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PROPOSED LAW NO. 195 /X

Exhibition of Motives

Council Directive No 89 /665/CEE of December 21, 1989, which coordinates the

legislative, regulatory and administrative provisions relating to the application of the proceedings

of appeal in the award of public procurement of works and of

provision, imposes that the decisions taken by the contracting authorities may be

object of effective and speedy resources and that the member states see to it to be

allowed to grant compensation to persons injured by a violation.

In this framework, the judgment of October 14, 2004 of the Court of Justice of the

European Communities, concluded that the Portuguese Republic did not transpose in full the

said Directive, as it kept in force the Decree-Law No. 48051, of 21 of

November 1967, which subordinates the compensation of aggrieved persons as a result

of the violation of Community law in respect of contracts of public law or of the

national standards that transpose it to the proof of the existence of guilt or dolo.

The new Regime of Extracontrattual Civil Responsibility of the State and Too Many Entities

Public, approved by Law No. 67/2007, of December 31, in addition to revoking the Decree-

Law No. 48051 of November 21, 1967, introduced a regime of presumption of guilt

applicable to cases in which damage is caused by legal acts. Vised, with the

introduction of this presumption of guilt, finally approximate the legislated normative framework

of the practice of our administrative tribunals, which-in line with the tradition firmed up

in the southern European countries, with particular emphasis on France, and, by influence of this,

in community law-, as long ago they have been understanding that guilt is inherent in the

practice of illegal legal acts on the part of the Administration. From the same step, it intended-

thereby give satisfaction to the requirements imposed by Directive No 89 /665/CEE, 21 of

December, to which it came to join the Directive No 92 /13/CEE of February 25, which,

doing echo of the orientation, of French matrix, which has inspired the Court of Justice of the

Communities in the area of responsibility for illegal administrative acts, rests

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precisely in the understanding that guilt lies with insect in the illegality committed,

without caress, hence, of demonstration.

Having meanwhile been triggered, at the level of community bodies, the process by

non-compliance with the judgment of October 10, 2004, came the Court of Justice of the

European Communities, on January 10, 2008, to condemn the Portuguese Republic for

non-adoption of the necessary measures to be implemented in that judgment, and is likely to

European Commission to come to understand that despite the repeal of Decree-Law No 48051,

of November 21, 1967, the consecration of an illegible guilt presumption associated with the

practice of unlawful legal acts does not completely depart from the new legal framework a

need to come to demonstrate guilt.

It was thus felt the need to align the Civil Liability Regime

Extracontrattual of the State and Too Many Public Entities, in the framework of the contracts of

public law inserted in the scope of the Directives in question, with the understanding of the

European Commission in this matter, adopting an identical wording to the consecrated in the

point ( c) of Article 2 (1) of Council Directive No 89 /665/CEE of 21 of

December 1989, which coordinates the laws, regulations and

administrative matters relating to the application of the appeals procedures in award

of the contracts for public works and supply law.

In this way, the full applicability of the introduced innovations will be simultaneously guaranteed

by the State Extracontrattual Civil Liability Regime and Too Many Entities

Public, approved by Law No. 67/2007 of December 31, specifically, the

abnormal operation of the service.

In effect, the amendment now proposed does not preclude the functioning of the institute of law

of return, when it is found that the holder of the organ, employee, agent or employee

of the State or the public entity has acted outside the diligence and zeal frameworks that are

demanded. The right of return on nothing collides with the position of the aggrieved, since the

definition of the degree of guilt for the purposes of the right of return will only matter in the relationship

that the State or the other public entities maintain with the holders of their organs,

officials, agents or workers, continuing, therefore, the injured person to be

dispensed with the burden of proof of guilt eventually associated with the illicit behavior

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damaging. The protection of the injured shall also manifest itself in the sympathetic responsibility of the

State and too many public entities when they attend the damaging intervention of a third party,

even though with right of return from those on this one.

When the person who suffered the damage ran, in some way, to his

production or for its aggravation, should such a fact be taken into account by the

court, which is expression of parameters of justice.

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.

Amendment to Law No. 67/2007 of December 31

Article 7 of the State Extracontrattual Civil Liability Regime is amended and

Too Many Public Entities, passed by Law No. 67/2007, of December 31, which passes

to be replaced by the following:

" Article 7.

[...]

1-[...].

2-It is granted compensation to persons injured by violation of standard

occurred in the framework of the procedure for the formation of the contracts referred to

in Article 100 of the Code of Procedure in the Administrative Courts, of

agreement with the requirements of the defined extracontratual civil liability

by Community law.

3-[...].

4-[...]. "

Article 2.

Production of effects

This Law shall produce effect from the date of the entry into force of Law No. 67/2007, 31 of

December.

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Article 3.

Entry into force

This Law shall come into force on the day following that of its publication.

Seen and approved in Council of Ministers of April 10, 2008

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs