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PROPOSED LAW NO. 160 /X

Exhibition of Motives

The realization of full and effective gender equality in Portuguese society is a

accountability of the state which is increasingly dependent on the attention to be given to areas

up until some time ago not associated with these concerns. With effect, historically, the

first measures aimed at the realization of equal treatment between men and

women orient themselves to the area of work and employment. But this is not the only area

in which discrimination occurs; also outside the labour market discrimination

on the basis of sex creates obstacles to equality and full integration of men and

women in economic and social life.

From the other aspects of everyday life in which unequal treatment is still occurring

between men and women, it has detected the European Union that the area of access to goods and

services and their supply is particularly problematic. This diagnosis gave

origin to Council Directive No 2004 /113/CE of December 13, 2004, which

applies the principle of equal treatment between men and women in access to goods

and services and their supply. This proposed law aims to proceed with the transposition

of that Directive at the same time as it deepens the realization of the imperative

constitutional equality, particularly equality between men and women.

The realization of equality through the present proposed law goes on to ban the

discrimination, direct and indirect, in the role of sex, in access to goods and services,

being applicable to all persons, public or private, who provide goods and preshas

services available to the public on a free or costly basis. There is discrimination

direct whenever, depending on the sex, a person is subjected to treatment less

favorable than the one who is given to another person in an equivalent situation. The

indirect discrimination shall occur where a provision, criterion or practice

apparently neutral put people of a given sex in situation of

disadvantage comparatively with people of the other sex, unless

objectively to be justified by a legitimate end and that the means to achieve it are

suitable and necessary.

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Excluded from the scope of this proposed law stay the goods and services

offered in the framework of private and family life as well as transactions carried out

in that context, the content of the media and advertising, the sector of

education and, as well, the subjects of employment and profession, including work no

employee, exclusion this that regarding insurance contracts or other services

financial determines the application of this regime only to private services,

volunteers and independents of the employment or professional relationship.

The present proposed law prohibits, by 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 December 21, 2007, and guarantees

that the costs of the covers linked to pregnancy and motherhood are reparties of

equitable form between men and women.

The possibility of recourse to the judicial route, as well as to resolution structures, is expected

alternative of disputes, incumbent on the respondent party to prove that there was no violation of the

principle of equal treatment. It also stipulates the protection against risks

of reprisals on the victims and witnesses of a discrimination based on sex,

excluding application to criminal proceedings.

To nongovernmental organizations contributing to the fight against discrimination

on the grounds of sex is to be recognized procedural legitimacy for the collective defence of the

rights and individual interests legally protected from their associates, as well as

for the defence of the values protected by the present proposal of the law. Are ressaved the

cases of harassment, where only the harassed person has procedural legitimacy in the

terms of this Law.

The practice of any discriminatory act, by action or omission, confers on the aggrieved the

right to an indemnity, for damages and non-patrimonial damages, to the title of

extracontratual civil liability, in the general terms.

Without prejudice to civil liability and other sanction that the couber case, constitutes

counterordinance the practice of any discriminatory act by natural person or by

legal person of public or private law. In the event of recidivism or retaliation

the minimum and maximum limits of the fine are high for double. Also the attempt and

negligence is punishable, being the minimum and maximum limits of the fines imposed,

in these cases, reduced to half.

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They are declared void and without effect or amended the contractual provisions and rules which

do not respect the principle of equal treatment pursuant to this Act.

Ancillary sanctions are still provided for in light of the seriousness of the act of discrimination

and of the fault of the agent, which can be applied simultaneously with the fines.

The Commission for Citizenship and Gender Equality (IGC) is the national body

responsible for ensuring the promotion of equal treatment between men and

women in the fields governed by this proposed law and who will be competent by the

analysis of the problems detected, by the issuance of opinions on the processes that

come to be instituted under this proposed law and by the submission to the

Government of an annual report in which it is mentioned the information collected on the

practice of discriminatory acts and applied sanctions.

It was heard the National Data Protection Commission, the National Council of the

Consumption and the Portuguese Association of Insurance.

Thus:

Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the

Assembly of the Republic the following proposal for a law:

Article 1.

Subject

This Act shall have the object of preventing and prohibiting discrimination, direct and indirect, in

role of sex, in access to goods and services and their supply and sanction the practice of

acts that translate into the violation of the principle of equal treatment between men

and women.

Article 2.

Scope

1-A This Law applies to public and private entities that provide goods and

preshas services available to the public for free or onerous title.

2-Are excluded:

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a) The goods and services offered in the framework of private and family life as well as the

transactions carried out in that context;

b) The content of the means of communication and advertising;

c) The education sector;

d) The issues of employment and profession, including non-salaried work.

Article 3.

Definitions

1-For the purpose of this law, they are considered:

a) "Direct discrimination", all situations in which, depending on gender, a

person is subjected to treatment less favorable than the one who is, have

been or may come to be given to another person in a comparable situation;

b) "Indirect discrimination", whenever a provision, criterion or practice

apparently neutral put people of a given sex in a situation of

disadvantage compared to people of the other sex, other than that

provision, criterion or practice objectively if warranted by a legitimate end

and that the means to achieve it are appropriate and necessary;

c) "Harassment", all situations in which an unwanted behavior occurs,

related to the sex of a given person, with the purpose or effect of

to violate the dignity of the person and to create an intimidating, hostile environment,

degrading, humiliating or offensive;

d) "Sexual harassment", all situations in which a behavior occurs

unwanted of a sexual character, in physical, verbal or nonverbal form, with the

purpose or the effect of violating the dignity of the person, in particular when creating

an intimidating, hostile, degrading, humiliating or offensive environment.

Article 4.

Principle of equality and prohibition of discrimination depending on gender

1-It shall be prohibited from discrimination, direct or indirect, as defined in this Law,

based on shares, omissions or contractual clauses in the scope of access to goods and

services and their supply.

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2-Consider discriminating, specifically, the practices or clauses

contractual that it results:

a) The refusal to supply or prevent the fruition of the goods or services;

b) The provision or unfavourable fruition of goods or services;

c) The refusal or conditioning of purchase, renting or subleasing

of real estate;

d) The refusal or unfavorable access to health care provided in

public or private establishments.

3-Are also discriminatory any instructions or orders with a view to the

direct or indirect discrimination.

4-Harassment And Sexual Harassment are considered discrimination for the purpose of the present

law, not being relevant to the rejection or acceptance of this type of behaviors by the

people in question as a foundation of decisions affecting them.

5-Acts and discriminatory clauses consider themselves to be void giving way to

civil liability in accordance with the damage caused.

6-It does not constitute discrimination against the application of more favourable provisions having in

view the protection of women in pregnancy, puerptery and breastfeeding.

7-A The guarantee of full equality between men and women is without prejudice to maintenance

or approval of specific positive action measures aimed at preventing or

compensate for factual situations of inequality or disadvantage related to the

sex.

Article 5.

Protection in pregnancy situation

The request for information regarding the pregnancy situation of a woman is prohibited

applicant for goods and services, save for reasons of protection of your health.

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Article 6.

General scheme for insurance contracts and other financial services

1-A consideration of sex as a factor in calculating premiums and insurance benefits

and other financial services may not result in differentiations in premiums and

benefits.

2-Without prejudice to the preceding paragraph, differentiations in premiums are nevertheless admitted

and individual insurance benefits and other financial services when

proportionate and arising from an assessment of the risk based on actuarial data

and relevant and rigorous statistics.

3-The actuarial and statistical data consider themselves to be relevant and rigorous for the purpose

provided for in the preceding paragraph when obtained and drawn up in the terms of standard

regulatory issued for the purpose by the Insurance Institute of Portugal.

4-A The admissibility of the scheme provided for in paragraph 2 is the subject of updating 5 years after

its entry into force.

Article 7.

Pregnancy and maternity covers

Costs related to pregnancy and motherhood cannot result in a

differentiation of premiums and benefits from insurance contracts and other services

financial.

Article 8.

Means of defence

Without prejudice to the appeal to the judicial route, the parties may submit the resolution of the

emerging disputes of the present law to alternative dispute resolution structures.

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Article 9.

Burden of proof

1-It is up to those who claim to have been aggrieved by an act of direct discrimination or

indirect to present the constitutive facts of the same, incumbent on the party

demanded to prove that there was no violation of the principle of equal treatment.

2-In the event of an act of retaliation, the aggrieved only has to present the facts

constitutive of the form of treatment or of the unfavorable consequence as well as

state what the complaint or the judicial procedure that carried out to require the

compliance with the principle of equality, incumbent on the respondent party to prove that

there is no causal link between each other and others.

3-The provisions of the preceding paragraphs shall not apply to criminal proceedings.

Article 10.

Responsibility

1-A The practice of any discriminatory act, by action or omission, confers on the aggrieved

the right to an indemnity, for damages and non-patrimonial damages, to the title of

extracontratual civil liability, in the general terms.

2-In the setting of the compensation the court must meet the degree of violation of the

interests in question, to the economic power of the authors of the illicit and to the conditions of the

target person of the discriminatory practice.

3-In contracts containing discriminatory clauses, the aggrieved contractor has the

right to the amendment of the contract in such a way that the contractual rights and obligations

are equivalent to those of the most benefited sex.

4-A effective change to the contract provided for in the preceding paragraph shall not be awarded

compensation for extracontratual liability.

5-The sentencing sentences handed down in the seat of civil liability are

published, after transit on trial, at the expense of those responsible, in one of the

daily publications of the largest circulation of the Country, by extract, of which they must appear

only the facts proving of the discriminatory practice, the identity of the

offended and the convicts and the compensation fixed.

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6-A The publication of the identity of the offending depends on the express consent

of these manifested by the end of the trial hearing.

7-A The publication takes place within five days of the judicial notification.

Article 11.

Procedural rights of non-government associations and organisations

1-It is recognized for non-government associations and organizations whose object

statuary is essentially fearless to the promotion of the values of citizenship, defence

of human rights, women's rights, gender equality and defence

of the rights of consumers procedural legitimacy for the defence of rights and

collective interests and for the collective defence of individual rights and interests

legally protected from their associates, as well as for the defence of the values

protected by this Law.

2-In the event of harassment, only the harassed person has the procedural legitimacy in the

terms of this law.

3-A collective defence of legally protected individual rights and interests

provided for in the preceding paragraph shall not imply limitation of individual autonomy

of the associated.

Article 12.

Counter-ordering

1-A practicum of any discriminatory act by natural person, as prohibited

by paragraphs 1 a to 4 of Article 4, as well as the violation of the provisions of Articles 5 and 6,

constitutes counterordinate punishable with fine graduated between five and ten times the

value of the guaranteed monthly minimum consideration, without prejudice to liability

civil and from another sanction that to the couber case.

2-A Practice of any discriminatory act by legal person of public law or

private, as prohibited by paragraphs 1 a to 4 of Article 4, as well as the violation of the

in the provisions of Articles 5 and 6, constitutes counterordinance punishable by fine

graduated between twenty-thirty times the value of the guaranteed monthly minimum consideration,

without prejudice to the civil liability and other sanction that the case couber.

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3-In the event of recidivism or retaliation the minimum and maximum limits of the fine are

high to double.

4-A attempt and neglect are punishable by being the minimum and maximum limits of the

applied fines reduced to half.

5-Whenever the counterordinance results from the omission of a duty, the application of the

sanction and the payment of the fine do not waive the offender of his / her compliance, if

this is still possible.

Article 13.

Ancillary sanctions

1-As a function of the seriousness of the act of discrimination and the fault of the agent, they may be

applied, concurrently with the fines, the following ancillary sanctions:

a) Loss of objects belonging to the agent;

b) Interdiction of the exercise of occupations or activities that depend on title

public or authorization or type-approval of public authority;

c) Deprivation of the right to subsidy or benefit bestowned by entities or

public services;

d) Deprivation of the right to participate in public pitching or contests that

have the object of the provision of public goods or services and the assignment

of licences or alvargas;

e) Suspension of permits, licences or alvargas;

f) Closure of establishment whose operation is subject to

authorization or leave of administrative authority;

g) Publicity of the sanctionatory decision; and

h) Warning or public censorship to the perpetrators of the discriminatory act.

2-The sanctions referred to in points b) a f) of the previous number have the maximum duration of

two years counted from the definitive sanctionatory decision.

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Article 14.

Statement of the process

1-A statement of the counter-ordering process by the conducts or omissions to which if

refers to Article 12, it is incumbent on administrative entities whose assignments are concerned

on the subject matter of the offence.

2-Without prejudice to Art. 20 (2), copy of the process already instructed to the

Commission for Citizenship and Gender Equality, accompanied by the respective

final report.

Article 15.

Application of fines

The definition of the measure and the application of the ancillary fines and sanctions, within the framework of the

counter-ordinational processes referred to in the previous article, incumbent on the entities

administrative officers whose assignments focus on the subject matter of the offence.

Article 16.

Product of the fines

The product of the fines is affection in the following terms:

a) 60% for the State;

b) 30% for the administrative entity that instructs the counterordinational process

and applies the respective fine;

c) 10% for the Commission for Citizenship and Gender Equality.

Article 17.

Registration

1-Administrative entities with competence to apply fines in the framework of

present law and the courts communicate all the attestative decisions of the practices

discriminating against the Commission for Citizenship and Gender Equality (IGC), which

organizes a record of them.

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2-A The creation and maintenance of the registration provided for in the preceding paragraph, will have to observe the

procedural and data protection standards, and is subject to the prior opinion of the

National Commission on Data Protection.

3-The entities referred to in paragraph 1 may request, in the course of any proceedings

based on the violation of the prohibition of discrimination pursuant to this Act,

information to the IGC on the existence of any decision already transitioned on trial

relating to the entity concerned.

4-A The provision of the information referred to in the preceding paragraph to the requesting entities

must take place within ten days.

Article 18.

Competition for offences

1-If the same fact constitutes, simultaneously, unlawful criminal and counterordinance, the

agent is punished always on criminal basis.

2-The sanctions applied to the counter-ordinations in tender are always cumulated

materially.

Article 19.

Conflicts of competence

Positive or negative conflicts of competence are decided by the member of the

Government that has its office the area of equality and for the rest under whose power to

direction, superintendence or guardian if they find the entities involved in the situation

generator of the conflict of competence.

Article 20.

Follow-up

1-Compete to the Commission for Citizenship and Gender Equality (IGC) to accompany the

application of this Law.

2-A IGC issues opinion on the proceedings brought under this Law

whenever requested.

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3-Compete still to the IGC to submit to the Government an annual report in which it is

mentioned the information collected about the practice of discriminatory acts and the

applied sanctions.

4-The annual report, referred to in the preceding paragraph, is released on the official website of the IGC.

Article 21.

Subsidiary law

The provisions of this Law shall apply, as a subsidiary, to the general regime of the against-

ordering.

Article 22.

Entry into force

1-The provisions of Article 6 shall enter into force on December 21, 2007.

2-The provisions of Article 7 shall enter into force on December 1, 2009.

Seen and approved in Council of Ministers of September 13, 2007

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs