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1
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