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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1 DRAFT law No. 183/X EXPLANATORY MEMORANDUM the Decree 73/73, 28 February, came to recognize the architects, civil engineers, engineering technicians and agents, builders and even, in certain circumstances, other professionals without any qualification, competence to subscribe to architectural projects. The reasons for your approval — and deserved it, the date, the correlation of the National Union of Architects — are now outdated and were replaced by arguments that justify the rapid withdrawal of the diploma, which, incidentally, has already been promised several times and even officially assumed (see, for example, points 3 and 4 of the joint decree of the Ministers of planning and Territory administration , and of public works, transport and communications, 27 March 1986, and the preamble of DL 205/88, of 16 June). It is about fundamentally is return and reserve the Architects skills whose only exercise your special qualification justifies and demands. In addition, it is to ensure the adequacy between the Portuguese reality and the community, avoiding the perpetuation of inequality with economic and cultural consequences very negative. Finally, we must ensure to generations present the fruition of a built heritage of quality, and come a aesthetic legacy with which to identify.

2 I. The reasons for the adoption of Decree No. 73/73 on February 28, according to the white paper on housing policy in Portugal (EH, 1993), "by the end of the 50 years, the prevailing paralysis in Portuguese society made the shortcomings were more qualitative than quantitative in nature: bad living conditions, reduced standards, lack of infrastructure and equipment , and a sharp deterioration of buildings by the absence of conservation measures. The industrialization made the urbanization of the population and the demand for a more productive housing policy. Housing production has always been in short supply during this period. In 1960, with the construction of less than 27,000 fires, Portugal was on the tail of Europe with annual production of 3.26 fires per 1,000 inhabitants "(p. 30). This panorama matches the logic of the Estado Novo regime, characterized by austerity and by authoritarianism. The Government spurned the built heritage preservation for the domicile of the common citizen, and bet on the achievement of major public works as symbols of the system (e.g., the profound urban renewal in the area of Bethlehem with the exhibition of the Portuguese World, the construction of the bridge (Salazar) on the Tejo). The attention to architectural aspects was limited, therefore, to public buildings, national monuments (and other buildings of public interest) and their protection zones. The construction and alteration of these buildings should be subject to mandatory projects signed by architects (maxime, if the piece had recognized architectural value) or by civil engineers, unless they were "works of architecture and simple construction" (cfr. Decree-Law No. 23511, 26 January 1934, 39600, of 3 April 1954, and no. 40388, November 21, 1955). "However, the 60-year-old mark, in Portugal, the awakening to the industrialization and the urbanization process accelerate correlative. The logic of this process imposed, from the end of the Decade, a speech and institutional measures in favor of a housing policy more productive (...) Land speculation met your «golden era». The increase of the income of the middle classes, tourism revenues and remittances from emigrants, so booming, led to a strong increase in demand and the bank liquidity, which was forwarded, essentially for land transactions and real estate "(white paper on housing policy in Portugal, cit., pp. 30 and 31 3). It is in this context that the DL 166/70, of 15 April, introducing new rules on the licensing of private works. As stated in paragraph 1 of its preamble, the spirit of the diploma disciplinarian ranged from two coordinates: on the one hand, the promotion of urban construction, "in order to facilitate the satisfaction, which depends on compelling, social and economic needs" and, on the other hand, to guarantee the safety, hygiene and aesthetics of buildings. The acceleration of the licensing procedure, among other things, the transfer of responsibility for compliance with technical regulations, General and specific, to authorities the authors of projects, restricting the Administration's examination "to the outer aspect of the project, your insertion in the urban environment, its height, your compliance with the plan or anteplano of urbanization and its regulation can abbreviate "(paragraph 3, and article 10). This amendment stated, meant an investment of confidence in authors of the projects, which had correspondence on the requirement of establishment, by the Minister of public works, the official qualification required of technicians responsible for projects, heard the Minister of National Education and the corporate bodies (cf. Article 4/1). The population pressure (with high birth rates, a result of the economic recovery of 60 years), the rapid growth of metropolitan areas of Lisbon and Porto, who joined the progressive influx of returnees from the (ex-) colonies of a band, together with the reduced number of Architects (in 1969, were little more than 500 Architects registered in the Union), of another band forced the legislature to lower the bar of quality and compromise, so the result of the vote of confidence he had made in 1970. We're obviously talking about the approval of Decree No. 73/73, 28 February, fruit at the same time, the growing demand for new homes and the reduced offer of those professionals who, with more quality, you could match. In essence, through Decree No. 73/73, the Government, supported by a Report of a Committee where representatives of the order of engineers, the National Union of Architects, the National Union of Engineers, Engineering technicians and Agents, and the National Union of Builders, widened the spectrum of professionals able to underwrite construction projects and 4 urbanization studies in order to ensure the existence of technicians in sufficient number to correspond to the increase in demand. In addition to the civil engineers and architects, was also recognised qualification for the performance of such tasks the civil engineering technicians and agents, builders graduates, as well as other graduates in engineering or technical architecture, recognised by the respective professional bodies (see articles 1 and 2 of Decree No. 73/73). The diploma was still a second (and third) extension, a transitional provision (article 6): while I wasn't set by professional bodies the award scheme of degrees of specialization, the councils could continue to accept technical authoring projects whose qualifications do not obey the parameters fixed, since come doing for at least five years (paragraph 1). And, on the other hand, in the absence of any technicians and to cope with the demands of the housing market, the cameras could even accept projects by unskilled persons, since domiciled in the respective territorial circumscription and while kept such grace period (paragraph 2). It is true that certain tasks were reserved, because of their special characteristics, to qualified professionals. Was the case of the "projects of technical complexity or high economic value involving the use of non-current features solutions", which established the compulsory intervention of civil engineers (4/2). Or the situation referred to in paragraph 4 of article 3, which requires the intervention of architect "in the projects of new buildings and existing buildings change, involving modifications to your plastic expression, in the areas approved by the Government for this purpose, acting on a proposal of the municipalities concerned. However, even these "exceptions" not allow consider that secured the advertised requirement and promised accountability standards for DL 166/70: the terms used by the legislator are, on the one hand, too vague (e.g., who defines the degree of technical complexity? what are features not chains?) and, on the other hand, the discretion of the Administration is too wide and abandon altogether the cameras the initiative to promote architectural quality of the buildings (one of the rare examples of implementation Article 4/3 is the gatehouse 1442/95, of may 30 November, relating to the old areas of the city of Esposende and the village of Fao — cfr. ANTÓNIO CORDEIRO, architecture, 5th Edition, 2000, p. 25, note 6). This legislative framework came however to suffer on time — and recognize important — derogations over its already almost thirty years of life. However, they were not sufficient to make it compatible with the current reality, not from the social point of view, nor legal. The repeal of Decree No. 73/73, 28 February is, at various levels, an imperative.

II. The reasons for the need for repeal of Decree No. 73/73, 28 February 1. Social reasons: a) the extension of the offer to the level of academic qualification exists today in Portugal a considerable number of institutions of higher education providing the architecture course. According to information provided by the order of architects, in June 2002 the recognized courses are:-course degree in architecture from the Faculty of architecture of the Technical University of Lisbon;
-Course degree in architecture from the Faculty of architecture of the University of Porto;
-Curso de Licenciatura em Arquitectura da Faculdade de Ciências e Tecnologia da Universidade de Coimbra;
-Curso de Licenciatura em Arquitectura da Universidade Lusíada;
-College of architecture at the Escola Superior Artística do Porto;
-Course of Artistic School of Architecture Technologies of Coimbra;
-Course of architecture of the Institute of Mathematics and management;
-Architecture of the Universidade Lusófona de Humanidades e Tecnologia; 6-Urban Management Architecture course at the Faculty of architecture of the Technical University of Lisbon;
-Course of Urban and Territorial Planning Architecture from the Faculty of architecture of the Technical University of Lisbon;
-Curso de Licenciatura em Arquitectura Independent University;
-Curso de Licenciatura em Arquitectura Autonomous University;
-Course degree and urbanism of the Escola Superior Gallaecia;
-Course degree in architecture of Dinensino-Setúbal;
-Curso de Licenciatura em Arquitectura da Universidade Moderna;
-Curso de Licenciatura em Arquitectura da Universidade do Minho.

So you understand the evolution of the number of architects, from the aforementioned five hundred by the late 70 's, to the more than 10,000 currently enrolled in the order, the accruing as many frequency phase and completion of the degree.

b) generalization of interest in issues relating to urban renewal In 1984, wrote the architect JOHN KINGS, in an article under the heading Responsibility and exercise of the profession: "you could say that the cultural and civilizational development characteristics in southern Europe, and particularly in Portugal, not promote the extension of the work of architect beyond the label" classical art "man , whose participation, perceived as a luxury, only be justified in exceptional works. Leaving the historical explanations, such wastage results today, in large part, from the deletion of the cultural dimension in the immediacy and poverty of the vast majority of current achievements and a lack of awareness about the importance of the intervention of the architect could have through the impact that this would have on the long term cultural development, social and even economic, of the community "(in the architects Journal , Nos. 27/28/29, 1984, p. 7). With the rejuvenation of the population, with the elevation of educational level, and with the opening to the world afforded by membership of the European Union, the panorama is today, fortunately, other. In fact, the Portuguese population is increasingly motivated to the issue of urban renewal 7. See the enthusiasm that General an initiative like the EXPO 98, which transformed the eastern coastline of the city of Lisbon — and currently is a leisure zone of the capital — or the popular reaction to the controversial idea ready to build an elevator to the castle of s. Jorge, to deploy in the Martim Moniz. Please remember the expectations created around the cultural facilities resulting from the Porto 2001, notably the (still unfinished) House of music, despite the huge inherent disorders works. Remember the satisfaction with that people, in General, have received the interventions related to the Polis Programme (resolution 2000/26, of 15 May). The beauty of the buildings, the arrangement aesthetic of cities, the preservation of the cultural heritage — beyond awareness, in-depth, simultaneous to the problems of urbanism and environment — are no longer seen as luxuries, to integrate the notion of quality of life of the ordinary citizen.

(c)) the need for credibility of the professionals of the construction industry professionals linked to the construction sector, partly as a result of the existing legal framework, are among the most badly seen by the public. Deterioration of emblematic areas of cities (e.g., the Avenida da Liberdade, in Lisbon), the moth of violence, these buildings (for example, with the installation of air-conditioners in the exterior façades), true anarchy of styles and degradation of the landscape built in rural areas, are some of the factors contributing to the poor image indiscriminately of professionals (and professionals) linked to the construction business. The general idea is that the sector — especially in areas of strong speculation — is "the loot", dominated by the Empire of money, and not for the reasons of aesthetics and safety of buildings, or the urban and environmental quality. Decree No. 73/73, 28 February, if had, at first, a social and economic justification, turned out to support situations of "professional qualification by Decree" beyond necessity, which were turning to exception in rule, condemning ostracized actually qualified professionals for the design of construction projects. The illustrative purposes, contrasting the results of a survey carried out by the Superior Council of public works in the period between 1974 and 1984 8 (in Journal of architects, paragraph 26, 1984, p. 6). For a set of projects, the authorships 66,626 were divided as follows: = 4.1% Architects civil engineers = 30% of civil engineers and mining = 45.9% = 13.9% Other builders = 6.1% These data helps to understand the negative situation reached in Portugal and it is more than urgent to reverse.

2. Legal reasons: the) constitutional guidelines to develop the taste for architecture in Portugal and the diffusion of your top level education is primarily a result of the State's concern with the values of environmental protection in the broad sense; Secondly, and in the light of what precedes, equals a State recognition of the relevance of the specialized training that that is an essential component of real estate assets. Finally, thirdly, the awareness for the architectural quality of the exterior spaces is a form of democratization of culture and increasing the quality of life.

1. Since 1976 that environmental protection is part of the set of tasks of the State (cf. Article 66, in your original version). In article 66/2 of our Constitution, which adopts a broad concept of environment (see also the definition in subparagraph (a)) of paragraph 2 of article 5 of framework law on the environment-law No. 11/87 of 7 April), urge the State and other public and private entities to promote the "appreciation of the landscape" in part 9 of the land use planning [subparagraph (b))]; the "preservation of cultural values of historical or artistic interest" [paragraph (c))]; the "environmental quality of settlements and of urban life, especially in the architectural plan and the protection of historical areas" [(e))]. All this in a logic of sustainable development and the resulting compliance with the principle of intergenerational solidarity [subparagraph (d))]. Thus, the Alliance between quality of life, sustainable development and protection of environmental values, understood in a broad sense — that is, encompassing the humanly constructed environment (see, in this idea, article 20 of the framework law on the environment) — is fully assumed by the Constitution. The promotion of the quality of life of the members of the community, within the framework of a sustainable development strategy, is one of the tasks of the State (article 81) of the Constitution). Sustainable development is therefore the guiding macroprincípio of the action of the welfare State in the rational management of collective enjoyment, present and future. In the words of BASSOLS EAT, "the desideratum of sustainable development not only calls into question traditional town planning schemes as regards allocation of uses of soil, the edificatórias, the typologies volumes and densities, in whatever dispute immediately with the forms of space living (housing, equipment, transport infrastructure, energy consumption), as also has multiplier effects on environmental resources (water , air, natural resources) of such intensity that can become unviable, the ecological point of view, the urban development projects or interior reform of cities "(Panorama del Derecho español: balance y Urban perspectives, in Legal Magazine of urbanism and environment, 1998/9, pp. 55 secs, 72). To confirm this analysis, refer to ring-fencing of the values of the urban ordering in 1997 constitutional revision, in paragraph 4 of article 65. The essential connection between architecture and urban space management is synthesized in an exemplary way by MAX QUERRIEN: "on architectural space, each point is connected to everyone else by a set of subtle relationships, which is always fatal disregard. There's not a single space. The protection of the monument does not stop at the outer surface of your walls. The architecture is not the world of objects but rather the world of relationships. And relationships are everywhere "(quoted by m. HUET, Le droit de l'Architecture, 2nd Edition, Paris, 10 1990, p. 65 — highlighted our). The architect should be recognized the role of coordinating, through a double participation — in the urban planning and architectural projects — the buildings and their surrounding scenarios, giving a significant cohesion to built heritage.

2. Any architect is a creator, but not all designers are architects buildings projects. Freedom of cultural creation is recognized to all citizens by the Constitution (article 42); However, architecture is an art and a technique that entails responsibilities of such social relevance that your exercise should be reserved for those who have higher education in the specialty. More than one exterior decorator, a mere pretty, the architect responsible for designing edificatórios projects that combine the aesthetics to the safety and comfort of those on them will reside and that 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 necessity of creation of the order of Architects (through 176/98 DL, of 3 July, and as a result of the Association of Portuguese Architects, created by DL 465/88 of 15 December). Are "special needs" (cfr. Article 4 of the Constitution Day 267/) for the restriction of freedom of Association in the name of values of fundamental relevance to community members. "The constitutional reference to satisfy specific needs is a corollary of the principle of necessity and proportionality: correspondence of the limitations to freedom of Association to the benefits deriving from the State Organization, as well as balance between the sum of powers to give to the public association and the global sense of the public interest the State primary. The intervention takes place through professional bodies assumes the public interest to safeguard the advantages that the profession can provide to the community. It is not enough, therefore, any invocation of public interest, because the ' collective interest ' is formed by a multitude of public interests of intensity and scope vary widely. Becomes essential that restrictions on freedom of Association and the professional activity support the invocation of a public interest 11 important enough, manifested in collective life situation in plunging the profession. Only a first important public interest can justify the creation of a public association. «We do, for example, when there is need to enforce a code of honor or of ethics required by particularity or delizadeza certain functions» "(DIOGO FREITAS DO AMARAL and RUI MEDEIROS, unpublished Opinion on the admissibility of a constitutional order of Journalists, 1992, pp. 13 and 14). The recognition of the social importance of architecture, practiced by increasingly professionals, thus the finding, by the State, the legal significance of establishing ground rules of access and exercise of the profession, through an associative base body with internal democratic mechanisms. In line with this, it must be concluded that only can (legally) exercise the profession of architect who possess the qualifications required in the light of the criteria set out in the order. Is that, if the order was created to regulate the conditions of access to and exercise of the profession of architect, with any requirement and rigor that the public complains, and it can only join who fill out the necessary requirements, what sense does it make to continue to accept out of it and without fill these requirements, other people, not having the degree in Architecture continue to perform duties materially identical to the reserved, at 176/98 DL, of 3 July, to architects? It should understand that who graduated in architecture and therefore not admitted to the order of architects, performs duties materially identifiable as acts of architecture, makes illegally [v. infra, b) and (c))]? It is clear that, as a nurse can't prescribe prescriptions, and a solicitor is not allowed legal sponsorship — would be illegal exercise of medicine and advocacy — nor to unlicensed persons in architecture be recognized the right to subscribe to architectural projects — under penalty of a situation of illegal exercise of architecture.

3. The architecture aims to capture the aesthetics of a time, imortalizando it into functionally able to real estate creations serve the purpose — commercial, industrial, housing 12 — for which they were designed. An architect is a creator of this in view of the future: on the one hand and in the first line, the architect/Builder designs buildings to provide an immediate use, in conditions of safety and comfort, but on the other hand, and in the second line, the architect/artist interprets the your time and applies this reading to a space, inserting a memory , which is perpetuated by future generations. The architect has, this time, a dual responsibility: cousin, satisfy the immediate consumer of your art, in formal terms and qualitative material; Second, leave a significant mark for future generations. In the formula of the European Charter for expressive architectural heritage, adopted in 1975 at the Congress of Amsterdam, within the Council of Europe, "the embodiment of the past in the architectural heritage constitutes an environment essential to the balance and to bloom (...) It is an essential part of the memory of the men of today and be transmitted to future generations, (...) humanity would be amputated part of the consciousness of your own duration "(cit. by Philip MARCHAND, defense and preservation of heritage, in urban planning Law, INA, 1989, pp. 55 et seq., 61). The architecture, the art aspect of your exterior, is a privileged vehicle of democratization of culture and promotion of quality of life (cf. articles 73/3 and 78 of the Constitution). She transmits to the citizen a sense of belonging to a space, stimulates your social sensitivity, anyway, is a "life-giving element of common cultural identity" (article 78/2/c) of the Constitution). For the built heritage is the cultural heritage of tomorrow, that we review and through which we want to be remembered, there is an urgent need to assign and reserve to architects to design global function space built. In a Word, it is necessary to reserve the exercise of architecture for professionals with specialized training. This is the only way to fulfill the constitutional designs.

b) Community guidelines "whereas the architectural creation, the quality of buildings, the harmonious insertion in your surroundings, respect for natural and urban landscapes as well as collective and private heritage are in the public interest; Whereas, therefore, the 13 mutual recognition of diplomas, certificates and other evidence of formal qualifications must be based on qualitative and quantitative criteria which ensure that the holders of diplomas, certificates and other evidence of formal qualifications recognized are able to understand and translate the needs of individuals, social groups and communities with regard to the organisation of space, design, organisation and implementation of buildings, conservation and enhancement of the built heritage and the protection of the natural balance "— these and other reasons have led the Council of the European Community to adopt the Directive 85/384 of 10 June (published in the official journal of 21 August 1985 — the quote is of recital 4). The intention could not be more clear: it is to ensure that the art of building, or as identifying element of European culture, or as appropriate, construction technique is carried out in all Member States, by professionals whose training complies with identical parameters. The text of the directive looms ahead, by your importance in determining the core functions of the architect, article 3, which transcribes: "training that lead to obtaining the diplomas, certificates and other evidence of formal qualifications referred to in article 2 shall be provided by a university-level school of architecture will be the main element. This teaching should maintain a balance between the theoretical and practical aspects of architectural training and guarantee the acquisition: 1) The ability to create architectural designs that satisfy the aesthetic and technical requirements; 2) an adequate knowledge of the history and theories of architecture and the related arts, technologies and human sciences; 3) a knowledge of the fine arts as factors that may influence the quality of architectural design; 4) an adequate knowledge in the field of urban design, planning and the skills involved in the planning process; 5) the ability to grasp the relations between, on the one hand, the man and the buildings and the architectural creations and your environment, as well as the need to relate buildings and the spaces between them on the basis of the needs and the 14 human scale; 6) understanding of the profession of architect and your role in society, in particular by preparing briefs that take account of social factors; 7) a knowledge of the methods of investigation and preparation of the construction project; 8) knowledge of structural design issues, construction and civil engineering related to the design of buildings; 9) an adequate knowledge of physical problems and technologies and of the function of buildings so as to provide them with internal conditions of comfort and climate protection; 10) technical capacity that allows you to design buildings that meet the requirements of users, within the limits imposed by the cost factor and building regulations; 11) an adequate knowledge of the industries, organizations, regulations and procedures involved in the implementation of projects in construction and in the integration of plans in planning ".

This directive was adopted under articles 49, 57 and 66 of the original version of the Treaty of Rome. Its immediate objectives were, therefore, to promote the freedom of establishment and freedom to provide services through the recognition of diplomas, thereby avoiding discrimination on grounds of nationality, invoke grounds related to sustainable development and quality of life (cfr. the original version of article 2 of the Treaty of Rome). Within the community, highlight, in this context, the (current) Article 151 of the Treaty of Rome, which points to the need for preservation of the cultural heritage of the Member States and which is the basis of the URBAN Programmes and RAFFAELO (cfr. L. f. COLAÇO ANTUNES, urban law, Coimbra, 2002, p. 214). Portugal was to transpose this directive into internal planning in 1990 (DL 14/90 of 8 January), which came to make it even more glaring the dysfunction that Decree No. 73/73, of 28 February. Not only is a violation of the spirit of Directive 85/384 — to the extent that harmonisation is only abroad — as the text your 15, — as it calls for the need of academic education and professional practice of architecture according to assumptions not observed in Portugal. In other words, the demand for quality in training and accountability in financial year goes for the Portuguese who, armed with a degree obtained in Portuguese institution, please engage in the art of construction in a Member State — there will have to be subjected to the recognition of your diploma — in loyal competition with professionals who have similar qualifications. If they want to exercise the profession in Portugal, the quality standard disappears and the competition with non-specialised professionals and even disqualified is clearly unfair. What is a blatant difference in treatment between the Portuguese professionals engaged in Portugal and those who venture out of your country of origin. This is a special and sadly curious situation of discrimination contrary to ("discrimination a rebours"), in so far as, by reason of the inadequacy of national legislation, there are better and more prestigious position to practice outside the Member State of origin, in another Member State than that. In addition to treat equally what is different — because the Directive has substantially differentiating intent underlying because based on a assumption objective (the quality of formation) —, there is also a distortion of the conditions of competition in the community space, particularly in the Portuguese territory, as the professionals from the Member States who wish to pursue in Portugal are obliged to compete with people without proper training. That is why the maintenance in force of Decree No. 73/73, 28 February, involves violation of article 10 of the Treaty of Rome (in addition to addressing the article 13 of the Constitution — this problem will turn into III.), being Portugal subject to a possible infringement proceedings under articles 226 et seq. of that Treaty.

c) legal guidelines If the Constitution and Community law preclude the maintenance of Decree No. 73/73, 28 February, not least if reveals the your inadequacy in the face of ordinary legislation. Both in preambles of several legal texts, whether in pleadings, the lawmaker laments the State of things 16, announces changes, but in the end leaves almost everything in the same ... Almost all because, still, the regime of Decree No. 73/73 has suffered important exemptions, reference: d.l. 205/88, of 16 June admits in the preamble the need of Decree No. 73/73 suffer a deep and deliberate review, "for inappropriate to modern quality requirements and Why rigour should be guided to official qualification require the technicians responsible for the draft works. " Even if consummate this design, the legislature begins by monumental heritage safeguarding the country, handing responsibility for architects when it comes to architectural designs for restoration, storage, adaptation or alteration of real property classified, of any type, location or use, and in their special areas of protection (article 3). Article 8 establishes a transitional arrangement of six months since the beginning of the regulation, during which "the municipalities may accept exceptionally elaborate architectural projects and underwritten by different qualification of architects, since there are no registered architects in the City Hall licensing";
d.l. 292/95, of 14 November, also reveals, in the preamble, the dissatisfaction of the legislature in the face of the current situation. You can then read that "sustainable urban development cannot be dissociated from concerns of improving the quality of life in urban areas, adequate framing of the buildings in the surrounding area and the existence of recreational and leisure areas. (...) On the threshold of the 21st century is not acceptable they emerge descaracterizadas, amassed and urban areas without quality. (...) We must bear in mind that, in recent years, has increased the number of courses taught in Portuguese higher education institutions, lecturers of expertise in the areas of urban planning and Urbanism in General ". Starting from these assumptions, the diploma requires the formation of multidisciplinary teams for the preparation of plans and detailed development (article 2), integrated, as a rule, by at least an architect, a civil engineer or civil engineer, a landscape architect, an urban planner and a technical degree in law, any of them with actual professional experience of at least three years "(paragraph 2). Paragraph 3 exemption, in certain situations, the landscape architect, paragraph 4 refers to situations in which there are 17 technicians with more than a qualification, and paragraph 5 requires the participation of all the elements listed in paragraph 2 whenever you are concerned the elaboration of safeguard and recovery plans relating to classified buildings and their protection areas (in logic Incidentally, the DL 205/88, of 16 June). The lots are subject to the same discipline — that is, the establishment of multidisciplinary teams — pursuant to article 4, although providing for exceptions (which correspond primarily to cases where the area has already been the subject of regulatory or conformation shows no special complexities — paragraph 3);
-the DL 167/97, of 4 July, approving the deployment scheme of tourist resorts, featuring article 10/4 that the studies and projects of tourist resorts should be subscribed by architect or architect in collaboration with civil engineer, duly identified.

The analysis of all these diplomas raises two brief observations:-the legislature is fully aware of the social and economic need to reform the current system, in particular the amendment of the regime established by Decree No. 73/73, of 28 February;
-in the absence of political courage to conduct a thorough review, the legislature has been to correct certain situations more blatantly inappropriate, somewhat embarrassed and even random: for example, the reason for the imposition of the intervention of architect in the development of a tourist resort project, and your pantry for a public building project (hospital , school, Court)?

The inconsistency of the system reached the peak with the approval of your DL 176/98, of 3 July (Statute of the order of Architects). Is that this legislation, in line with article 3 of Directive 85/384, defined, in article 42/3, the "acts of the profession of architect" as: "studies, projects, plans and activities of consultancy, management and direction of works, planning, coordination and evaluation, reported to the field of architecture which 18 covers the construction, urbanism, design and design of the spatial framework of life of the population aimed at the harmonious integration of human activities in the territory, the enhancement of the built heritage and the environment ".

These acts are part of what you might call a function, i.e., are acts and activities that must be performed exclusively by architects (article 42/1). Article 43/2), which sets forth the rights of architects, reiterates this idea, featuring the architect has the right to exercise the profession, "according to your vocation, education and experience, without interference on your technical autonomy, nor professional competition without adequate training" (emphasis added). The principle of the prohibition of competition by individuals without the formation of architect is expressly enshrined here: However, the legislature did not take all the consequences; you're not supposed to other exercise (illegal) of architecture; but imposed additional responsibilities to architects. In particular, the architect must, pursuant to article 47: ") Act so that your work as artistic and technical creation, contributes to improve the quality of the environment and cultural heritage; b) Use processes and adopt the solutions able to ensure the quality of construction, the well-being and the safety of persons; c) Promote social integration, encouraging the participation of citizens in the debate and in the decision-making process in all for the environment ".

The coexistence between these provisions and the regime of Decree No. 73/73, 28 February, becomes truly impossible. In fact, how to explain that the "acts of architecture" may be practiced by other professionals, maxime without specific training? Revocation (implied) seems beyond dispute, given the obvious mismatch. The inertia of the status quo was, however, stronger and the rules of Decree No. 73/73, 28 February, continue to be considered existing law in the construction market. 19 the recent renewed legislation on the licensing of private works constitutes a last argument supporting the thesis of (need to) express repeal of Decree No. 73/73, of 28 February. Article 10 of Decree-Law 555/99 of 16 December (subject to changes and republished by DL 177/2001, of 4 June), provides that: "3. Can only subscribe to the technical projects which are included in the public association of professional nature and you do your registration validity proof at the time of submission of the initial request, without prejudice to the next paragraph. 4. The technicians whose activity is not covered by the public association can subscribe to the projects for which they have appropriate clearance, pursuant to professional qualification regime due to the authors of works projects or in special legislation on the public body officially recognised ".

If paragraph 3, to admit the exceptions listed in paragraph 4, let the door open for the continuation of the current situation — practice of the profession of architect by persons not qualified — detailed analysis of this device seems to leave no doubts as to the removal of the regime of Decree No. 73/73, of 28 February. Note: in cases not covered by paragraph 3 — recognizing a buffer of activity depending on the specific training —, what happens is that the person can "subscribe to the projects for which has proper clearance". That is, a designer can perform drawings, a construction worker can proceed to the physical deployment of the building; a mining engineer, on the other hand, does not have any kind of adequate clearance in the framework of a project of construction of buildings, and therefore will not be able to intervene in the process. The exercise capacity measured in terms of professional qualification, which is a requirement of respect for the cast of acts of occupation, when they exist: positively — we must assign certain tasks to certain professionals — and in a negative way — to stop, for reasons of public interest, the exercise of these tasks by who holds no qualification for the play. Dir: this interpretation leads to a whole series of people who until now, under cover of an obsolete regime and damaging, exercise activities for which materially if 20 are not enabled, be unable to continue to do so, with serious damage to your professional and personal life. This conclusion is aggravated when we found that the legislation referred to in paragraph 4 — "professional qualification regime due to the authors of works projects" — doesn't exist. Which means that even these people can continue to develop your work in the manner in which they did so far, or are able to do so in other words, given the lack of legislation referred to.

In conclusion: 1) a clear statement of the legislature towards express revocation of the Decree No. 73/73, 28 February, can put an end to the situation of complete legislative disarticulation currently lives; 2) the repeal of Decree No. 73/73, the socio-professional implications that will have, should be accompanied by appropriate legislative measures to ensure that workers so far, without material for fitness but under a permissive legislation, subscribed to construction projects, the possibility to apply your expertise in areas in which this is permissible and helpful.

III. The position of skilled professionals who have "acquired rights", in face of the repeal of Decree No. 73/73, 28 February question of the repeal of Decree No. 73/73, 28 February, there's always deserved, on the part of professionals with other qualifications than those of architect and civil engineer, strong defence. It's almost thirty years of professional practice in the field of construction, under cover of an obsolete regime, but that have been consolidating a practice that covers a wide number of people. The question is whether the mere passage of time — which does not even amount to a constancy of the assumptions of fact which justified the creation of the original scheme, in 1973 — legitimizes invocation, on the part of professionals without specific training in architecture, of a right to perform tasks — in particular, the architectural projects subscription — for whose exercise the legal system calls for 21 specific skills. There are several arguments that compete for the negative response: 1. The situation of shortage of skilled workers that lived in the early 70 was exceeded. Today there is a considerable number of higher education institutions, public and private, that grant the degree in Architecture [v. supra, II. 1. a)]. However, licensees are, under the scheme of Decree No. 73/73, 28 February, forced to compete on the labour market with professionals without specific training in architecture but which are legally recognized aptitudes to perform acts of the profession of architect. The disappearance of the assumptions of fact of law would, by itself, sufficient to justify your revocation Declaration, at least from the early 80. But worse than keep alive a brain-dead law, is to feed the term of an unconstitutional law that curtails unjustifiably the freedom of access to the profession (article 47/1 of the Constitution); 2. It is not permissible for one who has no training work, and who has no training work: Decree No. 73/73 is currently a restriction unnecessary, inappropriate and excessive freedom of exercise of the profession to which, with personal and economic costs, if a specific formation and that, after all, if you can't develop properly due to the distortion of conditions of competition (article 18/2 and 3 of the Constitution). There are conflict of rights, he always to be resolved in favour of those who managed to get the necessary specific training, in view of responsible and qualified exercise of the profession; 3. The maintenance of the regime of Decree No. 73/73 far beyond your time need led to a flagrant and continuing violation of the principle of equality (article 13/2 of the Constitution). In fact, and especially from the late 80 (when the number of Architects was already 4,000), the legislature, bypassing the constitutional arguments, and even legal community (several times invoked), consented to continue to consider equal what should be treated differently. The objective reasons of equalization — the shortage of qualified professionals — disappeared, and hence also the grounds justifying the equality of treatment should be terminated. We are thus faced with a clear situation of breach of the principle of equality — maintenance in force of a system of equalization without 22 Foundation; 4. note further unconstitutional, resulting in incompatibility between the regime of Decree No. 73/73, 28 February, and the list of tasks of the State relating to the protection of the environment and heritage — not to mention the safety of buildings, which leads us to the general duty of prevention of dangers that it is for the State and to your Administration (articles 266/1 , 199/g), and 272 of the Constitution). The diploma represents — recalled: at least since the late 80 (when your withdrawal began to be singled out as a priority by the legislature) —, inappropriate and detrimental to the tutelage of fundamental values of the community, all the more serious by cripple, wants to promote the quality of life for present generations, wants the creation and preservation of the cultural heritage of future generations.

These considerations lead to the conclusion that there are no vested interests to protect, for the simple reason that, with the exceptions that the Constitution provides (in article 3 sporting/), there is no acquired rights arising from rules unconstitutional (see RUI MEDEIROS, the decision of unconstitutionality, Lisbon, 1999, pp. 620 secs). And don't even say, in the absence of acquired rights, that construction workers should be recognised legitimate expectations to a long transitional period until the cessation of application of Decree No. 73/73, after your withdrawal: it should be noted that this, in addition to translating a duty, generally recognized, real social replacement, is a constitutional imperative and of community is being claimed , fact that removing the element of surprise that would in other circumstances. However, on the one hand, the absence of a long transitional period is not equivalent to the absence of any period of adjustment to the new reality of the labour market. A guardianship, although reduced, the continuity of professional situations, is an implementation of the principle of legal certainty, a corollary of the principle of the rule of Law (article 2 of the Constitution). On the other hand, the establishment of that time of adaptation should not exclude the legislature to approve a system of professional qualification in the field of construction, in order to forward the various professionals for tasks that are physically able to play. 23 certain is that the architects cannot continue to bear the costs of the legislative inertia, while the remaining "operators" of the art market of construction draw advantage, precisely, the strength of this inertia. The architects, professionals want the Portuguese, coming from European Union Member States whose diplomas possess the conditions for recognition laid down in Directive 85/384, should see them recognized the exclusive design of architectural projects, on behalf of the public interest and prestige of the profession.

IV. The resolution of the Assembly of the Republic n° 52/2003, of 22 may, following an initiative of the order of architects with the Assembly of the Republic, implemented through the petition No. 22/IX (1st), towards the repeal of Decree No. 73/73, of 28 February, the Committee of public works, transport and communications has adopted on 8 April 2003 unanimously, the conclusions and the opinion of the final report drawn up by Mrs Mrs Isabel Gonçalves. The main conclusions of this report are the following: 1 "transcribe) the subject of the petition concerned is justified and your achievement will bring benefits to the quality of life of every citizen and of your community; 2) the right to architecture is a logical consequence of the right to housing and town planning and the environment and quality of life enshrined in the Constitution of the Portuguese Republic; 3) the maintenance of the transitional regime laid down by Decree No. 73/73, 28 February, implies the existence of a technical and legal inconsistency, with a resignation of the State with regard to the regulation of the construction industry and architectural quality, for the protection of the environment and heritage, preventing the exercise of the profession of architect in a competitive environment; 4) the maintenance of this Decree is incompatible with the Directive 85/384/EEC of 10 June 1985, and with the Decree-Law No. 176/98, of July 3, 24 undermining the coherence of the whole system, being urgent a new regime of professional training in the construction sector for the regulation of a sector of vital importance to the Country; 5), finally, reflect also on the position of professionals with other qualifications, that currently protected by Decree No. 73/73, 28 February, can subscribe to architectural projects, who should be given a time of adaptation and the possibility of being sent back to the tasks, in accordance with their qualifications, are physically able to play; 6) there are no acquired rights or legitimate expectations to protect, should, however, recommend to set a reasonable period of transition, re-routing of professionals recognized for by Decree No. 73/73, 28 February ".

The Assembly of the Republic, based on the conclusions, adopted 22 transcript of May 2003, resolution No. 52/2003, in which "recommends to the Government that takes into due consideration and take appropriate measures to your implementation. This recommendation, unfortunately, have not yet had echoed in concrete legislative measures. Such inertia contributes to the deterioration of urban anarchy in Portugal and is committed, internationally, and internal state. In particular, the violation of constitutional provisions and discredits the image of the Community legislature in the face of the population and makes him a potential target of the sanctioning bodies ' action.

V. compliance with art. 4 of law No. 17/2003, of 4 June (law of 25 Citizens Legislative Initiative this diploma does any economic and financial burden to the State and does not involve, in the current financial year, expenditure or revenue reduction provided for in the State budget.

Thus, taking into account all the foregoing, the following DRAFT LAW of WITHDRAWAL (partial) of Decree No. 73/73, February 28 article 1 (architectural designs) the preparation, underwriting and appraisal of architecture competes exclusively to architects, validly entered into their professional Order or statement issued in accordance with article 12 of Decree-Law No. 2/14/90 , 8 of January.

Article 2 (approval of a scheme of professional qualification) the Government should adopt the system of professional qualification of the remaining construction professionals within one year after the entry into force of this regulation, after consulting the associations representing the interests of all. 26 article 3 (transitional provision) The local authorities may continue to accept non-architectural projects signed by architects until three years after the entry into force of this regulation, since their authors prove that, at the date of publication of this decree-law had already presented, in the Chambers where they are registered and for not less than five years, similar projects by other subscripts , which earned approval.

Article 4 (repeal) this Decree repeals all provisions of Decree No. 73/73, 28 February, which to him are incompatible.

27 citizen legislative initiative architecture: A right of citizens, an act of Architects (partial Revocation of Decree 73/73, of 28 February) COMMISSION REPRESENTATIVE 1. Mrs Helena Roseta ARQ, President of the 2 architects ' Association. ARQ° Manuel Vicente, Vice President of the National Governing Board 3. ARQ. º João Afonso, Secretary of the National Governing Board 4. ARQ. º Tiago Mota Saraiva, Treasurer of the National Governing Board 5. ARQ. º Pedro Milharadas, Member of the National Governing Board 6. ARQ. º João Pedro Serôdio, President of the Regional Governing Board North 7. Mrs Eleonora Cintra ARQ Garcia, President of the directive Council South Regional 8. ARQ. º Carlos Guimarães, President of the Board of the General Meeting 9. ARQ. º João Belo Surrounds, President of the National Council of 10 Delegates. Dr. João Miranda, legal advisor of the National Governing Board RESIDENCE order of Architects National Governing Board oak Platter, n. º 23-003 1249 Lisboa Tel: + 351 21 324 11 10/15 Fax: + 351 21 324 11 01 e-mail: