal department to respond, from

form Celere, to any meddling in what they consider to be their rights. This

fact has, since soon, the condo of inhibiting the utent from carrying out any action outside the

norm because, primacially, it is not to be bored by a value not too much

high in relation to the time that, it will certainly plummet by confronting such an arsenal

legal. So, it is necessary for the state through legislative means, to act,

clarifying the rights of motorway users and the obligations of the

dealerships because the utent cannot be harmed due to compliance with

an obligation to which the dealerships are, freely, adstrites.

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The Parliamentary Group of the Left Bloc, in what was followed by others

Parliamentary groups, submitted in September 2004 the Draft Resolution n.

278 /IX, where, following another Draft Resolution approved by

unanimity in January of that year, if it recommended to the Government the suspension of the

payment of tolls on the Aveiras-Santarém trolleys in A1, and the strengthening of prevention and

security in that trolle in the length of the works, in which, incidentally, they have occurred

numerous accidents during the period of realization of the works, causing immense

damages to those who used that route.

On the other hand, but also directly related to this true

legal arsenal at the disposal of the dealerships, the State also has to intervene in the

definition of the type of liability that is up to the dealerships of the highways. The

what is going on today is that, after lengthy legal actions, the jurisprudence of the

Portuguese courts, save for rare exceptions, have understood that the responsibility of the

dealerships of the highways is merely subjective, that is, these only respond

by the damage caused to users if these prove the fault or negligence of those.

Thus, if, for example, an animal crosses the motorway and, via direct and

necessary of this causality, damage occurs to the utent of the motorway, this alone

you may be ressarated from them if you are able to prove the negligence or the guilt in the

performance of the dealership of that trolle. This, in addition to almost substantiating what

assigns itself by "diabolical proof", leads to the dealerships, in place of making

efforts to have the circulation by the lanes concessionated occur safely and free from

unforeseen hazards for users, as is their obligation, to use the legal means

at your disposal to stall an eventual compensation, this if the utterer gets the

unlikely ...

Ora, as of the rest happens in Spain and in more countries, the dealerships

of the highways, as they are obliged to ensure the safety of the tracks to them

dealerships, should direct their efforts to ensure this important requirement

to users. For so much, they must be the same dealerships to entail with the onus of the

evidence in the event of an anomalous occurrence in the tracks that are incarcerated from the velar. Must

be the dealerships, therefore, and going back to the example behind pointed out, to prove that the

animal that caused damage to a utterance from the concessionary route, managed to enter the

same despite all the security requirements of the track have been met by the

dealership, so that this is not obliged to indemnify the utent.

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Thus, the state, also by legislative route, should intervene in this direction,

clarifying obligations for dealerships, leading to the same ones focusing on

in what should be a priority in a grant of the genre: the safety of the tracks.

By the exposed, the Parliamentary Group of the Left Bloc, with this initiative

legislative aims to have rules of justice to apply on all highways and, if

exist, if they consider themselves incorporated in the ongoing concession contracts by strengthening,

so, the rights of millions of motorway users and contributing to the reinforcement

of the security of them.

Thus, in the applicable constitutional and regimental terms, the Deputes and the

Deputies from the Left Bloc, present the following Draft Law:

Article 1.

Subject

This diploma sets out rules for the defence and enhancement of the rights of users

of motorways and road crossings with toll collection.

Article 2.

Scope

1-The provisions of this diploma shall apply to all integrated road routes

on the national motorway network, regardless of the payment of toll by the

use of these pathways.

2-The provisions of this diploma shall apply still to all crossing

road in which it covers toll by its use.

3-In the event of the existence of concession contracts, the one provided for in this diploma

considers itself an integral part of it.

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Article 3º

Suspension of toll payment

1-On the road tracks integrated into the national motorway network where to

carry out the payment of tolls, the payment of the toll suspending during the

period in which they perform works and while not being reimposed the standard circulation of the

via, on the extension corresponding to the intervened laneway.

2-For the purposes of this diploma, all works are considered to be works on the track of

circulation of which result in the removal of berms, reduction of the number of pathways

usable, deviations from the carriageway, or imply a reduction of the ceiling

of the speed of circulation.

3-For the purpose of application of the provisions of paragraph 1, laneway corresponds to the sections

where the motorways are divided.

4-The provisions of the preceding paragraph shall apply, with the necessary adaptations, to

all road crossings where the toll collection takes place.

5-The scheme provided for in this article does not apply in the case of works with duration

less than 48 hours.

Article 4º

Mandatory information

1-When performing works on the motorways, the placement of

informative plaques in all areas of access to the track.

2-The informative plates must mention, obligatorily, the place

intervened, the extension of the works, the intended duration for the purpose of the same, the

toll value to be paid by taking into consideration the provisions of paragraph 1 of the preceding Article and

the alternative routes to the main destinations.

3-At the place of execution of the works there shall be appropriate signalling, horizontal

and vertical, including, obligatorily, two luminous panels, placed at 5 km and 1

km from the beginning of the works, where the information of the place of realization of the works, the

number of hindered lanes and the recommended speed.

4-At road crossings, the information referred to in the preceding paragraph shall

be placed at the beginning of the crossing and immediately prior to the start of the works.

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5-The provisions of this article shall also apply that the duration of the planned works shall not

exceeds 48 hours, with the exception of the reference to the value of the toll to be paid.

Article 5º

Civil liability

1-When, by virtue of anomalous occurrences to the normal circulation in the auto-

roads, with or without the payment of toll, result in personal or material damage

for track users, the burden of proof of compliance with all obligations of

security, to which the incarcerated entities of the conversation and exploitation of the track are

adstrites, it's up to these.

2-For the purposes of the provisions of the preceding paragraph, circumstances shall be considered

anomalous ones that prevent the regular circulation in the via by strange occurrences to the

users of the same and the actual direction of the vehicle and the risks therefrom,

particularly:

a) Existence of strange objects on the routes of movement;

b) Cross-section of animals;

c) Existence of liquids on the track which, by their nature or volume,

may originate the loss of control of the vehicle of movement.

Article 6º

Entry into force

This diploma comes into force 30 days after its publication, except for the

provisions of the previous article that come into force on the day of the publication of this diploma.

Assembly of the Republic, September 22, 2005.

The Deputies and Deputies of the Left Bloc,