Key Benefits:
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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