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DRAFT LAW NO. 384 (PS)

Regime of professional public associations

Exhibition of Motives

In a complex society and grown increasingly marked by social pluralism, the

phenomena of professional self-regulation acquire renewed vigour. To the State matters

facilitate such self-regulation, honoring the logic of administrative decentralization that

promana of the Constitution of the Portuguese Republic (cfr., specifically, art. 267, para.

4).

One of the most visible manifestations of that phenomenon has been the creation of numerous

professional public associations that in recent years have come together to join the classics

professional orders arising in the years 20 and 30 of the last century, in the context of the

"corporate regime", then re-converted in the wake of the establishment of the scheme

democratic. The pressure towards the creation of grassroots public associations

professional stay elevated, attending to the repeated public outreach of the

pretension of various professional groups in the sense of the institution of new associations

professionals subjected to a status of public law.

The establishment of the public basic public associations has not obeyed the criteria,

transparent or precise principles or rules, much less consistent, since

there is no legal framework that defines the fundamental aspects of the process, form and

material parameters to which to obey this creation. It is certainly about a

undesirable situation, as the establishment of professional public associations

involves a delicate balance and practical concordance between the public interest that

must be underlying, the fundamental rights of many citizens and the interest

collective of the profession concerned.

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Existing already numerous professional public associations, some of which with

consolidated statutes over many decades, there is that not to disturb your

health. However, in relation to the associations that from this time they should

be created care to avoid unruly proliferation and the banalization of the same as

simple means of advocacy and promotion of professional interests. On the other hand, it must be

define the balises of control by the State of the fulfilment of interests

public entrusted to these associations, and the protection of fundamental rights that

eventually may be affected by their functioning ensuring,

specifically, the respect of a set of rules and principles with seat

constitutional and specific projection specifically in training and operation

of these associations.

The principles of necessity-with projection either in the creation of the association itself,

either in the prediction of its assignments-, the principle of specialty-with relief in

delimitation of the powers of professional public entities-, or the principle

democratic-with incidence in the organization and the formation of the collective will,

constitute qualified examples of the constitutional projection in the necessary regime

framing the creation of the professional public associations.

A framework law of the creation of the professional public associations constitutes

one step further in the deepening of democracy and administrative decentralization,

under the aegis of an autonomous administration attuned to the imperatives of

public interest that, as a public administration that is also, it will be up to you to continue.

They are key ideas of this framework law:

a) Establish the substantive and procedural requirements of the creation of new

professional associations of public law;

b) To ensure the essential requirements of your internal democratic organisation, second

the principles of representative democracy;

c) Ensure the exercise of the professional supervision function, including the function

discipline, by a body endowed with conditions of independence within the associations;

d) Acautelate the taking into account of the interests of professional service users.

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Thus, the Deputies of the Socialist Party present the following bill:

CHAPTER I

GENERAL PROVISIONS

Article 1º

(Subject)

1. The present diploma establishes the legal regime of the creation, the organization and the

operation of new professional public associations.

2. The present diploma applies only to professional public associations which

are created after their entry into force.

Article 2º

(Definition)

1. For the purposes of this diploma consider professional public associations as

public entities of associative structure representative of professions that

they should, cumulatively, be subject to the control of the respective access and

exercise, to the elaboration of specific technical and deontological standards and to a

autonomous disciplinary regime.

2. The constitution of professional public associations is exceptional and aims at

satisfaction of specific needs, and may only take place in cases

provided for in the preceding paragraph, when the regulation of the profession involves a

public interest of special relief that the State Administration should not

proceed on its own.

3. The creation of new professional public associations is always preceded by a

study drawn up by entity of recognized independence and merit on the

your need in terms of the realization of the public interest and about your

impact on the regulation of the profession concerned.

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Article 3.

(Nature and legal regime)

1. Professional public associations are legal persons of public law and

are subject to a public law regime in the performance of their tasks

public.

2. In all that is not regulated in this degree and in the respective law of creation,

as well as in their statutes, they are subsidarily applicable to the associations

public professionals, with the necessary adaptations, the standards and principles that

governing public institutes, with respect to their assignments and the exercise of the

public powers enjoyed by them, and the norms and principles governing the

associations of private law, with respect to their internal organisation,

respectively.

Article 4º

(Attributions)

1) Are assignments of the professional public associations, under the law:

a) the representation and defence of the general interests of the profession;

b) the regulation of access and exercise of the profession;

c) the elaboration and updating of the professional register;

d) the exercise of disciplinary power over its members;

e) the provision of services to its members, in respect of the financial year

professional, specifically in relation to information and vocational training;

f) The collaboration with the Public Administration in the pursuit of purposes of interest

public related to the profession;

g) Participation in the drafting of the legislation that concerns the respective

professions;

h) The participation in the official processes of accreditation and evaluation of the courses that

give access to the profession;

i) Any others that are committed to them by law.

2) Professional public associations are prevented from exercising or participating

in activities of a trade union nature or that have to do with the regulation of the

economic or professional relations of its members.

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3) Professional public associations can not establish restrictions on freedom

of profession that are not provided for in the law, nor infringes the rules of the

competition in the provision of professional services, under national law and

of the European Union.

4) Ressalvado the deontological code, professional public associations cannot

to deliberate on the legal regime of the profession nor on the requirements and restrictions

to the exercise of the profession.

Article 5º

(Principle of specialty)

1. Without prejudice to the observance of the principle of legality in the field of management

public, and unless expressly provided otherwise, the legal capacity of the

public associations covers the practice of all legal acts, the enjoyment of

all rights and the subjection to all obligations necessary to pursue the

its object.

2. Professional public associations may not engage in activities or use

your powers outside of your assignments nor dedicate your resources to

various purposes of those that have been legally committed to them.

Article 6º

(Creation)

1. Professional public associations are created by law, heard the associations

representative of the profession.

2. The law of creation of each professional public association shall in the preamble

duly justify the need for its creation, pursuant to Article 2º,

as well as the options that in them have been taken.

3. The law of creation defines the essential aspects of its regime, namely:

a) Denomination;

b) Profession covered;

c) Attributions.

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4. Professional public associations are created by indefinite time and only

may be extinguished, fused or fcinded on the same terms as provided for in

your creation.

Article 7º

(Statutes)

1. When they are not approved by the association's law of creation, the statutes are

approved by decree-law, in the respect of this Law and the law of creation of the

association.

2. The bylaws of professional public associations shall regulate the following

subjects:

(a) scope;

(b) Acquisition and loss of the quality of member;

(c) species of members;

d) Rights and duties of the members;

e) internal organisation and competence of the organs;

f) Incompatibilities in the case of the exercise of the associative ones;

g) Elections and their electoral process;

h) Professional deontology;

i) Professional internships;

j) disciplinary procedure and their penalties;

k) Economic and financial regime, in particular relating to fixation, collection

and allocation of quotas;

l) Colleges of specialties, if any.

3. Statutes may recognize the professional public associations the power of

initiative for proposals of its modification, being however always approved in the

terms of paragraph 1.

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Article 8º

(Administrative Autonomy)

1. In the exercise of its public powers the professional public associations

practicing the administrative acts necessary for the performance of their duties and

pass the regulations provided for in the Act and in the statute.

2. RThessaloniki the cases provided for in the law, the acts and regulations of the associations

public professionals are not subject to government approval.

Article 9º

(Autonomy and financial autonomy)

1. Professional public associations dispose of own heritage and finance

own, as well as budgetary autonomy.

2. Financial autonomy includes the power to set the value of the monthly or annual quota of the

its members, as well as the fees for the services provided, under the law.

Article 10º

(Denomination of "Order")

1. Professional public associations have the denomination of "order" when

correspond to occupations whose exercise is conditional on the prior obtaining of

an academic habilitation of licentiate or equivalent and " chamber

professional " in the contrary case.

2. The assignments of "order", and of "professional chamber" as well as of " college

professional " can only be used by the professional public associations or

their organisms, respectively.

Article 11º

(Cooperation with other entities)

1. Professional public associations may constitute associations of law

private and other forms of cooperation with related entities, national or

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foreign, especially the scope of the European Union and the Community of

Portuguese Language Countries.

2. For the better performance of your assignments public associations

professionals can establish cooperation agreements with other entities

public or private, re-salvaged the entities of a union or political nature.

CHAPTER II

INTERNAL ORGANIZATION

Article 12º

(Geographical scope)

1. Professional public associations have a national scope.

2. Without prejudice to the provisions of the preceding paragraph, public associations

professionals can understand regional and local structures, whose

territorial constituencies must correspond to the administrative division of the

territory, to which it is incumbent on the pursuit of its tasks in the respective

area, in the terms of the statutes.

3. If they exist, the status of each professional association specifies which ones

regional and local delegations in which they structure, as well as their organization and

competencies.

Article 13º

(Colleges of specialty)

1. Where the law provides for the existence of professional specialisations, the

corresponding professional public associations can organize themselves

internally in specialty colleges.

2. The bylaws establish the organization and competences of the colleges of

specialty.

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Article 14º

(Democratic formation of the organs)

1. Professional public associations dispose of own organs, including

necessarily a representative assembly elected by universal suffrage,

direct, secret and periodical.

2. Any effective member with the enrollment in force and in the full exercise of the

your rights can vote and be elected to the organs of the respective association.

3. Statutes may condition eligibility for the office of the president, of

bastonary or member of the organ with disciplinary competence for the verification of

a minimum time of exercise of the profession, never exceeding ten years.

4. The organs of the public associations shall not be subject to type-approval

government.

Article 15º

(Organs)

1. Professional public associations observe the principle of separation of

powers, being his necessary organs:

a) A representative assembly, with general deliberative powers,

particularly in relation to the approval of the budget and the plan of

activities, of draft amendments to the bylaws, approval of

regulations, quotas and fees, establishment of colleges of

specialties, or of concluding protocols with associations

counterparts;

b) a collegial executive body, which exercises powers of direction and of

management, particularly in administrative and financial matters, as well as

in the regard to the external representation of the interests of the association;

c) a supervisory body, which candles for the legality of the activity carried out

by the organs of the association and exercises powers of control, inter alia

in disciplinary matters;

d) An audit body of the management and financial management, which includes

an official reviewer of accounts.

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2. The bylaws of professional public associations may provide for the existence of

a president or bastonary, as the chairman of the executive body or as

autonomous body, with own competences, specifically of representation

external of the association.

3. Statutes may further provide for the existence of other organs, specifically

broadened meetings, in congress, to deliberate on issues of character

general, as well as technical and advisory bodies.

4. The mandates of the holders of the bodies of the professional public associations shall not

may be higher than three years, being renewable for two times.

5. The denomination of the organs is freely chosen by the status of each

professional public association, resourced the designation of "bastonary", which is

deprivative of the president of the orders.

6. The assembly is elected by universal suffrage and by the system of representation

proportional, in the territorial circles defined in the statutes, and may however

include a representation of regional structures, if they exist.

7. When directly elected, the President or bastonary is elected on the terms

provided for in the Constitution for the election of the President of the Republic with the

necessary adaptations.

8. The supervisory body shall be independent in the performance of its duties,

elected by a majority qualified by the representative assembly and may include

strange elements to the profession, up to 1/3 of its composition.

9. Regional and local delegations, when they exist, have as mandatory bodies

the assembly of the members enrolled in the respective territorial circumscription and a

executive body by that elected.

10. Permanent executive positions may be remunerated, pursuant to the

statutes or regulation of the association.

Article 16º

(Regulatory power)

1. The regulations of professional public associations link all of their

members and, as well, the candidates for the exercise of the profession.

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2. The drafting of the Regulations follows the procedure laid down in the Code of

Administrative Procedure, including with respect to the public consultation and the

participation of the stakeholders, with due adaptations.

3. The external effectiveness regulations of public professional associations are

published in the II series of the Journal of the Republic , without prejudice to its publication

in the official journal of the association

Article 17º

(disciplinary power)

1. Professional public associations exert disciplinary action on their

members, under the terms of their respective statutes.

2. The bylaws of each professional public association enunciate the facts that

constitute disciplinary infringement as well as the applicable disciplinary sanctions.

3. The disciplinary sanctions for suspension and expulsion of the public association

professional are only applicable to the serious offences practised in the financial year

of the profession, may not have a origin in the default of the duty to pay

quotas or any other duty of member of pecuniary nature.

4. The disciplinary penalty of expulsion shall apply when, taking into account the nature of the

occupation, the disciplinary offence has put a cause to life, integrity

physics of persons or is gravely lesive of honour or of the alheiery heritage

or of equivalent values.

5. The exercise of the disciplinary functions of professional public associations

competes, at least in the last instance, to the body provided for in paragraph 1 (c),

of art. 15.

6. In all that is not regulated in the statute of each public association

professional or, when there is, in the respective disciplinary regulation, they are

applicable provisions of the Disciplinary Staff Regulations of Employees and Agents of the

Central, Regional and Local Administration.

7. They can trigger the disciplinary procedure:

a) The governing bodies of the association;

b) the provider of the users, when it exists;

c) The Public Prosecutor's Office.

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Article 18º

(Provider of users)

1. Professional public associations can designate a personality

independent with the function of defending the users of the professional services of the

members of those.

2. The provider of the users shall be designated in the terms provided for in the bylaws, cannot

be a member of the professional association and cannot be impeached, save for lack

serious in the exercise of their duties.

3. Compete to the provider analyze the complaints made by users and make

recommendations both for the resolution of these complaints and in general for the

improvement of the performance of the association.

4. The post of provider is remunerated, under the terms of the statutes or regulation

of the association.

Article 19º

(Incompatibilities in the exercise of functions)

1. The exercise of the executive, disciplinary and supervisory functions in organs of the

professional public associations is incompatible with each other.

2. The post of organ holder of the professional public associations is incompatible

with the exercise of any leadership roles in the civil service and with

any other function with which to verify a manifest conflict of

interests.

3. The rule provided for in the first part of the preceding paragraph may be

exceptionally derogated from the statutes, when reason of special interest

public the display.

Article 20º

(Internal Referendum)

1. The bylaws of professional public associations may provide for submission to

referendum, with a binding or consultative character, by deliberation of the

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representational assembly, on issues of particular relevance to the

association that fall in the respective assignments.

2. They are compulsorily subjected to internal referendum the proposals for dissolution

of the association.

3. Statutes of each professional public association may specify other

issues to be mandatorily submitted to the internal referendum.

4. The holding of referendums is mandatorily preceded by the verification of its

legal or statutory compliance by the supervisory body provided for in the art. 15.,

n. 1 (c).

CAPITCHAPTER III

Members

Article 21º

(Inscription)

1. The exercise in liberal profession of organized profession in public association

professional is conditional on prior enrollment, unless different arrangements are

established in the law of creation, and the law may extend the obligation to sign up to

all professionals, or impose at least one universal obligation to register

professional.

2. The requirements of which is dependent on enrolment in professional public association are

taxactively defined by the law of creation of the association or by the law of

regulation of the profession, with respect for the following principles:

a) Existence of an habilitation, professional or curricular, officially

recognized, required by law for the exercise of the profession;

b) Eventually, verification of professional capacities by the subjection to

stage or the probationary period;

c) Training and verification of the knowledge relating to the code

deontological of the profession.

3. In no case will there be numerus clausus on access to the profession, nor examination of

entry into the profession, nor accreditation, by the professional associations, of courses

officially recognized.

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Article 22º

(Right of enrollment)

1. They are entitled to register in the professional public associations all those who

they fulfil the legal requirements for the exercise of the profession and wish to exercise,

in liberal regime or not.

2. In case of professional interdiction, automatically cesses the inscription on the

professional public association.

3. You can register with the professional public associations the nationals of others

Member States of the European Union who are holders of the qualifications

academics and practitioners legally required for the exercise of the profession

in the respective State of origin.

4. They may still register for nationals of other States, under conditions of

reciprocity, provided that they obtain the equiparation of their diploma pursuant to the

legislation in force.

Article 23º

(Rights of the members)

They are rights of the members:

a) Eleger the organs of the association and apply for the elections, re-salvaged the

inelegibilities established in law and statutes;

b) Participate in the activities of the association;

(c) to benefit from the services provided by the association, without any

discrimination.

d) Others provided for in law and in the statute.

Article 24º

(Duties of members)

They are duties of the members:

a) Participate in the life of the association;

b) Paying the quotas;

c) To contribute to the prestige of the association;

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d) The remaining legal and statutory duties.

CHAPTER IV

LABOUR, FINANCIAL AND TAX REGIME

Article 25º

(Staff)

The employees of the professional public associations are governed by the legal regime

of the individual contract of employment, without prejudice to a recruitment procedure

identical to that provided for in the employment contract scheme in the Public Administration.

Article 26º

(Budget and financial management)

1. Professional public associations have own budget, proposed by the

executive body and approved by the representative assembly.

2. The finances of public associations are subject to the rules of equilibrium

budget and limitation of indebtedness established in a diploma of their own.

3. Professional public associations are subject to the rules of contracting

public and to the scheme of public works.

4. Professional public associations are subject to the official plan of

public accounting.

5. The State does not guarantee the financial responsibilities of public associations

professionals nor is responsible for their debts.

Article 27º

(Recipes)

1. Are revenue from the professional public associations:

a) the quotas of its members;

b) The fees charged for the provision of services;

c) the incomes of the respective heritage;

d) Heritages, legacies and donations;

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e) Other revenue provided for in the law and in the statutes.

2. The State can only finance professional public associations when it is treated

of the counterpart of specific tasks agreed upon by protocol not

understood in their legal incumbents.

3. The deliberations on the setting of the quotas and the fees shall be approved by the

representative assembly, by an absolute majority, on a proposal from the body

executive, and on the basis of a study that fuses properly the amounts

proposed, observed the substantive requirements set out in the general law on the

fees and other contributions from the public administration.

4. The collection of the credits resulting from the revenue provided for in the als. a) and (b) of paragraph 1

follows the process of tax enforcement.

Article 28º

(Services)

1. Public professional associations will institute the operational and technical services

necessary for the performance of your assignments, without prejudice to the faculty of

externalization of tasks.

2. Professional public associations can establish cooperation agreements with

the inspection services of the public administration for the performance of the task of

monitoring of the performance of professional duties by its members.

CHAPTER V

TUTELAGE, JUDICIAL CONTROL AND ACCOUNTABILITY

Article 29º

(Administrative Tutela)

1. Professional public associations are not subject to oversight

government nor the tutelage of merit, resalvaged, as to this, the cases

specially provided for in the law.

2. Professional public associations are subject to tutelage of legality

identical to that exercised by the Government on the Territorial Autonomous Administration.

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3. The establishment diploma establishes which member of the Government who exercises the

tutelage powers over each professional public association.

4. Ressalved the provisions of the following number, the administrative tutelage on the

professional public associations is of a inspective nature.

5. Cart approval tutelar, which considers itself given if there is no decision in

contrary in the following 90 days, the regulations that versem on the stages

professionals and professional proofs of access to the profession, the quotas and fees

associative and professional specialties.

6. It shall apply to professional public associations, with the necessary adaptations,

the provisions of Law No. 27/96 of August 1.

Article 30º

(Judicial control)

1. The decisions of professional public associations practiced in the exercise of

public powers are subject to administrative litigation, in the terms of the

laws of the administrative procedure.

2. They may challenge the legality of the acts and regulations of the public associations

professionals:

a. Those concerned, pursuant to the laws of the administrative procedure;

b. The Public Ministry;

c. The minister of tutelage;

d. The Provider of Users.

Article 31º

(Surveillance by the Court of Auditors)

Professional public associations are subject to the jurisdiction of the Court of Auditors,

on the terms set out in the organic law of this.

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Article 32º

(Annual report and information duties)

1. Professional public associations annually draw up a report on the

performance of your assignments, which will be present to the Government and the Assembly

of the Republic.

2. Professional public associations provide the Assembly of the Republic and the

Government all the information that is requested from them regarding the exercise

of your assignments.

3. The bastonaries and the chairpersons of the executive bodies shall correspond to the

request from the relevant parliamentary committees to provide the information

and clarifications that these will require.

Article 33º

(Criminal Procedure)

Professional public associations may constitute assistants in the processes

prosecutions related to the exercise of the profession they represent or with the

performance of posts in your organs, save when dealing with facts that involve

disciplinary responsibility.

CAPITCHAPTER VI

INSTALLATION

Article 34º

(Installers commissions)

1. Until the taking of possession of the organs of the new professional public associations

created under the terms of this diploma, the respective statutes must provide for the

maximum period of one year, the existence of installatory commissions, to which

it is incumbent on the practice of the acts necessary for the election of the representative assembly and

to the definitive installation of those organs.

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2. The installers commissions are composed of three members, being one of them the

President, all appointed by the Government, listened to the professional associations

interested.

CHAPTER VII

FINAL PROVISIONS

Article 35º

(optional application)

1) By decision taken by its competent body, the professional associations

existing public may request the Government for submission to the scheme provided for in the

present law.

2) The application must be accompanied by the draft of new statutes.

3) The publication of the new statutes implies the expiry of the pre-existing by-laws.

Article 36º

(Entry into force)

This diploma comes into force 30 days after its publication.

A.R. May 22, 2007

The Deputies