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1 DRAFT law No. 384 (PS) public associations Professionals Scheme explanatory memorandum in a complex society and increasingly marked by social pluralism, the professional self-regulatory phenomena acquire renewed vigour. The State matters facilitate the self-regulation, honoring the logic of administrative decentralization that gives rise to the Constitution of the Portuguese Republic (cfr. specifically, article 267, paragraph 4).
One of the most visible manifestations of this phenomenon has been the creation of numerous public associations professionals in recent years if new additions to the classic professional bodies in the years 20:30 of the last century, in the context of the "corporate regime", then converted following the establishment of the democratic regime. The pressure towards the creation of public associations of professional base remains high, the public disclosure of claim of repeated various professional groups in the direction of the new institution professional associations subject to public law status.
The creation of public associations of professional base has not obeyed the criteria, principles or rules transparent or accurate, much less consistent, since there is a legal framework that defines the fundamental aspects of the process, form and material parameters that must obey this creation. This is certainly an undesirable situation, since the creation of public associations professionals involves a delicate balance and compliance practice among the public interest should be underlying, fundamental rights of many citizens and the collective interest of the profession in question. 2 there are already numerous public professional associations, some of which with consolidated statutes over many decades, we should not disrupt its operation. However, in relation to associations from this moment should be created matter avoid unregulated proliferation and the trivialization of the same as a simple means of Defense and promotion of professional interests. On the other hand, one should define the goals of the State supervision of compliance with the public interests entrusted to these associations, and the protection of fundamental rights which may be affected by its operation ensuring, inter alia, the respect of a set of rules and principles with constitutional and in particular specific seat in the formation and functioning of these associations.
The principles of necessity – both in projection own creation of the association either in anticipation of its mission – the principle of specialty – with emphasis on delimitation of the powers of public bodies or professionals – the principle of democracy-with incidence in the Organization and training of the collective will, qualified examples of necessary constitutional regime defines projection of creation of public associations professionals.
A framework law for the creation of public associations is a step more professionals in deepening democracy and decentralization, under the aegis of self-administration in tune with the imperatives of public interest, such as public administration, is also proceeding.
Are the fundamental ideas of this framework law: a) Establish the substantive and procedural requirements of the creation of new professional association governed by public law; b) Ensure the essential requirements of its internal democratic organization, in accordance with the principles of representative democracy; c) Ensure the exercise of the function of professional supervision, including the disciplinary function, by a body endowed with conditions of independence within the associations; d) Beware taking into account the interests of users of professional services.
3 thus, the Deputies of the Socialist Party feature the following Bill: chapter I GENERAL PROVISIONS article 1 (subject matter) 1. This Decree-Law establishes the legal regime of the creation, organisation and functioning of new public associations professionals. 2. The present law applies only to public associations professionals that are created after their entry into force.
Article 2 (definition) 1. For the purposes of this decree-law shall be considered public associations professionals public authorities of associative structure representing professions which have, cumulatively, be subject to review by the respective access and exercise, the elaboration of specific technical requirements and conduct and a disciplinary regime. 2. The establishment of public associations is exceptional professionals and aims to satisfy specific needs and may only take place in the cases provided for in the preceding paragraph, when the regulation of the profession involved a public interest of particular note that the administration of the State should not proceed on its own. 3. The creation of new public associations professionals is always preceded by a study prepared by recognized independence and merit entity about its necessity in terms of the public interest and on its impact on regulation of the profession in question.
4 Article 3 (nature and legal system) 1. Public professional associations are legal persons governed by public law and are subject to a system of public law in the performance of their public tasks. 2. In everything that is not regulated in this Decree and in the law of creation, as well as in their statutes, subsidiarily applicable to public associations professionals, with the necessary adaptations, the rules and principles governing public establishments, with regard to their duties and the exercise of public powers that enjoy, and the norms and principles governing private law associations as regards its internal organisation, respectively.
Article 4 (Responsibilities) 1) are assignments of public associations in accordance with law professionals: a) the representation and defence of the general interests of the profession; b) Regulation of access to and exercise of the profession; c) the development and updating of the register; d) the exercise of disciplinary authority over its members; and) the provision of services to its members, in relation to the professional practice, particularly in relation to information and vocational training; f) collaboration with the Government in pursuing public interest purposes related to the profession; g) participation in the preparation of legislation relating to their professions; h) participation in the official processes of accreditation and evaluation of courses that give access to the profession; I) Any others that are committed to them by law. 2) public associations are restricted from exercise or engage in trade union activities or having to do with the regulation of the economic or professional relations of its members. 5 3) public associations professionals cannot establish restrictions on the freedom of profession that are not provided for in law or infringing the rules of competition in the provision of professional services, in accordance with national law and the European Union. 4) except for the code of ethics, public professional associations may not deliberate on the legal framework of the profession or the requirements and restrictions on the practice of the profession.
Article 5 (principle of specialty) 1. Without prejudice to the observance of the principle of legality in the field of public administration, and unless expressly provided otherwise, the legal capacity of the public associations includes the practice of all legal acts, the enjoyment of all rights and subject to all obligations necessary for the attainment of its objects. 2. The public associations may not engage in professional activities or use their powers outside its powers nor to devote its resources to purposes other than those for which they have been legally committed.
Article 6 (creation) 1. Public professional associations are created by law, after hearing the representative associations of the profession. 2. The law of creation of each public association professional should the preamble to justify adequately the need for its establishment, in accordance with article 2, as well as the options on them were taken. 3. The law of creation sets the essential aspects of his regime, including: a) designation; b) profession concerned; c) assignments. 6 4. Public professional associations are created for indefinite time and only be extinguished, merged or de-merged in the same terms provided for its creation.
Article 7 (statutes)
1. When are not approved by the law of creation of the Association, the statutes are approved by decree-law, in respect of this law and the law of creation of the Association. 2. The statutes of public associations professionals must regulate the following matters: a) Framework; b) acquisition and loss of membership; c) species of members; d) rights and duties of members; and) internal organisation and competence of bodies; f) Incompatibilities as regards exercise of expensive associative; g) Elections and the electoral process; h) professional ethics; I) professional internships; j) disciplinary proceedings and their feathers; k) economic and financial Regime, in particular concerning the establishment, collection and allocation of quotas; l) specialty Schools, if any. 3. The statutes may recognize public professional associations the power of initiative proposals of modification, being however always adopted pursuant to paragraph 1.
7 article 8 (administrative autonomy) 1. In the exercise of its public powers the public associations professionals practise the administrative acts necessary for the performance of its functions, and approve the regulations provided for in the law and the statutes. 2. Except for the cases provided by law, the acts and regulations of professional public associations are not subject to Government approval.
Article 9 (Financial Autonomy) 1. The public associations have their own heritage professionals and finance themselves, as well as budgetary autonomy. 2. financial autonomy includes the power to fix the value of the monthly or annual quota of its members, as well as fees for services rendered, in accordance with the law.
Article 10 ("Order") 1. The public associations professionals have the title of "order" when match professions whose exercise is conditional upon the attainment of a Bachelor's degree or equivalent academic qualification and professional camera "on otherwise. 2. The designations of "order", and "professional camera" as well as "professional school" can only be used by the public associations professionals or their bodies, respectively.
Article 11 (cooperation with other entities) 1. Public professional associations may constitute private law associations and other forms of cooperation with related entities, national or foreign, especially 8 the scope of the European Union and the community of Portuguese Language countries. 2. For best performance of its tasks the public associations professionals may establish co-operation agreements with other public or private entities, except where the nature of association or political entities.
CHAPTER II INTERNAL ORGANISATION article 12 (geographic scope) 1. The public associations have professionals nationwide. 2. Without prejudice to the provisions of the preceding paragraph, the public associations professionals can understand regional and local structures, whose territorial constituencies must correspond to the administrative division of the territory, which it is for the pursuit of its mission in the area, in accordance with the statutes. 3. If applicable, the status of each Professional Association specifies which local and regional delegations in that structure, as well as its organization and competencies.
Article 13 (Specialty Colleges) 1. Where the law provides for the existence of professional specializations, the public associations corresponding professionals can organize themselves internally in specialty colleges. 2. The statutes shall lay down the organisation and powers of the specialty colleges.
9 article 14 (democratic organ Formation) 1. Public professional associations have their own organs, including necessarily a representative Assembly elected by direct universal suffrage, secret and periodic. 2. Any member with the inscription in force and in full exercise of their rights to vote and be elected to the organs of their association. 3. The statutes may condition eligibility for the post of President, Chairman or member of the governing body with disciplinary powers to check for a minimum time of practice of the profession, not more than ten years. 4. The organs of public associations are not subject to Government approval.
Article 15 (Organs) 1. Public professional associations they observe the principle of the separation of powers, and its organs required: a) A representative Assembly, with deliberative powers, in particular with regard to general approval of the budget and the business plan, draft amendments of the statutes, regulations, approval of quotas and fees, of creating specialty colleges, or to conclude protocols with similar associations; b) an executive body, which exercises powers of management and administration, particularly in administrative and financial matters, as well as regarding the external representation of the interests of the Association; c) A supervisory organ, which watch over legality of the activity carried out by the organs of the Association and shall exercise powers of inspection, particularly in disciplinary matters; d) A supervisory organ of financial management, which includes a statutory auditor. 10 2. The statutes of public associations professionals can predict the existence of a President or Chairman, as Chairman of the executive body or as autonomous body with its own powers, in particular the external representation of the Association. 3. The statutes may provide for even the existence of other organs, including extended meetings, in Congress, to deliberate on matters of a general nature, as well as advisory and technical bodies. 4. The mandates of the holders of the organs of public professional associations cannot be more than three years, and renewable for two times. 5. The name of the organs is freely chosen by each professional public association status, except for the designation of "Chairman", who is President of the private orders. 6. the Assembly is elected by universal suffrage and proportional representation system, territorial circles defined in the statutes, which may however include a representation of regional structures, if they exist. 7. When directly elected, the President or Chairman is elected pursuant to the Constitution for election of the President of the Republic with the necessary adaptations. 8. The supervisory body is independent in the performance of their duties, being elected by qualified majority by the representative Assembly and which may include foreign elements to the occupation, until 1/3 of its composition. 9. regional and local delegations, where they exist, are mandatory organs the Assembly of members enrolled in its territorial division and an Executive for the one elected. 10. The permanent executive positions may be paid, in accordance with the statutes or regulations of the Association.
Article 16 (regulatory power) 1. Public professional associations regulations are binding on all its members and candidates to the profession. 11 2. The regulations follow the procedure laid down in the code of administrative procedure, including with regard to public consultation and the participation of interested, mutatis mutandis. 3. The external effectiveness of the public associations shall be published in the second series of the Diário da República, without prejudice of its publication in the official journal of the Association article 17 (disciplinary authority) 1. Public professional associations carry out disciplinary action over its members, in accordance with their respective statutes. 2. The statutes of each professional public association set out the facts that constitute disciplinary offence as well as disciplinary penalties applicable. 3. disciplinary sanctions of suspension and expulsion from the professional public association are only applicable to serious offences committed in the exercise of the profession and may not originate in the breach of the obligation to pay dues or any other duty of Member pecuniary in nature. 4. The disciplinary penalty of expulsion is applicable when, having regard to the nature of the profession, the disciplinary offence has undermined the life, the physical integrity of persons or be seriously detrimental to the honor or unrelated heritage or equivalent values. 5. The exercise of disciplinary functions of public associations professionals compete, at least in the last instance, the organ referred to in paragraph 1, point (c)), of article 15. 6. In everything that is not regulated in the Statute of each public or professional association, if there is, the respective disciplinary regulations, the provisions of the Disciplinary Status of the employees and agents of the Central, Regional and Local Administration. 7. Can trigger the disciplinary procedure: a) the organs of the Association; b) the provider of users, when exists; c) the Prosecutor.
12 article 18 (provider of users)
1. public professional associations may designate an independent person with the function of defending users of professional services of the members of those. 2. The provider of users is designated under the conditions laid down in the statutes, cannot be a member of the Professional Association and cannot be removed, except for serious misconduct in the performance of their duties. 3. the provider examine complaints submitted by users and make recommendations for the resolution of those complaints as in General to improve the performance of the Association. 4. The position of provider is remunerated in accordance with the statutes or regulations of the Association.
Article 19 (Incompatibilities in the exercise of functions) 1. The performance of executive duties, disciplinary and supervisory bodies in the organs of the public associations professionals is incompatible with each other. 2. The position of holder of public associations professional body is incompatible with the exercise of any functions in the civil service leaders and with any other function which check a manifest conflict of interest. 3. The rule laid down in the first part of the preceding paragraph may exceptionally be waived by statute, when reason of special public interest so requires.
Article 20 (internal Referendum) 1. The statutes of public associations professionals can provide for the submission to a referendum, with binding or advisory, by decision of 13 representative Assembly, on issues of particular relevance to the Association that fit in their assignments. 2. Must be subjected to internal referendum proposals to dissolve the Association. 3. The statutes of each professional public association may specify other questions to submit the referendum procedure. 4. The holding of referendums is necessarily preceded by verification of your legal or statutory supervisory authority provided for in art. 15, paragraph 1, point (c)).
CHAPTER III article 21 MEMBERS (registration) 1. The exercise in liberal regime of profession organized in professional public association is conditioned pre-registration, unless different regime is established in law, and the law to extend the requirement for entry to all the professionals, or impose at least a universal obligation of professional registration. 2. The requirements for the professional public association registration are strictly defined by the law of creation of the Association or the law of regulation of the profession, with respect for the following principles: the) existence of a license, professional or curriculum, officially recognized, required by law for the practice of the profession; b) Eventually, verification of the professional skills by placing the stage or the probationary period; c) training and verification of knowledge relating to the code of ethics of the profession. 3. Under no circumstances will be no numerus clausus on admission to the occupation, no entrance exam in the profession, or accreditation, professional associations, officially recognized courses.
14 article 22 (right to registration) 1. Are entitled to enroll in the public associations all professionals who meet the legal requirements for the exercise of the profession and wish to exercise in liberal regime or not. 2. in the case of a professional ban shall automatically terminate the public professional association sign-up. 3. Can Register in the public national professional associations, other EU Member States that they hold academic and professional qualifications required legally for the practice of the profession in the respective country of origin. 4. Can I still subscribe to the nationals of other States, in conditions of reciprocity, since obtaining the assimilation of your degree in accordance with the legislation in force.
Article 23 (members ' Rights) Are rights of members: the organs of the Association) elect and run for elections, with the inelegibilidades established in the law and in the by-laws; b) participate in the activities of the Association; c) benefit from the services provided by the Association, without any discrimination. d) Other laid down by law and the statutes.
Article 24 (obligations of members) Are obligations of members: the) participate in life of the Association; b) Pay the quotas; c) contribute to the prestige of the Association; 15 d) other legal and statutory duties.
CHAPTER IV LABOUR, financial and FISCAL REGIME article 25 (Guys) workers of the public associations professionals governed by the juridical regime of the contract of employment, without prejudice to a recruitment procedure identical to that provided for in the contract of employment in the public administration.
Article 26 (budget and financial management) 1. The public associations professionals have autonomous budget proposed by the Executive and approved by the representative Assembly. 2. The finances of public associations are subject to the rules of a balanced budget and debt limitation established in own diploma. 3. The public associations professionals are subject to the rules of public procurement and public works scheme. 4. The public associations professionals are subject to the official plan of public accounting. 5. The State does not guarantee the financial liabilities of the public associations or professionals is responsible for its debts.
Article 27 (income) 1. Are public professional associations recipes: a) the quotas of its members; (b)) The fees charged for the provision of services; c) yields their assets and liabilities; d) inheritance, bequests and donations; 16 and) other income provided for in the law and the statutes. 2. The State can only finance the professional public associations in the case of the consideration of specific tasks agreed upon Protocol not included in their legal duties. 3. The deliberations on the establishment of quotas and fees shall be adopted by the representative Assembly, by an absolute majority, on a proposal of the Executive Body, and on the basis of a study that based the amounts proposed, observed the substantive requirements laid down in the General Law on fees and other contributions of the public administration. 4. The recovery of amounts resulting from expected revenues in als. a) and b) of paragraph 1 follows the tax enforcement proceedings.
Article 28 (services) 1. Public associations shall establish the operational and technical services necessary for the performance of their tasks, without prejudice to the Faculty of externalisation of tasks. 2. public associations can establish cooperation agreements with the Government inspection services for the performance of the supervisory task of the fulfilment of the duties of its members.
Chapter V SUPERVISION, JUDICIAL OVERSIGHT and RESPONSIBILITY article 29 (administrative Guardianship) 1. Public professional associations are not subject to government supervision or guardianship of merit, except, on this, the cases specially provided for by law. 2. The public associations professionals are subject to the supervision of legality exercised by the same Government on the Autonomous territorial Administration. 17 3. The order of creation establishes which the Member of the Government shall exercise the powers of guardianship over each professional public association. 4. Subject to the following paragraph, the administrative supervision over the public associations is inspection professionals. 5. Lack of tutelary approval, which is considered given if there is no decision to the contrary in the 90 days following, the regulations focus on the professional internships and professional access to the profession, quotas and associative fees and professional specialties. 6. Applies to public associations professionals, with the necessary adaptations, the provisions of Act No. 27/96, of 1 August.
Article 30 (judicial review) 1. The decisions of the public associations professionals practiced in the exercise of public authority are subject to administrative litigation, in accordance with the laws of the administrative process. 2. Can challenge the legality of the acts and regulations of public associations professionals: a. the persons concerned, in accordance with the laws of the administrative process; b. the Department of public prosecutions; c. the Minister of tutelage; d. the provider of users.
Article 31 (Supervision by the Court of Auditors) public professional associations are subject to the jurisdiction of the Court of Auditors, in accordance with the procedure laid down in this law.
18 article 32 (Annual Report and information duties) 1. Public professional associations shall draw up an annual report on the performance of its tasks, which will present to the Government and to Parliament. 2. The public associations professionals provide to Parliament and the Government all the information that is requested in respect of the exercise of its powers. 3. The bastonários and the Presidents of the executive bodies shall correspond to the request of the competent parliamentary committees to provide information and clarification that these require.
Article 33 (criminal procedure)
The public associations professionals can become wizards in criminal proceedings related to the exercise of the profession who represent or with the performance of positions in your organs, except in the case of facts which involve disciplinary responsibility.
CHAPTER VI article 34 INSTALLATION (Installer Committees) 1. Until the inauguration of the new public associations professionals created under this decree-law, the respective statutes provide for the maximum period of one year, the existence of commissions, which shall be responsible for installation the practice of acts necessary for the election of the representative Assembly and final installation of those organs. 19 2. The installer commissions are composed of three members, one of them being the Chairman, all appointed by the Government, after hearing the interested associations.
CHAPTER VII FINAL PROVISIONS article 35 (Optional Application) 1) By decision taken by its competent organ, the existing public professional associations may request the Government submission to the arrangements provided for in this Act. 2) the application shall be accompanied by the draft new statutes. 3) the publication of the new statute requires the forfeiture of pre-existing statutes.
Article 36 (entry into force) the present law shall enter into force 30 days after its publication.
A.r. 22 May 2007 Members
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