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1 PROPOSAL of law No. 160/X explanatory statement the achievement of full and effective equality in Portuguese society is a responsibility of the State which depends on more and more of the attention they pay to areas until some time don't associated with these concerns. In fact, historically, the first measures aimed at the implementation of equal treatment between men and women referred to the area of labor and employment. But this is not the only area in which discrimination occurs; also outside the labour market based on gender discrimination creates obstacles to equality and to the full integration of women and men in economic and social life. Other aspects of everyday life in which there is still an unequal treatment between men and women, the European Union that the area of access to goods and services and your supply is particularly problematic. This diagnosis has led to Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in access to goods and services and your supply. This Bill seeks to carry out the transposition of that directive at the same time that deepens the constitutional imperative of equality, particularly gender equality.
The achievement of gender equality through this Bill passes by banning discrimination, direct and indirect, on the basis of sex in the access to goods and services, being applicable to all persons, whether public or private, that provides goods and services available to the public free of charge or against payment. There will be direct discrimination where, on the basis of sex, a person is subject to less favourable treatment than that which is given to another equivalent situation. Indirect discrimination will occur whenever an apparently neutral provision, criterion or practice neutral put persons of a particular sex at a disadvantage compared with persons of the other sex, unless objectively justified by a legitimate purpose and the means to achieve it are appropriate and necessary.
2 excluded from the scope of this Bill are the goods and services offered in the framework of private and family life and the transactions carried out in that context, the content of media and advertising, the education sector, as well as the matters of employment and occupation, including the self-employed work, this exclusion in respect of contracts of insurance or other financial services determines the application of this scheme only to private services , volunteers and independent of the employment relationship or professional. This Bill prohibits in principle the use of sex as a criterion in the calculation of premiums and benefits for the purposes of insurance and other financial services in all new contracts concluded after 21 December 2007, and ensures that covers costs related to pregnancy and maternity are distributed equitably between men and women. Provides for the possibility of recourse to the judicial process, as well as alternative dispute resolution structures, leaving it to the respondent to prove that there was no breach of the principle of equal treatment. It also stipulates the protection against risks of reprisals on the victims and witnesses of discrimination based on sex, excluding application to criminal proceedings. Non-governmental organizations that contribute to the fight against discrimination on grounds of sex are recognized procedural legitimacy for collective defence of the legally protected rights and individual interests of its members, as well as for the defense of the values protected by the present proposal of the law. Are except the cases of harassment, in which only the person harassed offers procedural legitimacy in accordance with this law. The practice of any discrimination, by action or omission, gives the victim the right to compensation for damages and non patrimonial assets, by way of non-contractual liability, in general terms. Without prejudice to civil liability and other penalty that the case constitutes a misdemeanour, the practice of any discrimination by person or by a legal person governed by public or private law. In case of recidivism or of retaliation the minimum and maximum limits of the fine are high for the double. Also attempt and negligence is punishable, and the minimum and maximum limits of the fines imposed in these cases, reduced to half.
3 are declared null and void or amended the contractual provisions and rules that do not respect the principle of equal treatment in terms of this Act. Are still provided for penalties depending on the gravity of the Act of discrimination and the agent's fault, that can be applied simultaneously with the fines. The Commission for citizenship and gender equality (CIG) is the national body responsible for ensuring the promotion of equal treatment for men and women in the fields governed by this Bill and who will be responsible analysis of problems detected, by issuing opinions on the processes that will be established under this Bill and for submitting to the Government an annual report in which is mentioned the information collected on the practice of discriminatory acts and penalties imposed.
Was heard to National data protection Commission, the National Council of consumption and the Associação Portuguesa de Seguradores.
So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following proposal of law: Article 1 subject-matter this law aims to prevent and prohibit discrimination, direct and indirect, on the basis of sex in the access to goods and services and your supply and sanction the acts which result in the infringement of the principle of equal treatment for men and women. Article 2 Scope 1-this Act applies to public and private entities that provide goods and services available to the public free of charge or against payment. 2-Are deleted: 4 the) the goods and services offered in the framework of private and family life and the transactions carried out in that context; b) the content of media and advertising; (c)) the education sector; d) employment issues and occupation, including the self-employed work.
Article 3 Definitions
1-for the purposes of this law: a) ' direct discrimination ', all the situations in which, on the basis of sex, a person is subject to less favourable treatment than that which is, has been or may be given to another person in a comparable situation; b) ' indirect discrimination ', where a seemingly neutral provision, criterion or practice neutral place people of a given sex at a disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate purpose and the means to achieve it are appropriate and necessary; c) ' Harassment ', all situations where an unwanted conduct related to the sex of a person with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment; d) ' sexual harassment ', all situations in which there is an unwanted conduct of a sexual nature, in physical, verbal or non-verbal, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.
Article 4 principle of equality and prohibition of discrimination according to sex 1-it is prohibited to direct or indirect discrimination, as defined in this law, based on actions, omissions or contractual clauses under the access to goods and services and your supply. 5 2-considered to be discriminatory, in particular, the contractual clauses or practices resulting in: a) the refusal to supply or preventing the enjoyment of goods or services; (b)) the provision or enjoyment favorable goods or services; c) refusal or condition of purchase, lease or subletting of real estate; d) refusal or unfavourable access to healthcare provided in public or private establishments. 3-are also discriminatory any instructions or orders for the purpose of direct or indirect discrimination. 4-harassment and sexual harassment are considered discrimination for the purposes of this Act, not being in relief the rejection or acceptance of this type of behaviour by the persons concerned as grounds for decisions that affect them. 5-The discriminatory acts and provisions shall be deemed null and void giving rise to civil responsibility according to the damage caused. 6-does not constitute discrimination against the application of more favourable provisions for the protection of women in relation to pregnancy, puerperium and breast-feeding. 7-the guarantee of full equality between men and women shall be without prejudice to the maintenance or adoption of specific affirmative action measures intended to prevent or compensate for factual situations of inequity or disadvantage related to sex.
Article 5 protection in situation of pregnancy is forbidden to the request for information concerning the situation of pregnancy of a woman applicant for goods and services, except for reasons of protection of your health.
6 article 6 General rules of contracts of insurance and other financial services 1-consideration of sex as a factor in the calculation of premiums and benefits of insurance and other financial services can result in premiums and benefits differentiations. 2-Notwithstanding the previous paragraph, are nevertheless admitted differentiations in individual insurance premiums and benefits and other financial services when offered and resulting from a risk assessment based on actuarial and statistical data relevant and rigorous. 3-The actuarial and statistical data are considered relevant and rigorous to the effect provided for in the preceding paragraph when obtained and drawn up in accordance with regulatory standard issued for this purpose by the Instituto de Seguros de Portugal. 4-the admissibility of the arrangements laid down in paragraph 2 shall be 5 years after the update your entry into force.
Article 7 Covers pregnancy and maternity costs related to pregnancy and maternity cannot result in differentiation of premiums and benefits of insurance contracts and other financial services.
Article 8 means of defence Without prejudice to recourse to the Court, the parties may submit the resolution of disputes arising out of this law alternative dispute resolution structures.
7 article 9 burden of proof 1-it's up to those who claim to have been aggrieved by an act of direct or indirect discrimination present the facts constituting the same, leaving it to the respondent to prove that there was no breach of the principle of equal treatment. 2-In case of retaliation, the victim only has to present the facts constituting the form of treatment or adverse consequence as well as indicate what the complaint or judicial procedure carried out to require compliance with the principle of equality, leaving it to the respondent to prove that there is no causal link between each other. 3-the preceding paragraphs shall not apply to criminal proceedings.
Article 10 Liability 1-the practice of any discrimination, by action or omission, gives the victim the right to compensation for damages and non patrimonial assets, by way of non-contractual liability, in general terms. 2-in the setting of compensation the Court shall take into account the degree of violation of the interests involved, the economic power of the authors of the illicit and the conditions of the person targeted by the discriminatory practice. 3-in contracts that contain discriminatory clauses, the injured Contracting Party has the right to amend the agreement so that the contractual rights and obligations are equivalent to those of sex more benefited. 4-the effective alteration of the contract referred to in the preceding paragraph shall not preclude compensation for non-contractual liability. 5-The sentencing handed down in civil liability are published, after transit, at the expense of those responsible, in a daily publications of largest circulation in the country, by extract, which should contain only the facts proving the discriminatory practice, the identity of the offended and the damned and the compensation fixed. 8 6-the publication of the identities of the offense depends on the express consent of those expressed by the end of the trial hearing. 7-the publication takes place within five days of notification.
Article 11 procedural rights of associations and non-governmental organizations
1-recognized associations and non-governmental organizations whose statutory object is intended essentially to promote the values of citizenship, human rights, women's rights, gender equality and protection of consumer rights procedural legitimacy for the protection of collective rights and interests and for the collective defence of the legally protected rights and individual interests of its members as well as for the defense of the values protected by this law. 2-In case of harassment, only the person harassed offers procedural legitimacy in terms of this law. 3-the collective defence of individual rights and interests legally protected as provided for in paragraph 1 may not involve limiting the autonomy of individual members.
Article 12 administrative offences 1-the practice of any discrimination by natural person as prohibited by paragraphs 1 to 4 of article 4, as well as the violation of the provisions of articles 5 and 6, constitutes a misdemeanour punishable by a graduated fine between five and ten times the amount of the minimum monthly wage, without prejudice to civil liability and other penalty that the case fits. 2-the practice of any discrimination by legal person governed by public or private law, such as prohibited by paragraphs 1 to 4 of article 4, as well as the violation of the provisions of articles 5 and 6, is a misdemeanour punishable with fine graduated between 20:30 times the value of the minimum monthly wage, without prejudice to civil liability and other penalty that the case fits. 9 3-In case of recurrence or of retaliation the minimum and maximum limits of the fine are high for the double. 4-the trial and the negligence is punishable, and the minimum and maximum limits of fines applied reduced to half. 5-where the alleged infringement resulting from the omission of a duty, the application of the penalty and the payment of the fine does not exempt the offender from your compliance with, if this is still possible.
Article 13 penalties 1-depending on the seriousness of the Act of discrimination and the agent's fault, can be applied simultaneously with the fines, the following penalties: the) loss of objects belonging to the agent; b) Prohibition of the exercise of professions or activities that depend on public or title of authorization or approval of a public authority; c) ineligibility the allowance or benefit granted by entities or public services; d) ineligibility to participate in arrematações or tenders which have as their object the provision of public goods or services and the granting of licences or permits; and suspension) of permits, licences or permits; f) Closure of establishment whose operation is subject to authorisation or license of administrative authority; g) Advertising the penalty decision; and h) warning or public censure to the authors of the Act discriminatory. 2-The sanctions referred to in paragraph 1 (b)) f) above have the maximum duration of two years from the final penalty decision.
10 article 14 procedure 1-the arraignment of alleged infringement by the conduct or omissions referred to in article 12, it shall be the responsibility of the administrative units whose duties relate to the subject matter of the offence. 2-Without prejudice to paragraph 2 of article 20, is sent a copy of the process has already instructed the Commission for citizenship and gender equality, together with its final report.
Article 15 Application of fines the definition of the measure and the application of fines and penalties, in the context of the procedures referred to in article contra-ordenacionais above, under administrative authorities whose responsibilities relate to the subject matter of the offence.
Article 16 product of the fines the proceeds of fines is assigned as follows: 60% for the State); b) 30% for the administrative entity that instructs the violation process and applies its fine; c) 10% to the Commission for citizenship and gender equality.
Article 17 Registration 1-administrative entities with competence to impose fines under this law and the courts shall notify all decisions regarding discriminatory practices, the Commission for citizenship and gender equality (CIG), which hosts a register of same. 11 2-the creation and maintenance of registration referred to in paragraph 1 must comply with the procedural rules and data protection, and is subject to the prior opinion of the National Commission of data protection. 3-the entities referred to in paragraph 1 may request, in the course of any process based on breach of the prohibition of discrimination pursuant to this law, the IGC about the existence of any final decision relating to the entity concerned. 4-the provision of the information referred to in the preceding paragraph to the applicants should take place within 10 days.
Article 18 offences 1 contest-If the same fact constituting simultaneously a misdemeanour criminal and illicit, the agent is always punished under criminal law. 2-the sanctions applied to breaches in competition are always cumulated materially.
Article 19 conflicts of jurisdiction The positive or negative conflicts of jurisdiction are decided by the Member of the Government that has your position the area of equality and others under whose power steering, supervision or guardianship are organisations involved in generating the conflict situation.
Article 20 Monitoring 1-the Commission for citizenship and gender equality (CIG) monitor the implementation of this law. 2-the IGC issues opinion on the proceedings under this law whenever requested. 12 3-competes to the IGC to present to the Government an annual report in which is mentioned the information collected about the practice of discriminatory acts and penalties imposed. 4-the annual report, referred to in the preceding paragraph, is disclosed in the official site of the IGC.
Article 21 supplementary law to the provisions of this law shall apply, in the alternative, the General system of administrative offences.
Article 22 entry into force 1-the provisions of article 6 shall enter into force on 21 December 2007. 2-the provisions of article 7 shall enter into force on 1 December 2009.
Seen and approved by the Council of Ministers of 13 September 2007 Prime Minister the Minister of Parliamentary Affairs Minister Presidency
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