Key Benefits:
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DRAFT LAW NO. 183 /X
EXHIBITION OF REASONS
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outdated and have been replaced with arguments justifying the speedy revocation of the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.
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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
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31).
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
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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
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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
imperative.
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
Port;
-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;
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-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
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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
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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
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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,
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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
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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
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-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
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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
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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
construction;
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-,
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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
Treaty.
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
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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
17
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
18
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 ...
19
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
20
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
21
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
22
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.
23
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,
24
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
25
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.
DRAFT LAW FOR REVOCATION (PARTIAL)
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.
26
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.
27
Citizens Legislative Initiative
Architecture: A right of citizens, an own act of the architects (Rogation
partial of Decree 73/73, of February 28)
REPRESENTATIVE COMMISSION
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
HOUSEHOLD
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
e-mail: cdn@ordemdosarquitectos.pt