Key Benefits:
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PROPOSED LAW NO. 192 /X
Exhibition of Motives
The current legal regime for the installation and modification of trading establishments to
retail and wholesale trade in free service and the installation of commercial assemblies
is stated in Law No. 12/2004 of March 30, which provides, in its Article 37, that the same is
object of review within three years after its entry into force.
Given the size of the changes to be introduced, either in the material scope of the law, or at the level
of the authorisation procedures, it is necessary to proceed to the repeal of Law No 12/2004,
of March 30.
Among the subjects that need to be changed are listed in those relating to the rate setting scheme
and to the definition of the amount of fines, higher than that provided for in the general scheme of
counterordinations.
Being these subjects integrated into the relative reserve of legislative competence of the
Assembly of the Republic, it has opted for the submission of a proposal for a law of
legislative authorization.
The amount of fees charged takes into account the complexity of analysis of the processes and the
specificity of economic agents subject to the present regime. The product of fees
reverts in favour of a Trade Modernization Fund, created by the Decree-Law
n ° 178/2004 of July 27, as amended by Decree-Law No. 143/2005 of August 26,
supporting the modernization of SMEs in the sector, with a view to alleviating the effects
arising from the installation of the commercial units subject to this legislation, well
as of a support fund for commercial entrepreneurs referred to in the order
set paragraph 324/2002 of March 8, published in the Journal of the Republic , 2 th series, paragraph 94, of
April 22, 2002, without prejudice to the appropriations provided for in the same joint order.
Also in respect of fines, it is necessary to provide amounts proportional to nature
of the infringing agents and to the benefit arising from the practice of the offences.
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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
The Government is granted permission to establish the authorisation fee scheme of the
processes for the installation and modification of the establishments and commercial assemblies and
adapt the general regime of counter-ordinations to the offences arising from the violation of the
rules set for those commercial units.
Article 2.
Sense
The present legislative authorization is granted to allow the setting of application fees
of authorisation and fines the amount of which is proportional to the size of the processes,
economic capacity of the offenders and of the benefit arising from the practice of the offence.
Article 3.
Extension
The decree-law to be adopted under the authorisation conferred by this Law shall:
a) To establish that acts relating to the authorisation of the installation and the
modification of the establishments and commercial assemblies, including the
extensions, are subject to the payment of fees, in the following terms:
i) The rate of authorisation of the applications for installation or modification of the
Retail outlets is € 30 per square metre of
authorized sale area;
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ii) In the case of integrated establishments in commercial assemblies, the
amount of the fee referred to in the preceding paragraph is reduced by half;
iii) The rate of installation authorization or modification of sets
commercials is € 20 per square metre of authorized locable gross area,
with a maximum limit of € 1000000;
iv) The fees for the modification processes of establishments of
retail trade arising from business concentration operations
subject to prior notification, pursuant to the competition law
national or community, suffer a two-thirds reduction in relation to the
values referred to in the previous paragraphs;
v) The fees for the extension of the installation permits or
modification of establishments or commercial sets are € 300,
for establishments and € 1500, for commercial assemblies.
b) Establish as a counterordinance punishable from 5000 a to € 25000, when
committed by natural person, and from € 100000 a to € 500000, when committed by
legal person, the installation or modification of an establishment or assembly
commercial without the legally required authorisation and the default of the
obligations that have substantiated the decision of authorisation issued by the entity
competent administrative;
c) Establish as counter-ordinance punishable by € 12500, when committed by
singular person, and until € 150000, when committed by a legal person, the lack of
timely communication to the coordinating entity of any changes
subsequent to the issuance of the authorisation and prior to the commissioning of the
establishment or commercial set up, likely to change the assumptions
of the authorization decision.
Article 4.
Duration
The legislative authorization granted by this Law shall be for the duration of 180 days.
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Seen and approved in Council of Ministers of March 20, 2008
The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs
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The Act No. 12/2004 of March 30 laying down the authorisation regime to which they are
subject to the installation and modification of retail and business establishments
wholesale trade in free service and the installation of commercial assemblies predicts, in their
article 37, which the same is the subject of review within three years after its entry
in force, following the submission by the Government, to the Assembly of the Republic, of a
evaluation report of its application.
The experience gained from the application of the said law has demonstrated diverse misfits either
relative to their structuring either in their implementation.
With the present decree-law intends to comply with the principles of the Programme
SIMPLEX, promoting a simplification of overly complex procedures and
generators of constraints and morosity in the processes, as well as a shortening
of the decision deadlines, decreasing, in this way, the costs of context for the companies.
On the other hand, the deployment of the business structures of the trade, in a way, is regulated
to ensure its spatial insertion, in accordance with criteria that promote an appropriate
spatial planning, safeguard the protection of the environment, value the centres
existing urban and contribute to the multiplicity of commercial supply and to the
diversified supply of populations.
It is thus aimed at contributing to the competitiveness of the urban system, by dinning the
existing urban centralities, favoring urban sociability and improvement of the
supply and the quality of life of populations.
In the appreciation of the new establishments and commercial assemblies is given a special
relevance to the positive contribution of such ventures to the promotion of improvement
of the environment, filling requirements of eco-efficiency, of the development of the
qualification of employment and social responsibility of the promoter companies of the
projects in appreciation.
In concrete, and in what concerne the regime enshrined in Law No. 12/2004, of 30 of
March, the decree-law now passed reduces the universe of establishments of commerce,
isolates or in group, subject to the authorization regime, by raising the boundaries of the areas
of sale in the case of retail and the leasable gross area in the case of sets
commercials.
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Excludes from the authorisation scheme the wholesale and micro enterprises and micro enterprises and
subject to the authorization regime the modifications to commercial assemblies.
It imposes the obtaining of prior favourable location information and the declaration of
favorable environmental impact, in cases covered by the legal assessment regime of
environmental impact, prior to the authorization process, eliminating from the procedure the
projects deemed unviable as to the location and assessment of environmental impact,
thus avoiding analyses, opinions and unnecessary decision-making processes.
Changes the criteria for installation and modification authorization to suit them to the
community imperatives in respect of competition and freedom of establishment.
Abandons the system of application phases, penalizer of investment and of the
promoters, adopting a system of entry of proceedings continue.
It replaces, at the level of the decision, the three currently existing decision-making entities-Directorate
Regional of Economics, Regional Commissions and Municipal Commissions-by a single
entity-the Commercial Assessment Commission (COMAC)-which decides, at the level of the NUT
III, applications for authorization, with a monthly periodicity.
The governing bodies of the Autonomous Regions, the Association, were heard
National of Portuguese Municipalities, the Confederation of Trade and Services of Portugal,
the Portuguese Association of Distribution Companies, the Portuguese Association of the
Shopping Centres, the Entrepreneurship Association of Portugal and the Industrial Association
Portuguese.
Consultation was promoted to the National Board of Consumption.
Thus:
In the use of the legislative authorization granted by the Law No ___/de ___, pursuant to the
points a) and b) of Article 198 (1) of the Constitution, the Government decrees the following:
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CHAPTER I
General provisions
Article 1.
Subject
The present decree-law establishes the legal regime of the installation and modification of the
retail outlets and commercial assemblies.
Article 2.
Scope
1-Are covered by this decree-law, the following establishments and assemblies
commercials:
a) Retail establishments in retail alone considered or entered
in commercial assemblies, which have an area of sale equal to or greater than
2000 m2;
b) Retail establishments, in isolation considered or entered
in commercial assemblies, regardless of the respective area of sale, which
belong to a company that uses one or more insignia or are
integrated into a group, which has a national level of a sales area
accumulated equal to or greater than 30000 m2;
c) Commercial assemblies that have a gross leasable area equal to or greater than
8000 m2;
d) Establishments and commercial assemblies referred to in points a) and b) and that if
find decommissioned more than 12 months ago, should the respective holders
intend to restart their functioning.
2-The provisions of this decree-law shall not apply:
a) To retail outlets owned by micro enterprises
legally separate but which use a common insignia;
b) To establishments belonging to companies whose capital is subscribed
majority-owned by micro enterprises;
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c) To the specialized retail outlets of arms and ammunition,
of fuels for motor vehicles and pharmacies.
Article 3.
Applicable regime
1-It is subject to the authorisation regime the establishment of the establishments and assemblies
commercial referred to in Article 2 (1).
2-Are, still, subject to the authorisation regime the modifications of the establishments and
commercial assemblies referred to in Article 2 (1) that are set up:
a) Alteration of location of establishments with the exception of those in the
point ( a) of the following number;
b) Alteration of the typology of establishments;
c) Increase in the area of sale of the establishments;
d) Alteration of insignia or the holder of exploitation of the establishments, which does not
occur within the same group;
e) Change of location of commercial assemblies;
f) Alteration of the typology of commercial assemblies;
g) Increase of the locable gross area of the commercial assemblies.
3-They are subject to communication the modifications of the establishments and assemblies
commercials referred to in Article 2 (1) that set out:
a) Alteration of location of commercial establishments in the interior of sets
commercials, which do not translate into increase in sales areas;
b) Decrease in the area of sale of the commercial establishments;
c) Alteration of insignia or the holder of exploitation of the establishments, within the
same group;
d) Decrease in the locable gross area of commercial assemblies;
e) Change of the holder of exploitation of commercial assemblies.
4-The modifications referred to in the preceding paragraph are communicated to the entity
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coordinator referred to in Article 6, by the holder of the venture, up to 20 days before
of your realization.
5-A communication is carried out electronically through the model made available in the
information system provided for in Article 7 para.
Article 4.
Definitions
For the purposes of this decree-law is understood by:
a) "Area of sale accumulated", comprises the summation of the sales area in
operation, of the authorised sales area under the Act No 12/2004 of 30
of March, but which has not yet come into operation and the area of sale
authorized under the legal regime of urbanization and building.
b) "Locable gross area (ABL) of the commercial set", the area that produces
yield in the commercial set whether it is an area leased or sold and
includes the storage spaces and offices allocated to all the
establishments.
c) "Area of influence", the freguesie or set of freguesias that integrate into the
geographic area defined as a function of a maximum time limit of
travel of the consumer to the establishment or trade set in question,
counted from this, which may vary, inter alia, depending on the
respective size and type of trade exercised, the structures of leisure and the
services that may be associated with you, from your insertion into an urban or
rural, the quality of the infrastructures that serve you access.
d) "Area of sale of the establishment", the entire area intended for sale, where
buyers have access or the products find themselves exposed or are
prepared for immediate delivery, in it if including the zone occupied by the boxes
outlet and the circulation zones of internal consumers to the establishment,
particularly the connecting stairs between the various floors.
e) "urban centre", the consolidated urban core as provided for in the
planning instruments in force or, not being there defined, the area
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urban where the respective city hall considers to exist greater confluence
of public transport network, higher commercial density and higher number of
central urban functions.
f) "Commercial set", the planned and integrated venture, composed of
one or more buildings in which a diversified set is installed
of retail and / or provision of services, whether
whether or not owned or operated by the same entity, which fills
cumulatively the following requirements:
i) Dispose of a set of facilities designed to allow a
same clientele access to the various establishments;
ii) It is the subject of a common management, responsible, in particular, for the
provision of collective services, by the institution of common practice
and by the policy of communication and animation of the venture;
Adopting one of the following typologies:
iii) Traditional shopping centre-comprises establishments
undifferentiated or specialized integrated into closed venture
or "the open sky";
iv) Specialized commercial centre-comprises, inter alia, the
named retail park , the outlet centre or the thematics. Include want
specialized, usually larger establishments, with
direct access to the car park or to pedonal areas, whether
establishments, of small and medium size, where producers and
retailers sell their products at a discount on the price coming from
of surpluses, as well as articles with minor defects, or other
developed around a specific category of trade
specialized.
g) "Company" means any entity covered by Article 2 (1) of the Law
n. 18/2003 of June 11;
h) "Establishment of retail trade", the place where the activity of
retail trade, as defined in paragraph b) of Article 1 (1) of the
Decree-Law No 339/85 of August 21;
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i) "Establishment of food trade", the place where it is held exclusively
a food trade activity or where this represents a percentage
equal to or greater than 90% of the respective total sales volume;
j) "Establishment of non-food trade", the place where it is exercised
exclusively a non-food trading activity or where this
represents a percentage equal to or greater than 90% of the respective total volume
of sales;
l) "Establishment of mixed trade", the place where they exercise, at the same time,
food and non-food trade activities and the one that is not applicable
provisions of the paragraphs g) and h) ;
m) "Format of establishment of the food or mixed branch", the size of its da
area of sale. For the determination of the format of the establishment of the branch
feed or mixed are considered the following sales areas:
i) Sales area <400m2: minimarized or small supermected;
ii) Area of sale> 400m2 and <2.000m2: supermarket;
iii) Area of sale> 2 000m2: hypermarket.
n) "Procedure Manager", the technician assigned by the coordinating entity for
verification effects of the statement of the application for authorization and follow-up
of the various stages of the process, constituting itself as a privileged interlocutor of the
applicant;
o) "Group", the set of companies that, while legally distinct, maintain
among themselves ties of interdependence or subordination arising from the use of the
same insignia or the rights or powers listed in Article 10 (1) of the Law
n. 18/2003 of June 11;
p) "Installation", the establishment of a retail or joint trade establishment
commercial, whether this translates into new edifices, wants to result from works in
edifications already existing;
q) "Interlocutor responsible for the project", the person or entity designated by the
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applicant for the purpose of demonstration that the project is in
compliance with applicable legislation and for the relationship with the entity
coordinator and the remaining entities involved in the authorisation process;
r) "Social Responsibility of the company", voluntary integration, by the
company, of social and environmental concerns in the pursuit of its business
and interconnect from it with local communities and other interested parties;
s) "Typology of commercial establishments", the establishments of commerce a
food retail and mixed and non-food;
t) "Typology of commercial assemblies", the traditional shopping centre and the
specialized.
CAPITCHAPTER II
Installation and modification authorization
Article 5.
Prior location information and environmental impact statement
1-For the purpose of instruction of the process of installation authorization and modification of the
establishments and commercial assemblies, the interested parties must request in advance
city hall a briefing on the feasibility of carrying out such ventures
in the desired location under the terms of Articles 14 and following of the Decree-Law
n ° 555/99 of December 16, as amended by Law No. 60/2007,
of September 4.
2-In the case of the establishments and commercial assemblies covered by the legal regime
of environmental impact assessment (EIA), in addition to the provisions of the preceding paragraph, the
interested should instruct the process with statement of environmental impact (DIA)
favorable or conditionally favourable and, in the case of the EIA procedure having
elapsed in a phase of prior study, with the opinion concerning the compliance of the project
of execution with the DIA.
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3-Should the installation or modification of the establishments or commercial assemblies occur
in installations previously allocated to commercial use and provided that the request does not
imply alteration of urbanistic parameters, prior location information may
be replaced by the alvshall of permission to use for commercial purposes.
4-In the case of trading establishments inserted in commercial assemblies
covered by this decree-law the advance information of location is replaced
by the favourable prior information of location of the commercial set or by the
authorization to install the commercial set, if it already exists.
Article 6.
Coordinating entity
1-A the coordination of the installation and modification authorization process, including the
technical and administrative support to the decision-maker, it is up to the Directorate-General for
Economic Activities (DGAE), designated by coordinating entity, to which it is
considered, for the purpose, the sole interlocutor of the applicant.
2-A DGAE may delegate the competence referred to in the preceding paragraph in the regional direction
of territorially competent economy (DRE).
Article 7.
System of information
1-A The procedure for the procedures provided for in this decree-law is carried out in a manner
dematerialised as soon as the respective systems are in operation
information, which, in an integrated manner, among other functionalities, allow:
a) The delivery of applications for authorization, communications and documents;
b) The consultation by the stakeholders of the state of the respective process;
c) The sending and receiving of opinions;
d) The issuance of the decision.
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2-A provision of information to the different entities with competence within the framework of
present decree-law is carried out in a dematerialized manner, by means of integration and
guarantee of inter-operationality between the respective information systems.
3-It is assigned a reference number to each process at the beginning of the tramway that is
kept in all the documents in which the acts and formalities of the
competence of the coordinating entity or the competence of any of the entities
actors.
4-The functionalities of the information system include the rejection of operations of whose
execution would result in vices or disabilities of instruction, specifically by refusing the
receipt of the applications that are not properly instructed.
5-Information systems produce automatic notifications for entities
involved whenever new elements are added to the process.
Article 8.
Tramway
1-The procedures provided for in this Decree-Law start by application
or communication presented with recourse to electronic means and through the system
provided for in the previous article, addressed to the coordinating entity, of which they must appear
the elements referred to in the Annex to this Decree-law.
2-With the submission of the application or communication by electronic means is issued
receipt receipt delivered by the same form.
3-The applicant shall identify an interlocutor responsible for the process and the entity
coordinator designates a procedure manager, to whom it competes to ensure the
development of the procedural plotting, following in particular the instruction,
compliance with deadlines and the provision of information and clarifications to the
applicants.
4-When in the verification of the instructory documents of the process you will see that these
are not in accordance with the provisions of paragraph 1, the coordinating entity
requests the applicant, within five days from the date of receipt of the application, the
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dispatch of the missing elements, setting a deadline for the respective shipment.
5-The process is only properly instructed on the date of receipt of the last of the
elements in foul.
Article 9.
Opinion of the DGAE
1-A DGAE issues its opinion within 30 days of the date of receipt of the
application properly instructed in the terms of the previous article.
2-The opinion of the DGAE is mandatory and, when unfavorable, has binding nature.
3-The opinion of the DGAE is issued on the basis of the parameters referred to in Article 10.
4-A DGAE may request, in the first 10 days of the deadline, clarifications or
additional information, considering the deadline for the drafting of the
respective opinion until the reception of the requested elements.
5-Applicants have a period of 10 days from the date of receipt of the
respective request for response purposes.
Article 10.
Parameters of appreciation of DGAE
1-For the purpose of issuing its opinion to DGAE proceeds to the scoring of the processes in
project value (VP) function, according to the following defined parameters
for the different commercial typologies:
a) The contribution of the establishment to the multiplicity of the trade offer so much
in formats such as in insignia, so as to promote effective competition
between companies and groups in the area of influence, attending, on the sets
trade, the diversity of its activities;
b) Evaluation of services provided to the consumer, namely, those that
promote comfort in the purchase, a better integration of the people with
deficiencies and incapacities and adherence to conflict resolution processes of
consumption;
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c) Assessment of the quality of employment in the establishment and responsibility
social of the company;
d) Evaluation of the integration of the establishment or commercial pool in the environment
urban, strengthening the attractivability of the urban centre as a destination
commercial and leisure and contributing to the decrease in displacements
pendulars;
e) Contribution of establishment or trade set to efficiency
energy or use of renewable energy, use of recyclable materials
and / or degradable and recycling of waste.
2-A form of VP calculation results from the summation of the scores obtained in each
of the parameters referred to in the preceding paragraph, being the positive DGAE opinion
when the process obtains a VP of more than 50% of the global score.
3-The commitments made in the paragraphs b) , c) and e) of paragraph 1 shall be submitted from
quantified form and may be the subject of annual verification by the supervising entity,
over a period of five years, counted from the commissioning date of the
establishment or commercial assembly.
4-A methodology for the determination of VP, its application to the establishments of
food and mixed-use retail, non-food and commercial assemblies as well as the remaining
technical rules necessary for the implementation of the parameters of appreciation, are fixed by
would pore from the member of the government responsible for the area of commerce.
Article 11.
Commercial Authorization Commission
1-A competence to grant the installation and modification authorization referred to in us
n. paragraphs 1 and 2 of Article 3 shall be up to the Commercial Authorization Commission (COMAC)
territorially competent.
2-COMAC have the following composition:
a) An element indicated by the set of territorially organized municipalities
on the basis of the level III units of the NUTS in which it is intended to be installed or
modify the retail establishment or the commercial set, which
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preside;
b) The chairman of the respective municipal chamber;
c) The chairman of the regional coordination and development committee (CCDR)
territorially competent;
d) The Director of the Directorate General for Economic Activities;
e) The regional director of territorially competent economics.
3-The entities referred to in the preceding paragraph may make themselves represent by a
element by itself assigned.
Article 12.
Operation of the Commercial Authorization Commission
1-COMAC meets, monthly, for appreciation of all the processes that
have been submitted by the coordinating entity.
2-The operating rules of the COMAC are fixed by porterie of the member of the
government responsible for the area of commerce.
3-COMAC members become subject to the rules of confidentiality applicable to the
state officials, regarding the facts of which they take notice in the
exercise of its functions.
Article 13.
COMAC decision criteria
The decisions of COMAC are issued after analysis of the DGAE's opinion provided for in paragraph 1
of Article 9, being the assessment of the processes carried out on the basis of the following criteria:
a) Respect for spatial planning standards, as well as suitability for
sectoral plans or other guiding standards that come to be defined in the
various instruments of territorial planning;
b) Positive contribution in environmental protection by valuing projects
energetically more efficient and with lower impact on the enveloping;
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c) Evaluation of the functional articulation of the establishment or commercial joint
with the urban centre as a way to qualify the existing centralities,
promote urban attractiveness, decrease the pendular displacements and reduce the
Congestion of the infrastructure;
d) Assessment of the commercial value of the project in accordance with Art. 10 (1)
Article 14.
Decision
1-A The coordinating body sends members of COMAC competent for the purpose of
decision, copies of the proceedings and the opinion of the DGAE referred to in Article 9 (1).
2-In the lack of issuance of the opinion referred to in the preceding paragraph shall be issued, by the entity
coordinator, document proving that the required time limit has elapsed
for its issuance.
3-For decision purposes the COMAC analyzes, at each meeting, all the processes that
have been remitted up to five days earlier by the coordinating entity.
4-Can be requested, through the coordinating entity, and at one time,
clarifications or supplementary information to the entities that issued opinion and
to the applicant, which they have a maximum period of 15 days for the purpose of
response, being the process submitted to the decision at the following meeting.
5-A The decision made is accompanied by the imposition of obligations aimed at guaranteeing the
compliance with commitments made by the applicant and which have constituted
assumptions of the authorization.
6-A coordinating body notifies the applicant of the decision taken pursuant to the
articles 100 and 101 of the Code of Administrative Procedure, and may only
respective authorisation to be issued after payment of the due fee, pursuant to the
article 25 of this decree-law.
7-A The authorization referred to in the preceding paragraph shall be considered for the purpose of the provisions of the
article 37 of the Decree-Law No. 555/99 of December 16 as amended
given by Law No. 60/2007 of September 4.
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Article 15.
Impugation
From the decision of the COMAC it is up to challenge for the administrative courts of circle,
by having the Secretariat-General of the ministry responsible for the area of trade, with the
collaboration of the entities involved in the authorisation process, provide the necessary
legal support.
Article 16.
Expiry of the authorisation
1-A The permission granted shall lapse if, within three or four years from the date of
its issuance, not to check the commissioning, respectively, of the
establishment of trade or the commercial set to which the same respects.
2-In the case of commercial establishments entered into commercial assemblies a
authorization shall lapse on the date of the expiry of the authorization of the commercial set.
3-A exceptional title, COMAC may extend the permission granted until the
maximum of one year, when dealing with trade establishment, or up to the maximum
of two years, in the case of commercial set-up, on the basis of application of the
interested, duly reasoned and presented, with the minimum advance of
45 days of the date of the expiry of the permit, to the coordinating entity, which issues a
opinion on the same.
Article 17.
Subsequent amendments to the authorisation
1-The amendments that the applicant intends to introduce in the process between the date of issue
of the authorisation and the entry into operation of the establishment or assembly
commercial, likely to change the assumptions on which that was based and which say
respect, inter alia, to the increase in the area of sale or the leasable gross area, to the
typology or the exploitative entity if set group change, are
compulsorily communicated to the coordinating entity up to 45 days prior to the date
expected of entry into operation of the establishment or commercial assembly.
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2-Within three days counted from the date of its reception, the coordinating body
referred the request for change to the entities that have intervened in the authorisation process,
for effects of appreciation.
3-The entities referred to in the preceding paragraph shall draw up opinion within 10 days
counted from the date of receipt of the application.
4-A non-issuance of opinion within the time limit set in the preceding paragraph shall be considered as
assent.
5-A COMAC decides at the meeting following the date of receipt of the last of the opinions
referred to in paragraph 3 or the end of the period for the respective issue, which elapsed which, without
that the decision is made, if it considers that the request for amendment has been deposed.
CAPITCHAPTER III
Health
Article 18.
Communication of openness
1-Without prejudice to the obtaining of the alvshall of permission of use, provided for in the scheme
legal of urbanization and edification, the holder of the venture, up to 20 days before
of the opening of the establishment or commercial assembly, communicates such a fact to the entity
coordinator and the respective municipal chamber, accompanied by the term of
responsibility according to which the establishment or commercial assembly fulfils the
commitments that have substantiated the installation or modification authorization.
2-A The communication referred to in the preceding paragraph shall be considered for the purpose of the provisions of the
Decree-Law No. 259/2007 of July 17.
3-A communication is carried out through the model referred to in Article 3 (5).
Article 19.
Communication of the closure
The closure of the establishments and commercial assemblies covered by this
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decree-law should be communicated to the coordinating entity, up to 20 days after its
occurrence, through the model referred to in Article 3 (5).
Article 20.
Registration
1-A opening, the modifications and the closure of the establishments and sets
commercials covered by this decree-law are the subject of registration, carried out by the
DGAE, which is considered for the purposes of the provisions of the Decree-Law No. 462/99, of 5
of November and Article 6 of the Decree-Law No. 259/2007 of July 17.
2-The registration is carried out on the basis of the communications made under paragraph 4 of the
article 3 para. , n Article 18 (1) and artigo19.
Chapter IV
Requests for information, surveillance and sanctions
Article 21.
Provision of information
The DGAE, in the exercise of the competences conferred upon them by this decree-law,
may request the provision of information to companies and associations of companies, fixating,
for the purpose, the deadlines that they understand reasonable.
Article 22.
Surveillance
The monitoring of compliance with the provisions of this decree-law, including verification
regular compliance with the conditions and commitments made by the promoters,
that have conditioned the issuance of the authorization, competes with the Security Authority
Food and Economic (ASAE), without prejudice to the competences legally assigned to
other entities.
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Article 23.
Offences
1-Constituent counter-ordinances punishable by the following fines, when committed
by natural person:
a) From € 5000 a to € 25000, the installation or modification of an establishment or
commercial set without the legally required authorisation and the default of the
obligations that have substantiated the authorisation decision issued by COMAC;
b) From € 2500 a to € 12500, the lack of timely communication to the entity
coordinator of any subsequent changes to the issuance of the authorisation and
previous to the commissioning of the establishment or assembly
commercial, likely to change the assumptions of the authorization decision;
c) From € 500 a to € 2500, the lack of timely communication of the planned modifications
in Article 3 (4), the opening of the establishment or commercial assembly without
communicate in a timely manner to the coordinating body and the city hall
respective and the closure of the establishment or commercial assembly without
communicate in a timely manner to the coordinating entity;
d) From € 250 a to € 1250, the lack of sending information to DGAE by the companies or
associations of companies.
2-Constituent counter-ordinances punishable by the following fines, when committed
by legal person:
a) From € 100000 a to € 500000, the installation or modification of an establishment or
commercial set without the legally required authorisation and the default of the
obligations that have substantiated the authorisation decision issued by COMAC;
b) From € 30000 a to € 150000, the lack of timely communication to the entity
coordinator of any subsequent changes to the issuance of the authorisation and
previous to the commissioning of the establishment or assembly
commercial, likely to change the assumptions of the authorization decision;
c) From 5000 a to € 25000, to the lack of timely communication of modifications
provided for in Article 3 (4), the opening of the establishment or assembly
23
commercial without communicating in a timely manner to the coordinating body and the chamber
respective municipal and the closure of the establishment or assembly
commercial without communicating in a timely manner to the coordinating entity;
d) From 2500 a to € 15000, the lack of sending of information to the DGAE by the
companies or associations of companies.
3-A negligence is punishable, being the limits and maximums of the applicable fines reduced to
half.
4-A ASAE may request the collaboration of any other entities whenever the
judge necessary for the exercise of their duties.
5-A The instruction of counterordinance processes competes with ASAE.
6-A The application of the fines and ancillary penalties provided for in this Decree-Law shall compete with
Commission for the Application of Fines In Economic and Advertising Matters
(CACMEP).
7-The product of the fines applied under this Act reverses:
a) 60% for the State;
b) 30% for the ASAE;
c) 10% for CACMEP.
8-A CACMEP proceeds to payment, up to the day 10 of each month, through transfer
bank or cheque, to the entities referred to in points a) and b) of the previous number,
accompanied by the relationship of the processes to which they relate.
Article 24.
Ancillary sanction
In the case of counter-ordinances provided for in points a) and b) of paragraphs 1 and 2 of the preceding Article,
simultaneously with the fine, may be applied, for a period not exceeding 2 years, the
ancillary sanction provided for in paragraph f) of Article 21 (1) of the Decree-Law No 433/82, of
October 27, as amended by the Decree-Law No. 244/95, 14 of
September, by staying the restart of activity dependent on the granting of permission to be issued
by the competent entity pursuant to this decree-law.
24
Article 25.
Fees
1-Acts relating to the authorisation of the installation and modification procedures of the
trade establishments and commercial assemblies, including extensions, are
subject to the payment of the respective fee, the amount of which varies in relation to the area of
sale or gross leasable area the subject of authorisation.
2-The rates referred to in the preceding paragraph are as follows:
a) The rate of authorisation of the applications for installation or modification of the
Retail outlets is € 30 per square metre area of
authorized sale;
b) In the case of integrated establishments in commercial assemblies, the amount of
rate referred to in the preceding paragraph is reduced by half;
c) The rate of authorisation of installation or modification of commercial sets is
from € 20 per square metre of authorized locable gross floor area, with a limit
maximum of € 1000000;
d) The fees for the modification processes of trading establishments
retail arising out of merger operations of companies subject to
prior notification, pursuant to the national competition law or
community, suffer a two-thirds reduction in relation to the values referred to
in the previous paragraphs;
e) The fees for the extension of the authorisations of installation or modification of
establishments or commercial assemblies are of:
i) € 300, for establishments;
ii) € 1500, for the commercial sets.
3-The revenue resulting from the collection of the authorization fees of the processes and the
extensions reverses in 1% in favour of the coordinating entity, 0.5% in favour of the
entity that issues the opinion provided for in Article 9 and the remainder in favour of the Fund of
Modernization of Trade, created by the Decree-Law No. 178/2004 of July 27,
changed by Decree-Law No. 143/2005 of August 26, as well as from the fund of
support for commercial entrepreneurs referred to in the Joint Order No. 324/2002, of
25
March 8, published in the Journal of the Republic , 2. th series, paragraph 94, of April 22, 2002,
without prejudice to the appropriations provided for in the same joint order.
4-A The settlement and collection of the fees are the coordinating entity's competence, which
proceeds to the payment, up to the day 10 of each month, through bank transfer or
check, to the remaining entities, accompanied by the relation of the processes to which they refer.
CHAPTER V
Final and transitional provisions
Article 26.
Application to Autonomous Regions
This decree-law applies to the Autonomous Regions of the Azores and Madeira, without
injury of the skills committed to services or bodies of the administration of the
State to be exercised by the corresponding services and bodies of the administrations
regional, with identical assignments and competences.
Article 27.
Pending processes
1-The processes relating to establishments and commercial assemblies which, by virtue of the
amendment of the scope of this decree-law, they cease to be covered
by the authorisation regime, are considered extinct.
2-The processes which, at the date of the entry into force of the present decree-law, do not have
still obtained the decision referred to in Article 17 of Law No 12/2004 of March 30, are
decided in accordance with the provisions of this decree-law, and the entity may
coordinator request the necessary elements for your assessment, according to the
new parameters and criteria of appreciation.
3-The present decree-law applies to requests for modification provided for in Article 21 of the
Law No. 12/2004 of March 30, as well as the extensions of authorisations,
referred to in its Article 20 para.
26
4-The provisions of this decree-law shall not apply to modifications of sets
commercial referred to in Article 3 (2), concerning which, at the date of entry into
vigour of this decree-law, the construction permit has already been issued, pursuant to the
legal regime of urbanization and edification.
Article 28.
Abrogation standard
1-It is repealed Law No. 12/2004 of March 30 and the Portaries n. ºs 518/2004, 519/2004
and No 520/2004, all of May 20, and No. 620/2004 of June 7;
2-A revocation provided for in the preceding paragraph shall be without prejudice to the remission operated by
legal diplomas in force for:
a) The definition of "large commercial surfaces", established in the a) of paragraph 1
of Article 2 of the Decree-Law No 258/92 of November 20;
b) The definition of "wholesale trade establishment" set out in the
a) of Article 3 of Law No 12/2004 of March 30.
3-For the purposes of subjecting the EIA procedure the remission operated by the letter b) from the
Paragraph 10 of Annex II to Decree-Law No 69/2000 of May 3, as amended
has been given by the Decree-Law No. 197/2005 of November 8 for the definition of
establishment of trade or commercial assembly, considers itself carried out for the
points f) and h) a l) of Article 4 of this Decree-law, without prejudice to the provisions of the
point ( b) of the previous number.
4-
Article 29.
Entry into force
This decree-law shall come into force 90 days after its publication.
Seen and approved in Council of Ministers of
The Prime Minister
27
The Minister of State and Finance
The Minister of Justice
The Minister of the Environment, Territory Planning and Regional Development
The Minister of Economy and Innovation
28
ANNEX
Elements that must accompany the application for installation or modification of the
Retail establishments and commercial assemblies in accordance with the provision in paragraph 1
of Article 8 of this decree-law.
A-ELEMENTS APPLICABLE TO ESTABLISHMENTS.
When they are in cause retail establishments referred to in points a) and
b) of Article 2 (1) of this Decree-Law, applications for permission shall be
accompanied by the following elements:
I-GENERAL INFORMATION
a) Legitimacy for submission of the application:
Title of property, contract-promise or any other document quite, from
that results in or may come to result in the legitimacy of the applicant to build the
establishment in question or, should these already exist, to exploit them commercially;
b) Number and location of establishments fulfilling the requirements set out in the
Article 2 (1) of the present decree-law which, eventually, already detains, referring to the
respective years of opening up, areas of sale and number of employees;
c) Prior information of favourable location or document that replaces it in the terms
of the provided for in Article 5 of this Decree-read;
d) In the case of commercial establishments covered by the legal assessment scheme
of environmental impact, statement of favorable environmental impact or document that the
substitutes, in accordance with the provisions of Article 5 of this Decree-read;
II-CHARACTERICATION
Characteristics of the trade establishment:
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Location;
Name / insignia / assignation;
Typology of trade (food, not food-with indication of the respective
industry-or mixed) business;
Number of floors;
Area of sale / areas of storage, support services and offices;
Number of parking spaces and of charges and discharges provided and
respective areas;
Predictable deadline of construction and opening up to the public.
III-AREA OF INFLUENCE
a) Definition of the area of influence:
Identification, rationale and characterization of the area of influence to which the report is
application and presentation of the underlying methodology;
b) Description of the commercial diversity that occurs in the area of influence to which it reports
the request:
Number and characteristics of existing establishments and which are covered
by Article 2 (1) of this Decree-law, specifying, in particular, the
respective locations, specifying the freguesia, areas of sale, insignia, branches of
trade and methods of sale.
IV-APPRECIATION
a) Fulfillment of the parameters of appreciation:
Demonstration of the fulfilment of the parameters of appreciation referred to in paragraph 1 of the
article 10 of this decree-law, including filing of document of which
build on the commitments referred to in Article 10 (3) of the present
30
decree-lei;
b) For the purpose of the assessment provided for in the b) of Art. 10 (1) of the present
decree-law-services provided to the consumer-must indicate in a quantified manner and
discriminated:
i) What support services for people with disabilities and incapacities;
ii) Existence of customer discount card;
iii) Existence of delivery service to domicile, if applicable;
iv) Existence of assistance from support-sales, if applicable;
v) Existence of distance selling, if applicable;
vi) Adherence to the centre for arbitration of consumer conflicts.
c) For the purpose of the assessment provided for in the c) of Article 10 (1) of this Decree-
law-quality of employment and social responsibility-must indicate in form
quantified and discriminated:
i) Number of persons in the service;
ii) Number of workers employed by type of contractual bond and category
professional;
iii) Number of contracts concluded with persons with disabilities and incapacities;
iv) Existence of continuous training plan for all employees.
d) For the purpose of the assessment provided for in the d) of Art. 10 (1) of the present
decree-law-location of the establishment in the urban centre-must present
statement from the city hall indicating whether the establishment is situated in or out
of the urban centre as defined in the paragraph e) of Article 4 of this decree-law.
e) For the purpose of the assessment provided for in the e) of Art. 10 (1) of the present
decree-law-eco efficiency-must indicate in a discriminated manner:
i) Existence of energy certification as referred to in Annex XI of the
Decree-Law No 79/2006 of April 4;
ii) Adoption of measures for the improvement of environmental quality through the
use of recyclable and / or degradable materials, namely, in bags of
shopping and packaging, existence of packaging points and other
31
reusable goods, pollutant products, etc;
iii) Existence of recycling of waste and what percentage.
Or in its replacement the existence of Environmental Certification as NP Standard
EN ISO 14001:2004
32
B-ELEMENTS APPLICABLE TO COMMERCIAL ASSEMBLIES:
When they are in question commercial sets referred to in points c) and d) of paragraph 1 of the
Article 2 of this Decree-Law, applications for permission shall be accompanied by the
following elements:
I-GENERAL INFORMATION
a) Legitimacy for submission of the application:
Title of property, contract-promise or any other document quite, from
that results in or may come to result in the legitimacy of the applicant to build the
commercial set in question or, should this already exist, to exploit it commercially;
b) Number and location of commercial assemblies that fulfil the expected requirements
in Article 2 (1) of the present decree-law which, eventually, already detains, referring
the respective years of opening, locable gross areas, establishments that the
constitute, mix commercial and number of establishments in operation, number
of own workers and shops;
c) Prior information of favourable location or document that replaces it in the terms
of the provision in Article 5 of this decree-read;
d) In the case of commercial sets covered by the legal assessment scheme of
environmental impact, statement of favorable environmental impact or document that the
substitute, in the terms of the provision of Article 5 of this decree-law.
II-CHARACTERICATION
Characteristics of the commercial set:
Location;
33
Name / assignation;
Number of floors;
Locable gross area;
Areas of storage, support services and offices;
Number of parking spaces and of charges and discharges provided and
respective areas;
Number of trade establishments that integrate the trade set and
mix expected commercial;
Distribution of stores by groups of activities;
Number of estimated jobs from the stores and the CC;
Predictable deadline of construction and opening up to the public.
III-AREA OF INFLUENCE
a) Definition of the area of influence:
Identification and characterization of the area of influence to which the application is reported and
presentation of the underlying methodology;
b) Description of the commercial diversity that occurs in the area of influence to which it reports
the request:
Number and characteristics of the commercial assemblies that fulfil the requirements
provided for in Article 2 (1) of this Decree-Law, specifying,
specifically, the respective location, specifying the freguesia, and gross areas
locable;
IV-APPRECIATION
a) Fulfillment of the parameters of appreciation:
34
Demonstration of the fulfilment of the parameters of appreciation referred to in paragraph 1 of the
article 10 of this decree-law, including filing of document of which
build on the commitments referred to in Article 10 (3) of the present
decree-lei;
b) For the purpose of the assessment provided for in the a) of Art. 10 (1) of the present
decree-law-diversity of activities-must indicate in a quantified manner and
discriminated against the activities that define your mix;
c) For the purpose of the assessment provided for in the b) of Art. 10 (1) of the present
decree-law-services provided to the consumer-must indicate in a quantified manner and
discriminated:
i) What services are supporting the elderly and the person with disabilities and disability;
ii) Existence of childcare and monitoring services of children and what their
cost for the customer;
iii) Existence of parking and what its cost to the customer;
iv) Existence of a discount card for the customer;
v) Existence of purchase letter with single point of delivery of purchases;
vi) Adherence to the centre for arbitration of consumer conflicts.
d) For the purpose of the assessment provided for in the c) of Art. 10 (1) of the present
decree-law-social responsibility of the company-must indicate in a quantified manner and
discriminated:
i) Existence of leisure spaces and taking meals for the workers of the
establishments inserted in the commercial assembly;
ii) Existence of daycare for the children of the workers of the establishments
entered in the commercial set.
e) For the purpose of the assessment provided for in the d) of Art. 10 (1) of the present
decree-law-location of the commercial set in the urban centre-must present
statement from the city hall indicating whether the establishment is situated in or out
of the urban centre as defined in the paragraph e) of Article 4 of this decree-law.
f) For the purpose of the assessment provided for in the e) of Art. 10 (1) of the present
decree-law-eco efficiency-must indicate in a discriminated manner:
35
i) Existence of energy certification as referred to in Annex XI of the
Decree-Law No 79/2006 of April 4;
ii) Adoption of measures for the improvement of environmental quality through the
use of recyclable and / or degradable materials, namely, in bags of
shopping and packaging, existence of packaging points and other
reusable goods, pollutant products, etc;
iii) Existence of recycling of waste and what percentage.
Or in its replacement the existence of Environmental Certification as NP Standard
EN ISO 14001:2004.