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1 PROPOSAL of law No. 195/X explanatory memorandum Council Directive No. 89/665/EEC of 21 December 1989 on the coordination of laws, regulations and administrative provisions relating to the application of review procedures in relation to the award of public contracts for works and supply, requires that decisions taken by contracting authorities can be subjected to effective and timely resources and the Member States to ensure that he be allowed to grant damages to persons harmed by an infringement. In this context, the judgment of 14 October 2004 of the Court of Justice of the European communities, concluded that the Portuguese Republic does not fully transposed the directive, once kept in force the Decree-Law 48051, of 21 November 1967, which determines the compensation of injured parties as a result of the breach of Community law in the field of public procurement or national rules transposing that the evidence of guilt or guile. The new system of non-contractual Liability of the State and other public authorities, approved by law No. 67/2007, of December 31, in addition to revoke the Decree-Law 48051, of 21 November 1967, introduced a system of presumption of guilt applies to cases in which the damage is caused by legal acts. Endorsed, with the introduction of this presumption of guilt, approach, finally, the legislated framework of practice of our administrative courts, which — in keeping with the tradition established in the countries of southern Europe, particularly France, and the influence of this Community law — already a long came understanding that guilt is inherent in the practice of unlawful legal acts by the administration. At the same time, it was intended to give, thereby satisfying the requirements imposed by Directive 89/665 No./EEC, of 21 December, which came together to Directive 92/13/EEC of 25 February, which, echoing the orientation, French array has inspired the Court of Justice in the area of liability for illegal administrative acts , bottom 2 precisely on the understanding that the fault is contained in illegality committed, without need of demonstration. Having been however triggered, at the level of the Community bodies, the process for failure to comply with the judgment of 10 October 2004, the European Court of Justice on 10 January 2008, condemning the Portuguese Republic by not adopting the necessary measures to implement that judgment, being likely that the Commission will understand that, despite the repeal of Decree-Law No. 48051 November 21, 1967, the consecration of a rebuttable presumption of guilt associated with the practice of unlawful legal acts does not completely the new legal framework the need to prove fault. Felt the need to align the system of non-contractual Liability of the State and other Public Entities, within the framework of the contracts under public law entered into the scope of the directives in question, with the understanding of the European Commission on this issue, adopting a wording identical to that laid down in point (c)) of paragraph 1 of article 2 of Directive 89/665 No./EEC of 21 December 1989 on the coordination of laws, regulations and administrative provisions relating to the application of review procedures in relation to the award of public contracts for works and supply. Thus, ensures the full applicability of the innovations introduced by the Regime of the non-contractual Liability of the State and other public authorities, approved by law No. 67/2007, of December 31, in particular, the abnormal operation of the service.
In fact, the proposed amendment does not prevent the functioning of the Office of the right of return, when it is found that the holder of the organ, employee, agent or employee of the State or public entity acted out of diligence and zeal that are required. The right of return in nothing collides with the position of the victim, since the definition of degree of fault for the purposes of the right of return only to matter in relation to the State or other public entities maintain with the holders of its organs, employees, agents or employees, anyway, so the injured party to be relieved of the burden of proof of guilt eventually associated with the unlawful conduct damaging 3. The protection of victims is also on joint and several liability of the State and other public entities when you watch the harmful intervention of a third party, albeit with right of return of those on this. When the person who suffered the damage ran, somehow, for your production or for your aggravation, should this be taken into consideration by the Court, which is an expression of Justice parameters. So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following proposal of law: article 1 amendment to law No. 67/2007, of December 31 is amended article 7 of the system of non-contractual Liability of the State and other public authorities, approved by law No. 67/2007 , 31 December, it shall be replaced by the following: ' article 7 [...] 1 - [...]. 2-is granted compensation to injured parties for violations that occurred under standard procedure of formation of contracts referred to in article 100 of the code of procedure in administrative courts, in accordance with the requirements of non-contractual liability laid down by Community law. 3 - [...]. 4 - [...].» Article 2 the effect this Act shall take effect from the date of entry into force of law No. 67/2007, of December 31. 4 Article 3 entry into force this law shall enter into force on the day following your publication.
Seen and approved by the Council of Ministers of April 10 2008 the Prime Minister, the Minister of Parliamentary Affairs Minister Presidency
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