Key Benefits:
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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