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Approves The Scheme Of Non-Contractual Liability Of The State And Other Public Entities

Original Language Title: Aprova o regime da responsabilidade civil extracontratual do estado e demais entidades p├║blicas

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PROPOSED LAW NO. 56 /X

Exhibition of Motives

The XVII Constitutional Government has made a commitment to enshrine a new regime

of extracontratual civil liability of public legal persons, in the sequence

of initiatives previously taken and that, for reasons that repeated, did not give

place to a legal text.

In effect, in the VIII legislature, the XIV Constitutional Government carried out the purpose

to draw up a diploma that would regulate the subject matter globally

state excerctual and too many public entities, for damages resulting from the

exercise of the political and legislative, jurisdictional and administrative functions, by the first

time in our legal order.

For the purpose of this, it has promoted the realization of a public participation process, in the framework

of which the major issues that in this field have been discussed, having been

brought together in book the texts of the interventions carried out. Various contributions to the

reform were subsequently presented, with highlight to that of the Order of the

Lawyers, who released a text, drawn up by a commission of reputed

specialists, in which he presented, in the form of articulate, his proposals on the

matter.

Thus, on November 30, 2001, the Assembly of the Republic approved in the

generality and with the favorable vote of all the parties represented, the Proposal of

Law No. 95 /VIII, presented by the Government in July 2001, on the scheme of the

Extracontrattual Civil Responsibility of the State.

The said Proposal for a Law did not, however, come to be approved in the specialty by the

Assembly of the Republic, by virtue of the resignation of the Government, which entailed the

expiry of the said Law Proposal and forced the restart of a new

legislative procedure.

Initiated new legislature, a group of MPs from the Party Parliamentary Group

Socialist presented, on October 16, 2002, a new draft law of

Extracontrattual Civil Responsibility of the State (Draft Law No 148 /IX), which if

based on the Proposal for Law No. 95 /VIII. This Project was also approved by

unanimity, in generality, in November 2002.

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In September 2003, the XV Constitutional Government submitted to the Assembly of the

Republic the Proposal for Law No. 88 /IX, which was also approved in the generality

by the Assembly of the Republic.

On the similarity of what succeeded in 2001 with the Proposal for Law No. 95 /VIII, those referred

proposals did not arrive to be voted on in the specialty, by virtue of the resignation of the

Government, what determined, once again, the expiry of the proposals, obliging the

restart of new legislative procedure.

The Government now presents again to the Assembly of the Republic a proposed law

regulating the regime of the extracontrattual civil liability of the State in the wake of the

projects presented by the XIV Constitutional Government and by the Group's MPs

Lawmaker of the Socialist Party.

The various contributions collected in the course of this long process were taken in

account in the drafting of the present proposed law, with emphasis on the proposals

contained in the text submitted by the Order of Lawyers, the articulate of which was, in

great measure, resumed, in that it appeared to be shared many

of the recitals in which he was based and that, in this explanatory statement, by this

even if subscribed to.

It may be said that it appears to be correct the option of leaving for the redefinition of the scheme of the

extracontrattual civil liability of the State and too many legal persons of law

public, at least in what the exercise of the administrative function refers to, of the scheme

statues in the Decree-Law No. 48051 and the solutions that, over the times, in its

around were being gated by Portuguese jurisprudence. Hence it was considered useful

incorporate into the law solutions which, having been asserted in the jurisprudential practice, the

normative consection will allow to consolidate.

It is what succees with some of the precepts that integrate the general provisions as well as

with some of the standards in respect of responsibility for the exercise of the function

administrative-with highlight for the consecration, with general reach, of the understanding,

already assumed by the administrative jurisprudence, of which the possible non-use of the route

procedural appropriate to the elimination of an aggrieved legal act, alone, does not put in

causes the right to compensation, only may be relevant in the framework of the fault institute

of the aggrieved.

The new diploma seeks, in the meantime, to give, finally, response to the need, there is

very much felt, of adapting the legal regime of the extracontratual civil liability of the

public entities to the demands dictated by the Constitution of the Republic. In this sense

perfected the regime of responsibility for the exercise of the administrative function,

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extending the field of application of the regime of solidary responsibility to the field

of the ducts practiced with serious guilt; establish themselves, for the first time in Portugal,

a general regime of responsibility for the exercise of the jurisdictional function; and introduces-

whether an innovative regime in the matter of responsibility for the exercise of the functions

policy and legislative. Of no less reach is the option of consecration, in the broadest

terms, the duty of the state and too many legal persons of public law

indemnify all of the one to whom, for reasons of public interest, impose charges

or cause any special and abnormal damage, without circumscribing the regime to the exercise of the

administrative function.

It is, in any of these areas, to comply with the imperatives of the State

of law, ensuring the appropriate guardia of who is wronged by the ill-acting of the

public entities and, of the same step, promoting quality and responsibility in the

exercise of public powers. In the latter sense enrolling the transformation of the

right of return, when it exists, in a binding power of exercise.

First of all, it is opposed, in the present diploma, for maintaining the differentiation that, in the order

Portuguese legal, it has been established between administrative acts that give way

to a liability governed by provisions of public law and acts

administrative that gives way to a liability governed by provisions of law

private, circumscribing the scope of the diploma to the definition of the public law regime

of the extracontratual civil liability of public entities.

It is considered, in fact, that they are not qualitatively identical and, so,

indistinguishable from the mains that public entities develop as if they were

private entities and those that they adopt in the exercise of public powers of

authority or, in any case, under provisions and principles of public law,

institutives of special duties or constraints, of a nature specifically

administrative, which do not apply to the performance of private entities. And that, inside

from that perspective, they still remain valid the reasons that, historically, led to

associate with this distinction a differentiation of regimes, admitting that when it is in

causes the exercise of public functions, the direct responsibility of the organ holder,

employee or agent and the right of return on it should only exist when

there has been dolo or serious guilt on your part.

It is, in fact, to recognize that the functional obligations of public servants

can be vast and complex, which can lead them to commit a greater number of

faults without serious guilt, and of admitting that the exposure of the agent, in these cases, to the

payment of amount claims far higher than the probates that the function

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it provides you can make the fear of being held responsible for light guilt

inhibited in its initiatives, damaging the serenity and independence of its judgements.

It is thus chosen to delimit the material scope of the actuations covered by the scheme of

liability in the sole discretion of the substantive legal regime under which

they have been adopted.

At a historic moment of recognition and growing indefinition with regard to the

delimitation of concepts such as that of "Public Administration" or even of " entities

public ", not missing who in them includes the legal persons who, having been created

second forms of institution governed by private law and functioning

fundamentally under private law rules, they are, however, held by

public entities, manage public resources and pursue finality of interest

public, there was also the purpose of avoiding ambiguities as to the determination of the

extension in which the present diploma applies to such entities, " public entities under

private forms ". For this reason is resorted to the classic contraposition between " people

public law collective "and" legal persons of private law " to clarify

that both the responsibility of one another and that of others is only governed by this diploma

when it results from actuations regulated by specific provisions and principles of law

administrative, according to the material criterion of delimitation that has already been exposed.

As yet with regard to the civil liability of the Administration, the main

proposed amendments consist of the already mentioned enlargement of the rule of solidarity, in

compliance with the Constitution, to the field of conduct carried out with serious guilt;

the legal consecration of the objective responsibility of the Administration by the

abnormal operation of its services; and the introduction of a presumptive regime of

guilt, in cases where damage is caused by legal acts, which it comprises

administrative acts and acts of normative content.

With the introduction of this presumption of guilt, it is finally approaching the picture

normative legislated from the practice of our administrative tribunals, which-in tune

with the tradition firmed up in the southern European countries, with particular emphasis on the

France, and, by the influence of this, on Community law-, already long ago

understanding that guilt is inherent in the practice of illegal legal acts by the

Administration. From the same step, it thus gives satisfaction to the demands imposed by the

Directive No 89 /665/CEE of December 21 to which the Directive came to be brought together

92 /13/CEE, of February 25, which, although in the specific field of consequences

of the cancellation of acts relating to the formation of certain type of contracts, if they echo the

guidance, from French matrix, which has inspired the Court of Justice of the

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Communities in the area of responsibility for illegal administrative acts and which

precisely rests on the understanding that guilt lies with insect in lawlessness

committed, without caretaking, by that, of demonstration.

It is moved forward, on the other hand, towards the alagment of civil liability of the

State for damages resulting from the exercise of the jurisdictional function, making, to the effect,

a bold option: that of extending to the field of operation of the administration of the

justice the regime of the responsibility of the Administration, with the caveats that arise

of the own regime of the judicial error and with the restriction that results from the fact that it is not

admit that the magistrates respond directly to the ilocytes they commit with

dolo or grave guilt, so it does not apply to them the liability regime in solidarity

which is worth to the holders of organs, officials and administrative agents, including the

that provide service in the administration of justice.

With regard to the regime of the judicial error, in addition to the generic delimitation of the

institute, based on a criterion of evidence of the error of law or in the assessment of the

assumptions in fact, it was understood to limit the possibility of the courts

administrative, in an action of responsibility, to speak out about goodness

intrinsic of jurisdictional decisions, requiring the claim to be sought

founded on the prior revocation of the damaging decision by the competent jurisdiction.

Of particular scope is the option of moving towards the consecration of a general regime of

Responsibility of the State and Autonomous Regions for unlawful actions or omissions

committed in the exercise of political or legislative functions.

Pese though the delicacy of matter and the incipience of the jurisprudential practice,

it is understood not to duty the legislator to keep silent on the constitutive elements of the

liability which, in this field, is of some specificity and whose

definition, so even, it becomes more difficult.

In this sense if they identify the situations of ilicitude by reference to the offence of rights

fundamental, when it is in question the evident violation of the duty of its protection,

as well as the injury of legally protected rights or interests, when it results from the

violation of constitutional rules, international or community law, or of

enhanced value standards.

Recognizing, with the doctrine, that the civilistical concept of guilt if coaduna poorly with

the freedom of conformation inherent in political function and with the adversarial inherent in the

parliamentary pluralism, but that at the same time it imposes some demand on the

determination of the criteria to be adopted in this area, it is opposed to avoid the appeal, in this

context, to a concept of guilt, to recognize the need to appreciate the

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context that surrounded the lesive conduct, determining whether the performance of the legislator

abstract corresponded to the objectively chargable patterns in function of the

circumstances of the case.

It is agreed that it is justified to admit the possibility of the court limiting the

compensation when aggrieved by an unlawful legislative action or omission and culpable

are in such a number that it is justified, for reasons of public interest of exceptional

relief, such a solution.

It harmonizes, meanwhile, the provisions of the Statute of the Public Prosecutor's Office with what today

is set out, in the Statute of Judicial Magistrates, as to the assumptions of

which depends on the exercise of the right of return of the State on the magistrates,

circumscribing the scope of exercise of that right to the cases of dolo or serious guilt.

The Higher Council of the Magistrature was heard, the Higher Council of the

Administrative and Fiscal Courts, the Higher Council of the Public Prosecutor's Office, the

Order of Lawyers, the House of Solicitors and the Council of Officers of

Justice.

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.

Approval

The regime of extracontratual civil liability of the state is approved and too much

public entities, which publishes itself in annex to this Act and that it is a part of

member.

Article 2.

Special regimes

1-The provisions of this Law shall safeguard special regimes of responsibility

civil for damages arising from the exercise of the administrative function.

2-A present law prevails over any legal remission to the regime of

extracontrattual civil liability of private law applicable to persons

public law collective.

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Article 3.

Payment of compensation

1-When there is place for the payment of compensation due by legal persons

belonging to the indirect State Administration or to the autonomous Administration and the

competent judicial sentence is not spontaneously executed at the maximum time

of 30 days, the indemnity credit can only be satisfied on account of the appropriation

budget entered on the order of the Higher Council of Administrative Courts and

Tax (CSTAF) to the subsidiary title when, through the application of the scheme of the

execution for payment of certain amount regulated in civil procedural law, no

it has been possible to obtain the respective payment from the responsible entity.

2-The provisions of the preceding paragraph shall be without prejudice to the possibility of the person concerned

ask directly for the compensation of your credit with possible debts that the

onset for with the same legal person, pursuant to Article 170 of the Code

of Process in the Administrative Courts, with no need to request

previously the satisfaction of your credit indemnity through the application of the

execution regime for payment of certain amount provided for in the procedural law

civil.

3-In the situations provided for in paragraph 1, if the providences of

execution for payment of certain amount provided for in civil procedural law without which

it has been possible to obtain the respective payment through the responsible entity, the

court clerks immediately notifies the CSTAF to issue the order of

payment of the indemnity, regardless of court order and such having

been requested, at the subsidiary title, in the enforcement petition.

4-When the satisfaction of the indemnity credit occurs by way of the Budget of

State, in accordance with paragraph 1, the State enjoys the right of return, including interest of

lives, on the responsible entity, to exercise in one of the following ways:

a) Discount on transfers to be carried out for the entity concerned in the

State budget of the following year;

b) Dealing with entity belonging to the indirect Administration of the State,

officiating enrollment in the respective private budget by the tutelary organ to the

what kayba the approval of the budget; or

c) Action of return to be intried in the competent court.

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Article 4.

Amendment to the Statute of the Public Prosecutor

Article 77 of the Staff Regulations of the Public Prosecutor's Office shall be replaced by the following:

" Article 77.

[...]

Outside the cases in which the lack constitutes crime, civil liability

only can be carried out, upon action of return of the State, in case

of dolo or grave guilt. "

Article 5.

Abrogation standard

The Decree-Law No. 48051 of November 21, 1967 and Articles 96 and 96 are repealed.

97 of Law No. 169/99 of September 18, in the wording of the Law No. 5-A/2002 of 11 of

January.

Article 6.

Entry into force

This diploma shall come into force within thirty days after the date of its publication.

Seen and approved in Council of Ministers of December 7, 2005

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs

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Attachment

Regime of extracontratual civil liability of the State and too many entities

public

CHAPTER I

General provisions

Article 1.

Scope of application

1-A extracontrattual civil liability of the State and the remaining legal persons

of public law, for damages resulting from the exercise of political functions and

legislative, jurisdictional and administrative, shall be governed by the provisions of this diploma,

in everything that is not provided for in special law.

2-For the effects of the provisions of the preceding paragraph, they correspond to the exercise of the function

administrative the actions and omissions adopted in the exercise of prerogatives of power

public or regulated by provisions or principles of administrative law.

3-Without prejudice to the provisions of special law, the present diploma also regulates the

civil liability of the holders of organs, officials and public servants, by

damage arising from actions or omissions adopted in the performance of the duties

administrative and jurisdictional and because of that exercise.

4-The provisions of this diploma are still applicable to the civil liability of the

remaining workers in the service of the entities covered, considering

extensive to these the references made to the holders of organs, officials and agents.

5-The provisions that, in this diploma, regulate the responsibility of persons

public law collective, as well as the holders of their bodies, officials and

agents, for damages arising from the exercise of the administrative function, are also

applicable to the civil liability of legal persons under private law and

respective workers, holders of social bodies, legal representatives or

auxiliaries, by actions or omissions they adopt in the exercise of prerogatives of

public power or that they are regulated by provisions or principles of law

administrative.

10

Article 2.

Damage or special charges and abnormality

For the purposes of the provisions of this diploma, the damage or

charges that focus on a person or a group, without affecting the generality of the

people, and abnormal those who, surpassing the own costs of life in society,

they deserve, by their gravity, the tutelage of the right.

Article 3.

Obligation to indemnify

1-Whoever is obliged to repair a damage, under the provisions of this Law, shall

reconstitute the situation that would exist if it did not have occurred the event that obliges the

repair.

2-A compensation is set in cash when the natural reconstitution is not

possible or not to fully restop the damage.

3-A The liability provided for in this Law shall comprise the damage of the patrimonial and not

heritage, as well as the damage already produced and the future damage, in the general terms

of law.

Article 4.

Guilt of the aggrieved

When the culposable behavior of the injured has competed for production or

aggravation of damage caused, specifically by not having used the procedural route

appropriate to the elimination of the lesive legal act, it is up to the court to determine, on the basis of

gravity of the culpas of both parties and the consequences that they have

result, if the compensation should be fully awarded, reduced or even

deleted.

Article 5.

Prescription

The right to compensation for extracontratual civil liability of the State, of the

too many legal persons of public law and the holders of the respective bodies,

11

officials and agents, as well as the right of return, prescribe under the terms of the

article 498 of the Civil Code, by giving them applicable the provisions of the same Code in

suspension matter and interruption of prescription.

Article 6.

Right of return

1-The exercise of the right of return, in cases where this is provided for in the

present law, it is mandatory, without prejudice to the disciplinary procedure to which there is a place.

2-For the purposes of the provisions of the preceding paragraph, the office of the court having

doomed the legal person referred to the sentence certificate, soon after the transit in

judged, the entity or the competent entities for the exercise of the right to

return.

CHAPTER II

Civil liability for damages arising from the exercise of the function

administrative

SECTION I

Liability for unlawful fact

Article 7.

Exclusive responsibility of the State and too many legal persons of law

public

1-The State and the other legal persons governed by public law are exclusively

responsible for the damage resulting from unlawful actions or omissions, committed with

light guilt, by the holders of their organs, officials or agents, in the exercise of the

administrative function and because of that exercise.

2-It is granted compensation to persons injured by breach of norm occurring in the

scope of procedure for the formation of the contracts referred to in Article 100 of the

Code of Procedure in Administrative Courts, pursuant to this Law.

3-The State and the other legal persons of public law are still responsible

when the damage did not result from the concrete behaviour of a holder of

organ, employee or agent determined, or it is not possible to prove authorship

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staff of the action or omission, but should be attributed to abnormal functioning

of the service.

4-There is abnormal operation of the service when, given the circumstances and the

average result patterns, were reasonably payable to the service a performance

likely to avoid the damage produced.

Article 8.

Liability in solidarity in the case of dolo or serious guilt

1-The holders of organs, officials and agents are responsible for the damage that

result from wrongful actions or omissions, by them committed with dolo or with

diligence and zeal manifestly inferior to those to which they found themselves obliged

on the grounds of the post.

2-The State and the other legal persons of public law shall be responsible in a manner

sympathetic to the respective holders of organs, officials and agents, if the shares

or omissions referred to in the preceding paragraph have been committed by these in the

exercise of their duties and because of that exercise.

3-Where they meet any compensation in the terms of the preceding paragraph, the

State and the other legal persons of public law shall enjoy right of return

against the holders of bodies, officials or responsible agents, competing for the

holders of steering, supervisory, superintendency or guardian powers

adopt the necessary arrangements for the actuation of that right, without prejudice to the

possible disciplinary procedure.

Article 9.

Ilicitude

1-Consideration of the actions or omissions of the holders of organs, officials and

agents who violate constitutional provisions or principles, legal or

regulatory or infringing rules of technical order or objective duties of

care, and that it results in the offence of legally protected rights or interests.

2-There is also ilicitude when the offence of rights or interests legally

protected result from the abnormal functioning of the service, the provisions of paragraph 3

of Article 7 para.

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Article 10.

Guilt

1-A The fault of the holders of organs, officials and agents shall be appreciated by the

diligence and aptitude that is reasonable to require, depending on the circumstances of each

case, of a body holder, employee or zealous agent and compliant.

2-Without prejudice to the display of dolo or serious guilt, the existence of

light guilt in the practice of unlawful legal acts.

3-In addition to the remaining cases provided for in the law, it is also presumed to be light guilt, by

application of the general principles of civil liability, where there has been

non-compliance with surveillance duties.

4-When there is plurality of those responsible, the provisions of Article 497 shall apply.

Civil Code.

SECTION II

Responsibility for risk

Article 11.

Responsibility for risk

1-The State and the other legal persons of public law respond for the damage

arising from activities, things or administrative services especially

dangerous, save when, in the general terms, prove that there was force majeforce or

competition of guilt from the injured, and the court may, in the latter case, having in

account for all circumstances, reduce or exclude compensation.

2-When a third party culpable fact has competed for production or

aggravation of damage, the state and the other legal persons under public law

responds in solidarity with the third party, without prejudice to the right of return.

CHAPTER III

Civil liability for damages arising from the exercise of the jurisdictional function

Article 12.

General regime

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Unless the provisions of the following articles are applicable, it shall apply to the damage unlawfully caused by the

administration of justice, specifically for violation of the right to a judicial decision

within a reasonable time, the regime of liability for unlawful facts committed in the

exercise of the administrative function.

Article 13.

Liability for judicial error

1-Without prejudice to the special arrangements applicable to cases of sentencing criminal sentencing

unjust and unwarranted deprivation of liberty, the state is civilly responsible

for damages arising from unconstitutional or illegal jurisdictional decisions or

unjustified by gross error in the appreciation of the respective assumptions of fact.

2-The claim for damages shall be founded on the prior revocation of the damaging decision

by the competent jurisdiction.

Article 14.

Responsibility of magistrates

1-Without prejudice to the criminal liability in which they may incur, the magistrates

judicial and the Public Prosecutor's Office cannot be directly held responsible

for the damage arising from the acts that they practise in the performance of their respective

functions, but when they have acted with dolo or grave guilt, the state enjoys

right of return against them.

2-A The decision to exercise the right of return on the magistrates rests with the organ

competent for the exercise of disciplinary power, either at the officious title or on the initiative

of the Minister of Justice.

CHAPTER IV

Civil liability for damages arising from the exercise of political functions and

legislative

Article 15.

Responsibility in the exercise of political and legislative functions

15

1-The State and the autonomous regions are civilly responsible for the abnormal damage

caused to the legally protected rights or interests of citizens by acts which,

in the exercise of political or legislative function, practise in disconformity with the

Constitution, international law, Community law or legislative act of

enhanced value.

2-A decision of the court to rule on unconstitutionality or unlawfulness

of legal standard or about its discompliance with international convention,

for the purposes of the preceding paragraph, it amounts to, for due legal effects, the decision of

refusal of application or the decision to apply as a standard whose unconstitutionality,

illegality or disconformity with international convention there has been aroused

during the process, as the case may be.

3-The State and the autonomous regions are also civilly responsible for the damage

abnormal that, for the legally protected rights or interests of citizens,

result from the omission of legislative arrangements necessary to make enforceable

constitutional rules, international law or community law, or standards

contained in legislative act of enhanced value, as well as those that result from the

evident violation of the duty to protect fundamental rights.

4-A The existence and extent of the responsibility laid down in the preceding paragraphs are

determined given the circumstances of each case and, in particular, to the degree

of clarity and accuracy of the violated standard and to the fact that they have been adopted or

omitted representations likely to avoid the situation of ilicitude.

5-A The constitution in liability founded on the omission of legislative arrangements

necessary to make enforceable constitutional standards depends on the preview

verification of unconstitutionality by omission by the Constitutional Court.

6-When the aggrieved are in such a number that, for reasons of public interest of

exceptional relief, if it justifies the limitation of the scope of the obligation to indemnify,

this can be fixed equitably in an amount lower than that which would correspond to the

full repair of the damage caused.

CHAPTER V

Compensation for sacrifice

Article 16.

Compensation for sacrifice

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The State and the other legal persons of public law indemnify private individuals to

who, for reasons of public interest, impose charges or cause special damage and

abnormal, owing, for the calculation of the compensation, to meet, in particular, the

degree of earmarking of the substantial content of the right or an interest violated or sacrificed.