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Approves The Legal Regime That Establishes The Professional Qualification Required Technicians Responsible For Elaboration And Subscription Of Projects For Monitoring And By The Directorate Of Labour, Which Is Not Subject To Special Legislation, And Du...

Original Language Title: Aprova o regime jurídico que estabelece a qualificação profissional exigível aos técnicos responsáveis pela elaboração e subscrição de projectos, pela fiscalização de obra e pela direcção de obra, que não esteja sujeita a legislação especial, e os deveres

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The Decree No. 73/73 of February 28 came to recognize the architects, civil engineers,

engineering and mining technical agents, civil constructors and even, in certain

circumstances, to other professionals without any qualification, competence to

subscribe to projects for architecture. The reasons that led to your approval-and that

have, at the date, deserved the concordance of the National Syndicate of Architects-they are today

outdated and have been replaced with arguments justifying the speedy revocation of the

diploma, which, incidentally, has already been for several times promised and even officially

assumed (cfr., for example, points 3 and 4 of the Dispatch of the Ministers of the Plan

and of the Territory Administration, and of Public Works, Transport and Communications, of

March 27, 1986, and the preamble to DL 205/88, of June 16).

What is in question, fundamentally, is to give back and to reserve the Architects as

competencies whose exercise only their special qualification justifies and requires. In addition,

it is about ensuring the appropriateness between Portuguese and community reality, avoiding the

perpetuation of asymmetries with very negative economic and cultural consequences.

Anyway, it must ensure the present generations the fruition of a heritage built of

quality, and to the brooms an aesthetic legacy with which to identify themselves.


I. The reasons for the approval of Decree No. 73/73, of February 28

According to the White Paper on the politics of housing in Portugal (ENH, 1993),

" until the late 50, the reigning immobilism in Portuguese society made them

caries were more of a qualitative nature than quantitative: poor conditions of

habitability, reduced pattern fires, lack of infrastructure and equipment, and

a marked degradation of buildings by the absence of conservation measures. The weak

industrialization conditioned the urbanization of the population and the demand for a policy of

more productive housing. The housing production was always scarce, in that period. In

1960, with the construction of less than 27,000 fires, Portugal stood on the tail of Europe

with the annual production of 3.26 fires per 1,000 inhabitants " (p. 30).

This panorama condiments with the logic of the New State regime, characterized by the

austerity and authoritarianism. The Government has despised the conservation of heritage

built intended for the domicile of the common citizen, and bettered on the realization of large

public works as symbols of the regime ( v.g ., the deep urban renewal of the area of

Bethlehem with the Exposition of the Portuguese World, the construction of the Bridge (Salazar) on the

Tejo). Attention to the architectural aspects has become circumscribed, so to the buildings

public, to national monuments (and other buildings of public interest) and to their

protection zones. The construction and alteration of these real estate should be subordinate to

necessarily projects signed by architects ( maxime, if the piece had

recognized architectural value) or by civil engineers, save if they were the " works of

architecture and simple construction " (cfr. the Decrees-law No. 23511 of January 26, 1934,

paragraph 39600, of April 3, 1954, and No 40388, of November 21, 1955).

" However, the 60 mark, in Portugal, the awakening for industrialization and the

correlative acceleration of the urbanization process. The logic of this process has imposed, from

finals of the decade, a speech and institutional measures in favor of a policy of

more productive housing (...) Fundiary speculation has known about its "oirage season". The

increase in the incomes of the middle classes, tourism revenues and remittances from the

emigrants, then in frank expansion, have caused a sharp increase in demand and the

bank liquidity, which was routed, essentially, for land transactions and

for real estate " ( White Paper on the politics of housing in Portugal, cit., pp. 30 and



It is in this context that the DL 166/70 emerges from April 15, introducing new rules on the

licensing of private works. As stated in point 1 of the respective preamble, the

disciplining spirit of the diploma oscillated between two coordinates: on the one hand, the

promotion of urban construction, " so as to facilitate-if the satisfaction, which of it depends, on

imperious social and economic needs " and, on the other hand, the guarantee of security,

salubrity and aesthetics of the edifices. The acceleration of the licensing procedure

passed, among other things, by the transmission of responsibility for compliance with

technical, general and specific rules, of the authorities for the authors of the projects,

by restricting the examination of the Administration " to the exterior aspect of the project, to its insertion

in the urban environment, the respective cércea, to its compliance with the plan or foreground of

urbanization and its regulation, and may thus be abbreviated " (section 3, and article 10º).

This amendment, it asserted, meant an investment of trust in the authors of the

projects, which had correspondence in the requirement of establishment, on the part of the

Minister of Public Works, of the official qualification to be demanded from the responsible technicians

by the projects, listened to the Minister of National Education and the corporate bodies (cfr.

the article 4º/ to 1).

The population pressure (with high birth rates, result of recovery

economic of the years 60), the rapid growth of the metropolitan areas of Lisbon and Porto, the

who has joined the progressive influx of the "returned" of the (ex-) colonies, of a band,

allied to the reduced number of architects (in 1969, were little more than 500 the architects

entered into the Union), from another band, forced the lawmaker to lower the quality and

thereby compromising the result of the vote of confidence that they did in 1970. We're

obviously to refer to the approval of Decree No. 73/73 of February 28, fruit,

simultaneously, from the growing demand for new dwellings and the reduced supply of those

professionals who, with more quality, could correspond to it.

In essence, through the Decree No. 73/73, the Government, supported in a Report of a

Commission where representatives of the Order of Engineers, the Union

National of Architects, of the National Syndicate of Auxiliary Engineers, Agents

Engineering and Conductor technicians, and the National Syndicate of Civil Builders,

broadened the spectrum of professionals apt to subscribe to construction projects and studies of


urbanization, with a view to ensuring the existence of technicians in sufficient number to

correspond to the said increase in demand.

In addition to the civil engineers and the architects, qualification was also recognised

for the performance of such tasks to technical civil and mine engineering agents,

civil constructors graduates, as well as other technical graduate technicians in Engineering or

Architecture, recognized by the respective professional bodies (v. Articles 1º and 2º

of Decree No. 73/73). The diploma proceeded still to a second (and third) extension, in a

transitional provision (Article 6º): while it was not defined by the bodies

professionals the scheme for granting specialisation degrees, the municipal chambers

could continue to accept projects from the authorship of technicians whose qualification does not

obeyed the parameters fixed, as long as they had been living it for at least five years

(# 1). And, on the other hand, in the absence of any technicians and in the face of the need to do

in the face of the requirements of the housing market, the chambers could even accept projects

of the authorship of unqualified persons, provided that they are domiciled in the respective constituencies

territorial and while maintaining such a deficiency (No 2).

It is certain that certain tasks were reserved, by virtue of their special

characteristics, to qualified professionals. It was the case of the " projects of structures of

technical complexity or high economic value involving the recourse to solutions

of non-current characteristics ", in which the compulsory intervention has been established

of civil engineers (article 4º/ to 2). Or the situation to which it alluded to paragraph 4 of Article 3º, which

imposes the intervention of architect " on the projects of new buildings and in the alteration in

existing buildings, which involve modifications to their plastic expression, in the areas

approved by the Government for this purpose, on a proposal from the municipal chambers

interested ".

However, even these "exceptions" do not allow to consider that the diploma has secured the

announced standards of demand and accountability promised by DL 166/70: the

expressions used by the legislator are, on the one hand, too vague ( v.g. , who defines

the degree of complexity technique ? what are characteristics not currents ?) and, on the other hand,

the discretization of the Administration is too broad and abandons altogether to the

chambers the initiative to promote the architectural quality of buildings (one of the

very rare examples of the concretization of Article 4º/3 is Portaria 1442/95, 30 of


November, relative to the ancient areas of the city of Esposende and the village of Fão-cfr.

ANTÓNIO LAMB, Right of Architecture , 5ª edition, 2000, p. 25, note 6).

This legislative framework has meanwhile come to suffer punctuals-and, acknowledge, important-

derogations over the course of their already nearly thirty years of life. However, they were not

sufficient to make it compatible with the current reality, nor from the social point of view,

nor legal. The repeal of Decree No. 73/73 of February 28 is, at various levels, a


II. The reasons for the need for the revocation of Decree No. 73/73, of February 28

1. Social reasons:

a) The broadening of supply to the level of academic training

There is today in Portugal a considerable number of institutions of higher education that

they provide the course of Architecture. Second information provided by the Order of the

Architects, in June 2002 the recognised courses are:

-Graduate Course in Architecture of the Faculty of Architecture of the University

Technique of Lisbon;

-Graduate Course in Architecture of the Faculty of Architecture of the University of the


-Graduate Course in Architecture of the Faculty of Science and Technology of the

University of Coimbra;

-Licentiate course in Architecture of the Lusian University;

-Higher Course of Architecture of the Artistic Higher School of Porto;

-Course of Architecture of the School of Artistic Technologies of Coimbra;

-Course of Architecture of the Higher Institute of Mathematics and Management;

-Course of Architecture of the Lusophone University of Humanities and Technologies;


-Course of Urbanistic Management Architecture of the Faculty of Architecture of the

Technical University of Lisbon;

-Course of Architecture of Urban Planning and Territorial of the Faculty of Architecture

of the Technical University of Lisbon;

-Graduate Course in Architecture of the Independent University;

-Graduate Course in Architecture of the Autonomous University;

-Graduate and Urbanism course of the Gallaecia High School;

-Licentiate course in Architecture of Dintubal-Setúbal;

-Graduate Course in Architecture of the Modern University;

-Licentiate course in Architecture of the University of Minho.

Thus one understands the evolution of the number of architects, from the already mentioned half-milhar

from the end of the 70, to the already more than 10,000 currently enrolled in the Order, to which

add another so many in frequency phase and completion of the graduation.

b) The generalization of interest in the issues related to urban renewal

In 1984, he wrote the Architect REIS CABRITA, in an article subordinate to the title

Responsibility and exercise of the profession : " It can be said that the cultural characteristics and

civilizational development in Southern Europe, and particularly in Portugal, not

promote the extension of the activity of the architect beyond the label of " man of art

erudite ", whose participation, understood as a luxury, would only be justified in the works

exceptional. Leaving the historical explanations, the aforementioned underutilisation results

today, in large part, of the erasure of the cultural dimension in the immediacy and poverty of the

vast majority of current achievements and lack of awareness on the importance that

intervention by the architect could have through the impacts that such performance would have, by the deadline,

in cultural, social and even economic development, of the community " ( in Journal of the

Architects, paragraphs 27/28/29, 1984, p. 7). With the rejuvenation of the population, with the

elevation of the educational level, and with the open to the world provided by the accession to the

European Union, the panorama is today, thankfully, another.

In effect, the Portuguese population is found to be increasingly motivated for the issue of


urban renewal. Look at the enthusiasm that has concised an initiative such as EXPO 98, the

which has transformed the eastern coastal strip of the city of Lisbon-and which currently constitutes

a leisure area of the capital-, or the ready popular reaction to the controversial idea of construction

from an elevator to the Castle of S. Jorge, to be implanted in the Martim Moniz zone. Remember-

if the expectation created around the cultural facilities resulting from the Port 2001,

notably the (still unfinished) House of Music, despite the huge disorders

inherent in the works. Record the liking with which the populations, in general, have received the

interventions related to the Polis Programme (Resolution 26/2000 of May 15). The

beauty of buildings, the aesthetic arrangement of cities, the conservation of cultural heritage-

in addition to the simultaneous awareness, in depth, to the problems of urbanism

and the environment-no longer being faced as luxuries, to integrate into the notion of

quality of life of the average citizen.

c) The need to credibly credit professionals in the construction industry

The professionals connected to the construction sector, in part fruit of the existing legal framework,

are from the most misviewed by the public. The de-characterization of emblematic zones of the

cities ( v.g ., the Avenue of Freedom, in Lisbon), the violentation of the moth of the buildings (by

example, with the persistent installation of air-conditioning appliances on the facades

exteriors), the true anarchy of styles and degradation of the landscape built in the zones

rural, are some of the factors contributing to the poor indiscriminate image of the

professionals (and non-professionals) connected to the construction branch. The widespread idea is

that the sector-especially in areas of strong real estate speculation-finds itself "

saque ", dominated by the empire of money, and not for the reasons of the aesthetics and security of the

edifices, or by urban and environmental quality.

The Decree No. 73/73 of February 28 had, at a first, a justification

social and economic, ended up sustaining situations of "professional habilitation by decree"

far beyond necessity, which have been turned from exception into rule,

condemning the ostracism the professionals actually qualified for the design of

construction projects. By merely illustrative title, the results of a

enquiry carried out by the Superior Council of Public Works, in the period


understood between 1974 and 1984 ( In the Journal of Architects , No. 26, 1984, p. 6). For a

set of 66,626 projects, the authories divided as follows:

Architects = 4.1%

Civil engineers = 30%

Technical engineers of civil and mines = 45.9%

Civil constructors = 13.9%

Other = 6.1%

This data helps to understand the totally negative situation to which it has come in

Portugal and which is more than urgent to invert.

2. Legal reasons:

a) The constitutional guidelines

The development of taste for architecture in Portugal and the bet on the diffusion of its

education at the top level is, first of all, a result of the state's concern with

the values of environmental protection in a broad sense; second, and depending on the

which precedes, amounts to a state recognition of the relevance of the training

specialized of that which is an essential component of real estate. By

last, and third, the awareness of citizens for architectural quality

of the outer spaces is a form of democratization of the culture and increment of the

quality of life.

1. Since 1976 the protection of the environment integrates the set of tasks of the State (cfr. the

article 66º, in its original version). In Article 66º/2 of our Constitution, which adopts a

broad concept of the environment (see also the constant definition of paragraph 2 (a) of the

Article 5º of the Bases of the Environment-Law No. 11/87 of April 7), the State and

the remaining entities, public and private, to promote the "valorisation of the landscape" in the


scope of spatial planning [paragraph (b)]; the " preservation of cultural values of

historical or artistic interest "[point c)]; the" environmental quality of the stands and life

urban, specifically in the architectural plan and the protection of historical areas "

[paragraph e)]. All this in a logic of sustainable development and the consequent

observance of the principle of intergenerational solidarity [point (d)].

Thus, the alliance between quality of life, sustainable development and preservation of the

environmental values, understood in broad sense-that is, encompassing the environment

humanly built (see, in concretization of this idea, article 20º of the Law of

Foundations of the Environment)-is fully taken up by the Constitution. The promotion of the

quality of life of the members of the community, in the frame of a strategy of

sustainable development, is one of the tasks of the state (Article 81º/a) of the Constitution). The

sustainable development is therefore the guiding macroprinciple of the action of the

Social status in that it touches on the rational management of collective, present and future fruition goods.

In the words of BASSOLS COMA, " the desideratum of sustainable development not only

calls into question the traditional schemes of urban planning in what it touches upon

targeting of the uses of the soil, to the building typologies, to the volumes and densities, in all

which would be immediately contending with the forms of spatial coexistence (dwellings,

equipment, transport infrastructure, energy consumption), as it has also

multiplier effects on environmental resources (water, air, natural resources) of such

intensity that can make it unviable, from the ecological point of view, the projects of

urban development or the interior reform of cities " ( Panorama del Derecho

Urbanistic español: balance y perspectives , in the Legal Magazine of Urbanism and

Environment, 1998/9, pp. 55 segs, 72).

To confirm this analysis, it refers to the autonomization of the values of the urbanistic ordinance in the

constitutional revision of 1997, in paragraph 4 of Article 65º. The essential link between

architecture and the management of the urban space is synthesized in an exemplary manner by MAX

QUERRIEN: " In the architectural space, each point is linked to everyone else by one

set of subtle relations, which is always fatal unaware. There's not a single space ... The

protection of the monument does not stand in the face of the outer surface of its walls. The

architecture is not the world of objects but rather the world of relations. And the relations

are everywhere in " (cited by M. HUET, Le droit de l' architecture , 2ª edition, Paris,


1990, p. 65-highlighted our). The architect must be recognized the role of coordinating,

through a dual participation-in urban planning and in the elaboration of

architectural projects-, the buildings and their engaging scenarios, conferring a

significant cohesion to the built heritage.

2. All the architect is a creator, but not all the creators of building projects are

architects. The freedom of cultural creation is recognized to all citizens by the

Constitution (Article 42º); however, architecture is an art and a technique that implies

responsibilities of such social relevance that your exercise must be reserved

to those who possess superior training in the specialty. More than a decorator of

exterior, a mere embellisher, the architect has the responsibility to conceive

edificatory projects that relieve the aesthetics to the safety and convenience of those in them

will reside and that they integrate harmoniously into the urban landscape, valuing the

city in all its dimensions.

It was essentially for these reasons that the state recognized the social need for

creation of the Order of Architects (through DL 176/98, of July 3, and in the sequence

of the Association of Portuguese Architects, created by the DL 465/88, of 15 of

December). They are "specific needs" (cfr. the article 267º/4 of the Constitution) that

justify the restriction of freedom of association in the name of values of relevance

fundamental for members of the community. " The constitutional reference to satisfaction

of specific needs constitutes a corollary of the principle of necessity and of the

proportionality: matching the limitations to freedom of association to the

advenient benefits of the public organization, as well as balance between the sum of

powers to confer on the public association and the globalizing sense of the public interest

primary assumed by the State. The intervention that takes place through the Orders

professionals presupposes the public interest to safeguard the advantages that the exercise

of the profession can provide the collectivity.

It is not enough, therefore, to be an invocation of the public interest, for the " interest

collective " is formed by a multitude of public interests of intensity and reach

very variable. It becomes indispensable that the restrictions on freedom of association and the

professional activity if they support in the invocation of a sufficiently public interest


important, manifested in the situation of the collective life in which it dives into the profession. Only

a public interest of prime importance may justify the creation of a

public association. " Such will happen, for example, when there is a need to do

respect a code of honor or deontological required by the particularity or delizadeza

of certain functions "" (DIOGO FREITAS DO AMARAL and RUI MEDEIROS, Opinion

unheard of the constitutional admissibility of creation of an Order of the

Journalists , 1992, pp. 13 and 14).

The recognition of the social importance of the architecture, practiced by more and more

professionals, thus corresponded to the finding, on the part of the State, of the importance

legal of the establishment of basic rules of access and exercise of the profession, through

of an associative basic body, endowed with mechanisms of democraticism

internal. In consistency with this recognition, it must be concluded that it can only

(legally) to exercise the profession of architect who possesses the necessary qualifications,

in the light of the criteria established by the Order.

It is that, if the Order was created to regulate the conditions of access and exercise of the profession of

architecting, with all the demand and rigour that the public interest complains, and in it only can

join who to fill in the necessary requirements, which sense makes it continue to accept

that, outside of it and without fulfilling these requirements, other people, not possessors of the

degree in Architecture, continue to perform materially identical tasks

to the reserved, by the DL 176/98, of July 3, to the architects? You should not understand

who who, unlicensed in Architecture and so not enrolled in the Order of the

Architects, exerts materially identifiable functions as own acts of the

profession of architect, makes it illegally [v. infra , b) and c)]? It is manifest that, thus

how a nurse practitioner cannot prescribe medical prescriptions, and to a solicitor is not

allowed judicial sponsorship-we'd be facing illegal exercise of medicine and the

advocacy-, for-little to unlicensed persons in Architecture there is-of being

recognised the right to subscribe to architectural projects-under penalty of checking

a situation of illegal exercise of architecture.

3. Architecture aims to capture the aesthetics of a time, immortalizing - a in creations

real estate functionally fit to serve the purposes-housing, commercial, industrial


-for which they were conceived. An architect is, thus, a creator of gift in view of the

future : on the one hand and in the first line, the architect / builder conceives buildings for

provide an immediate use, in conditions of safety and convenience, but on the other

side, and in second line, the architect / artist interprets his or her time and applies that reading to

a space, inserting into it a memory, which will perpetuate itself by the generations to come. The

architect has, of this made, a double responsibility: cousin , satisfy the consumer

right away from your art, in formal and materially qualitative terms; secundo , leave a

significant brand for future generations.

In the expressive formula of the European Charter of Architectural Heritage, adopted in 1975

in the Congress of Amsterdam, within the Council of Europe, " the incarnation of the past in the

architectural heritage constitutes an indispensable environment to the balance and to the

blooming of man (...) It is an essential part of the memory of the men of

today and to the lack of being passed on to future generations, (...) Humanity would be amputated from

a part of the consciousness of its own duration " (cit. by FILIPE MARCHAND, Defence and

preservation of heritage , in the Right of Urbanism, INA, 1989, pp. 55 and segs, 61).

The architecture, in its art strand from abroad, is a privileged vehicle of the

democratization of culture and promotion of quality of life (cfr. articles 73º/3 and 78º

of the Constitution). It conveits to the citizen a sense of belonging to a space,

stimulates your social sensitivity, anyway, is a " vivifier element of identity

common cultural " (article 78º/2/c) of the Constitution). For the built heritage of

today be the cultural heritage of tomorrow, the one in which we review ourselves and through which

we want to be remembered, urge ascribe and reserve the architects the function of design

global of the built space. In a word, it is necessary to reserve the exercise of the

architecture for professionals with specialized training. Only so will it be possible

comply with the constitutional desicts.

b) The Community Guidelines

" Whereas the architectural creation, the quality of the constructions, its insertion

harmonious in the surrounding environment, the respect of natural and urban landscapes as well as

of the collective and private heritage are in the public interest; whereas, therefore, the


mutual recognition of diplomas, certificates and other titles must be based on

qualitative and quantitative criteria that guarantee that the holders of the diplomas,

certificates and other recognized titles are able to understand and translate the

needs of individuals, social groups and collectives on the subject of

organization of the space, of conception, organization and realization of the constructions, of

conservation and enhancement of the built heritage and protection of equilibria

natural "-these and other reasons have led the Council of the European Community to approve the

Directive 85/384 of June 10 (published in the Official Journal of August 21, 1985-

the citation is of recital No. 4).

The intention could not be clearer: it is about ensuring that the art of building, wants

as an identiactive element of European culture, whether as a construction technique

idonea, be exercised, in all Member States, by professionals whose training

comply with identical parameters. From the text of the Avulta Directive, by its importance in

determination of the hard core of the architectural functions , Article 3º, which transcribes:

" The formations that lead to the achievement of diplomas, certificates and other titles

referred to in Article 2º shall be ensured by a university-level education of which the

architecture will constitute the main element. This teaching should maintain a balance between

the theoretical and practical aspects of the formation in architecture and to ensure the acquisition:

1) From the ability to design architectural projects that meet the requirements

aesthetics and techniques;

2) Of an adequate knowledge of history and theories of architecture as well as of the

related arts, technologies and human sciences;

3) Of a knowledge of the fine arts as factors that are likely to influence the

quality of architectural design;

4) Of a suitable knowledge in urbanism, planning and techniques

applied in the planning process;

5) From the ability to apprehend the relationships between, on the one hand, man and creations

architectural and, on the other, architectural creations and their environment, as well as the

need to relate to each other architectural creations and spaces depending on the


needs and the human scale;

6) From the understanding of the profession of architect and its role in society, namely

by the elaboration of projects that take social factors into account;

7) Of a knowledge of the methods of research and preparation of the project of


8) From the knowledge of structural design, construction and engineering problems

civil related to the design of the buildings;

9) Of an adequate knowledge of physical problems and technologies, as well as of the

function of buildings, in the sense of providing them with all elements of interior comfort and of

climate protection;

10) From a technical capacity that allows you to design constructions that meet the

requirements of users, within the limits imposed by the cost factor and by the

regulations on construction;

11) Of a proper knowledge of industries, organizations, regulations and

procedures involved in the realization of the projects in constructions and integration

of the plans in the planning ".

This Directive has been adopted under Articles 49, 57 and 66 of the original version of the Treaty

of Rome. Their immediate goals were, therefore, to promote the freedoms of

establishment and provision of services through the recognition of diplomas,

thus avoiding discrimination by virtue of nationality, although it invoics

fundamentals related to sustainable development and quality of life (cfr. a

original version of Article 2º of the Treaty of Rome). Within the Community, it is emphasised yet,

in this context, the (current) Article 151 of the Treaty of Rome, which points to the need for

conservation of the cultural heritage of the Member States and which is the basis of the Programmes

URBAN and RAFFAELO (cfr. L. F. COLSTEEL ANTUNES, Urban Law , Coimbra,

2002, p. 214).

Portugal would come to transpose this Directive for internal planning in 1990 (DL 14/90, de

January 8), which has come to make it even more blatant the dysfunction that Decree No

73/73, of February 28, constitutes. Not only is it in the face of a violation of the spirit of

Directive 85/384-to the extent that harmonisation is worth only for the outside-,


how from your text-given that you are calling for the need for academic training and exercise

professional of the architecture according to assumptions not observed in Portugal. By

other words, the quality requirement in training and accountability in the exercise alone

goes for the Portuguese that , mundane from a degree obtained in institution

portuguese, want to exercise the art of construction in a member state -there will have to if

subject to the recognition of your diploma-, entering into fair competition with

professionals who hold similar emitations. Should you want to exercise the profession in

Portugal, the standard of quality disappears and competition with professionals not

specialized and even disqualified is clearly disloyal.

What redunda in a blatant difference in treatment among Portuguese professionals

that they exercise in Portugal and those venturing out of their country of origin. This is about

a special and sadly curious situation of discrimination to the contrary (" discrimination

the rebours "), in so far as, by virtue of the unsuitability of the national legislation, there is

better and more prestigious conditions of exercise of the profession outside the Member State-member

of origin, in another Member State, than in that. In addition to being treated equally

what is different-for the Directive has underlying an intention legitimately

differentiator because based on an objective assumption (the quality of the training)-,

there is still a distortion of the conditions of competition in the community space,

particularly in the Portuguese territory, given that professionals from states-

members who wish to exercise in Portugal are required to compete with people without

proper training. Hence the maintenance in force of the DECREE NO. 73/73, 28 of

February, implies violation of article 10º of the Treaty of Rome (in addition to affronting the article

13º of the Constitution-to this problem will be returned in III. ), being Portugal subject to a

possible process by default in accordance with Articles 226 and following of that


c) The legal guidelines

If the Constitution and the Community Law are opposed to the maintenance of Decree No. 73/73, of

February 28, no less does it reveal its inadequacy in the face of ordinary legislation.

Whether in the preambles of several diplomas, whether in the joints, the legislator regrets the


state of the things, announces changes, but in the end it leaves almost everything in the same ...

Almost everything because, still, the regime of Decree No. 73/73 has suffered important

derogations, which the following refer to:

-the DL 205/88, of June 16 admits in the preamble the need for the Decree No. 73/73

suffer a deep and thoughtful review, " for finding yourself inadequate to the current

demands for quality and rigour why should be pauper the official qualification to be demanded of the

technicians responsible for the project of works ". Until one consumes this disigning, the lawmaker

starts by accauding the monumental heritage of the country, delivering the responsibility

exclusive to architects in the field of architectural projects concerning works of

recovery, conservation, adaptation or alteration of classified real estate, of

any type, location or use, and in the respective special areas of protection (article

3º). Article 8º establishes a transitional arrangements of six months from the beginning of the

diploma, during which " the municipal chambers can accept, exceptionally,

architectural projects drawn up and subscribed by qualification technicians other than the

of the architects, provided that there are no architects entered in the respective city hall

licensor ";

- the DL 292/95, of November 14, also reveals, in the preamble, the dissatisfaction of the

legislator in the face of the current situation. You can read that " an urban development

sustainable cannot be dissociated from the concerns of improving the quality of life in the

urban means, of appropriate framework of the buildings in the enveloping space and the

existence of recreation and leisure areas. (...) At the threshold of the twenty-first century it is not acceptable that

come back to emerge uncharacterised, massified and unquality urban areas. (...) There is that

take into consideration that, in recent years, it has increased the number of courses, delivered

in the Portuguese higher education institutions, specialisation lecturers in the areas of the

urbanistic planning and urbanism in general ".

Starting from these assumptions, the diploma requires the formation of multidisciplinary teams

for the elaboration of plans for urbanization and detail (Article 2º), integrated, in

rule, by " at least one architect, a civil engineer or civil technical engineer, a

landscape architect, an urban planner and a graduate in law, any of them

with effective professional experience of at least three years " (# 2). The No. 3 dispensation, in

certain situations, the intervention of the landscape architect, paragraph 4 alludes to the situations in which there is


technicians with more than one qualification, and paragraph 5 mandates the participation of all the

elements indicated in paragraph 2 where the drawing up of plans is concerned

safeguard and valorisation referring to classified buildings and their protection zones (in the

logic, incidentally, of the DL 205/88, of June 16).

Loadings are subject to identical discipline -that is, constitution of teams

multidisciplinary-, pursuant to Article 4º, although they provide for exceptions (which

correspond, fundamentally, to cases in which the area has already been the subject of conformation

regulating or does not present special complexities-No 3);

-the DL 167/97, of July 4, approves the regime of implantation of ventures

tourist, availing Article 10º/4 that the studies and projects of ventures

touristic must be subscribed by architect or by architect in collaboration with

civil engineer , duly identified.

The analysis of the set of these diplomas raises two brief observations:

-the legislator has full awareness of the social and economic need for reform of the

current system, in particular to the amendment of the regime instituted by Decree No. 73/73, of

February 28;

-in the absence of political courage to carry out a deep overhaul, the lawmaker has

coming to correct some more blatantly inappropriate situations, in a way something

shamed and even random: for example, what the reason for the imposition of the intervention

of architect in the elaboration of a touristic venture project, and of its dispensation

regarding a project of public building (hospital, school, court)?

The inconsistency of the system reached its peak with the approval of the DL 176/98, of July 3

(Statute of the Order of Architects) . It is that this diploma, in the line of article 3º of the

Directive 85/384, defined, in Article 42º/3, the "own acts of the profession" of architect

as being:

" studies, projects, plans and activities of consultancies, management and direction of works,

planning, coordination and evaluation, reported to the field of architecture which


covers edification, urbanism, the design and design of the spatial framework of the life of the

population, aiming at the harmonious integration of human activities in the territory, the

valorisation of built heritage and the environment ".

These acts integrate what you can call a function reservation , that is, they are acts

and activities that must be performed in exclusive by architects (article 42º/ to 1). The

article 43º/2/a), which elves the rights of architects, reiterates this idea, disposing of the

architect is entitled to exercise the profession, " in accordance with its vocation, training and

experience, without interference in their technical autonomy, nor competition from professionals

without proper training " (underscore our).

The principle of prohibition of competition by individuals without the formation of architect is

here expressly consecrated: however, the legislator did not take away from it all the consequences

due; it did not prohibit the others the (illegal) exercise of the architecture; but imposed

increased responsibilities to architects! Namely, the architect must, on the terms

of Article 47º:

" a) To act in such a way that your work, such as artistic and technical creation, contributes to

improve the quality of the environment and cultural heritage;

b) Use the processes and adopt the solutions capable of ensuring the quality of

construction, welfare and the safety of people;

c) Favoring social integration, stimulating participation of citizens in the debate

architectural and in the decision-making process in everything that respects the environment ".

The coexistence between these provisions and the regime of Decree No 73/73 of February 28,

becomes truly impossible. In fact, how to explain that the ' own acts of the

profession of architect " can be practiced by other professionals, maxime without

specific training? The revocation (tacit) seems unquestionable, by virtue of the obvious

incompatibility. The inertia of the status quo was, however, stronger and the rules of the Decree No

73/73, of February 28, continue to be considered law in force in the market of

construction ...


The recent and renewed legislation on the licensing of private works constitutes a

last argument supporting the thesis of the (need for) express revocation of the Decree No

73/73, of February 28. Article 10º of the DL 555/99 of December 16 (the subject matter of

changes and republished by DL 177/2001, of June 4), provides that:

" 3. They can only subscribe to the projects the technicians who find themselves enrolled in association

public of a professional nature and to make proof of the validity of your enrolment when

of the submission of the initial application, without prejudice to the provisions of the following number.

4. Technicians whose activity is not covered by public association may

subscribe to the projects for which they possess appropriate habilitation, under the terms of the

provisions of the scheme of professional qualification required of the authors of works projects

or in special legislation relating to officially recognized public body ".

If paragraph 3, when admitting the exceptions set out in paragraph 4, leaves seemingly the door open to the

continuation of the current situation-of exercise of the profession of architect by people not

suitably qualified-, the attentive analysis of this device seems to leave no doubt

as to the remoteness of the regime of Decree No 73/73 of February 28. Repair: us

cases not covered by paragraph 3-which acknowledges a reservation of activity in relation to the

specific training-, what succeeding is that the person will be able to " subscribe to the projects for

them which posits appropriate habilitation ". That is, a sketcher will be able to perform drawings,

a civil builder will be able to proceed to the physical implantation of the edification; already an engineer of

mines, in contrast, does not have any kind of appropriate habilitation within the scope of a

construction project of buildings, soon, will not be able to intervene in the process. The ability to

exercise measures in terms of professional qualification, what redunda in a obligation

of respect by the cast of own acts of the profession, when they exist: in a positive way

-there are to be ascribe certain tasks to certain professionals-, and in a negative way -there is

prevent, for reasons of public interest, the exercise of these tasks by those who do not

qualification to perform them.

Dir will: this interpretation leads to that a whole set of people who so far, covered it

of an outdated and harmful regime, they exercised activities for which materially if


they do not find it enabled, stay unable to continue to do so, with serious

damage to your professional and personal life. This conclusion is aggravated when

we note that the legislation to which you rent paragraph 4-the " Professional qualification scheme

Demanded to the authors of works projects "-does not exist. Which means that not these

people can continue to develop their work in the molds in which they made it so far,

nor do they have a chance to do so in other terms, in the face of the lack of the legislation

referred to.

In conclusion:

1) Only a clear outlet of the legislator in the sense of the express revocation of the

Decree No 73/73 of February 28, may put an end to the situation of complete disjoint

legislative which currently lives;

2) The revocation of Decree No. 73/73, by the socio-professional implications it will have, should

be accompanied by appropriate legislative measures that will ensure the professionals who

up to now, without material fitness for so much but covered in permissive legislation,

subscribed to construction projects, the possibility of applying their experience in

domains in which this is admissible and useful.

III. The position of unqualified professionals holders of "acquired rights",

in the face of the revocation of Decree No 73/73, of February 28

The issue of the revocation of Decree No. 73/73 of February 28 has always been merited, by

part of professionals with other qualifications other than architects and civil engineer,

strong contestation. It is almost thirty years of professional exercise in the construction business, the

covered in an obsolete regime, is certain, but that were cementing a practice that

covers a vast number of people. It remains to be seen whether the mere course of time-that neither

does not even equate to a constancy of the de facto assumptions that justified the creation of the

initial regime, in 1973-legitimising the invocation, by professionals without training

specific in architecture, of a right to perform tasks-namely, the underwriting

of architectural projects-for whose exercise the legal system complains skills


specific. Several are the arguments that compete for the negative answer:

1. The deficiency situation of skilled professionals who lived in the early 70

has been overtaken. Today there is a considerable number of institutions of higher education,

Public and private, which grant the degree in Architecture [v. supra , II. 1. a)].

However, the graduates see themselves, by virtue of the regime of Decree No. 73/73, of 28 of

February, forced to run in the labour market with professionals without training

specific in Architecture but to which they are legally recognised aptitudes to

play own acts of the profession of Architect. The disappearance of the

de facto assumptions of the law would, in and of itself, be sufficient to justify the statement of its

decidution, at least from the 80. But worse than keeping a law alive

clinically dead , is to feed the duration of an unconstitutional law that surrounded

unjustifiably the freedom of access to the profession (Article 47º/1 of the Constitution);

2. It's that it is not admissible that whoever has training does not have work, and who does not

training have work : the Decree No. 73/73 connates currently a restriction

unnecessary, disappropriate and excessive freedom of exercise of the profession with a view to the

which, with personal and economic costs, has obtained a specific training and which, after all,

if it cannot develop properly, by virtue of the distorting of the conditions of

competition (Article 18º/2 and 3 of the Constitution). To exist conflict of rights, there will be

always to be resolved in favour of who was able to obtain the necessary specific training,

in view of the responsible and qualified exercise of the profession;

3. The maintenance of the regime of Decree No. 73/73 far beyond the time of its

need led to a blatant and continued violation of the principle of equality

(article 13º/2 of the Constitution). In fact, and above all from the late 80

(when the number of architects rallying already the 4,000), the legislator, ignoring the

constitutional, community and even legal arguments (by several times invoked),

have consented to continue to consider equal what should go through to be treated differently.

The objective reasons of the equalisation-the deficiency of qualified professionals-

have disappeared, and hence that also the justifying foundation of the equiparation of treatment

if it should give out by lapse. We are thus in the face of a clear situation of violation of the

principle of equality-maintenance in force of a system of equalisation without


objective grounds;

4. Please note yet another unconstitutionality, which translates into the mismatch between

the regime of Decree No. 73/73 of February 28 and the cast of the tasks of the relative state

the protection of the environment and heritage-already not to mention the security of the buildings,

to be held to the general duty of prevention of danger incumbent on the State and its

Administration (articles 266º/1, 199º/g), and 272º of the Constitution). The degree conncia

-reiterates: at least since endings of the 80 (height in which its revocation

has started to be pointed out as a priority by the legislator itself)-, a regime

disappropriate and harmful to the tutelage of fundamental community values, all the more so

serious for making it impossible, wants the promotion of the quality of life of the present generations, wants the

creation and preservation of the cultural heritage of future generations.

These considerations lead to the conclusion that there are no rights

purchased from tutelar, for the simple reason that, resonated the exceptions that the Constitution

predicts (in article 282º/ to 3), there are no acquired rights arising from unconstitutional norms

(v. RUI MEDEIROS, The decision of unconstitutionality, Lisbon, 1999, pp. 620 segs). And

nor to say, in the lack of acquired rights, that the construction professionals must be

recognized legitimate expectations for a long transitional period until the cessation of

application of Decree No. 73/73, after its revocation: please note that this, in addition to translating

in a duty, generically recognized, of reposing social truth, constitutes a

constitutional and community imperative that has long been complained about, a fact that the

removed from the surprise factor that would have in other circumstances.

However, on the one hand, the non-existence of a long transitional period is not equivalent to the absence

of any period of adaptation to the new reality of the labour market. A tutelage,

yet still reduced, from the continuity of professional situations, is a realization of the

principle of legal certainty, corollary of the principle of the State of Democratic Law

(article 2º of the Constitution). On the other hand, the establishment of that time of adaptation does not

must eximir the legislator from passing a professional qualification scheme in the field of

construction, in order to rerouting the various professionals for the tasks that are

materially apt to perform.


Right is that the architects will not be able to continue to bear the costs of legislative inertia,

while the remaining "operators" of the construction art market take advantage,

precisely, of the strength of that inertia. Professional architects, whether the Portuguese or

the coming from Member States of the European Union whose diplomas meet the conditions

of recognition set out in Directive 85/384, they must see to them the

exclusive of the design of architectural projects, in the name of the public interest and the

prestige of the profession.

IV. The Resolution of the Assembly of the Republic No. 52/2003 of May 22

Following an initiative of the Order of Architects to the Assembly of the

Republic, concretized through petition # 22 /IX (1ª), towards the revocation of the

Decree No 73/73 of February 28, the Parliamentary Committee on Public Works,

Transport and Communications approved, on April 8, 2003, by unanimity, the

conclusions and the opinion of the final report, drawn up by the honourable Mrs Isabel Gonçalves.

The main findings of this report are those that follow if they are transcribing:

" 1) The object of the petition in question has grounds and its delivery will bring benefits

for the quality of life of each citizen and of their community;

2) The right to architecture is a logical consequence of the rights to housing and urbanism

and to the environment and quality of life enshrined in the Constitution of the Portuguese Republic;

3) The maintenance of the transitional regime enshrined by the Decree No. 73/73, 28 of

February, implies the existence of a technical-professional and legal inconsistency, with a

resignation of the State with regard to the regulation of the construction and quality sector

architectural, for the protection of the environment and heritage, preventing the exercise of the

profession of architect in an environment of legal tender;

4) The maintenance of this decree is inconsistent with the Directive No 85 /384/CEE, of the

Council, of June 10, 1985, and with the Decree-Law No. 176/98 of July 3,


compromising the coherence of the whole system, a new regime being urgent

professional qualification in the construction sector for the regulation of a sector of

activity of vital importance for the Country;

5) It matters, finally, to reflect also on the position of professionals

with other qualifications, which currently safeguarded by the Decree No

73/73, of February 28, may subscribe to projects for architecture, the

who should be conferred a time of adaptation and the possibility of being

re-routed to the tasks that, according to respective

qualifications, are materially able to perform;

6) There are no acquired rights or legitimate expectations to be protected,

it should, however, be recommended to be defined a reasonable period of

transition, to reroute the professionals recognized by the Decree No

73/73, of February 28 ".

The Assembly of the Republic, on the basis of the transcribed findings, approved, on May 22

of 2003, Resolution No. 52/2003, in which it " recommends the Government to have them in due

consideration and take the appropriate steps to bring it to the realization ".

This recommendation, unfortunately, has not yet had an echo in concrete legislative measures. Such

inertia contributes to the exacerbation of the urbanistic anarchy in Portugal and undertakes,

internally and internationally, the state. Namely, the concurrent violation of

constitutional and community provisions uncredit the image of the legislator in face

of the population and makes it a potential target of the sanctionatory action of community bodies.

V. Fulfillment of Art. 4 of Law No. 17/2003 of June 4 (Law of the Initiative

Legislative of Citizens


The present diploma does not entail any economic and financial burdens for the

State, so it does not involve, in the current economic year, increase in expenditure or

decrease in the revenue provided for in the State Budget.

Thus, taking into consideration everything that precedes it, the following presents itself.


OF DECREE NO. 73/73, of February 28

Article 1º

(Architecture projects)

The elaboration, underwriting and appreciation of architectural projects competes exclusively

the architects, validly inscribed in the respective professional Order or holders of

statement issued pursuant to Article 12º/2 of the DL No 14/90 of January 8.

Article 2º

(Approval of a professional qualification scheme)

The Government must approve the professional qualification scheme of the remaining professionals

of the construction within one year after the entry into force of this degree, after consultation of the

associations representing the interests of all.


Article 3º

(Transitional provision)

Municipal chambers will be able to continue to accept unsubscribed architectural projects

by architects up to three years after the entry into force of this diploma, as long as its

authors prove that, at the date of the publication of the present diploma they had already submitted, in the

chambers where they are enrolled and for period not less than five years, projects of the

same nature per se subscribed to, which deserved approval.

Article 4º

(Rogatory disposition)

This diploma repeals all the provisions of Decree No 73/73 of February 28, which with

it are incompatible.


Citizens Legislative Initiative

Architecture: A right of citizens, an own act of the architects (Rogation

partial of Decree 73/73, of February 28)


1. Arq. st Helena Roseta, President of the Order of Architects

2. Arq. Manuel Vicente, Vice President of the National Governing Board

3. Arq. Joao Afonso, Secretary of the National Governing Council

4. Arq. Tiago Mota Saraiva, Treasurer of the National Governing Council

5. Arq. Pedro Milharadas, Vogal of the National Governing Board

6. Arq. João Pedro Serôdio, Chairman of the Northern Regional Governing Council

7. Arq. nd Leonor Cintra Gomes, Chairman of the Southern Regional Governing Board

8. Arq. Carlos Guimarães, Chairman of the Bureau of the General Assembly

9. Arq. João Belo Rodeia, President of the National Board of Delegates

10. Dr. João Miranda, Legal Adviser to the National Governing Board


Order of Architects

National Directive Council

Travessa of the Carvalho, No 23

1249-003 Lisbon

Tel.: +351 21324 10/11/2015

Fax: +351 21324 11 01