Member State law - Portugal
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This page provides you with information on the legal system in Portugal.
1. Instruments, or sources of law, which set out legal rules
In line with a traditional approach, the following are sources of law in Portugal:
- Constitutional laws, which comprise the Portuguese Constitution itself, miscellaneous constitutional laws and laws amending the Constitution.
- The ‘rules and principles of general or common international law’, ‘rules laid down by duly ratified or approved international conventions’, ‘rules issued by the competent bodies of international organisations to which Portugal is a party (...), provided that this is laid down in the respective founding treaties’, means the ‘provisions of the Treaties governing the European Union and the rules laid down by its institutions, in the exercise of their respective powers’ — Article 8 of the Constitution of the Portuguese Republic;
- Ordinary laws, comprising Laws issued by the Assembly of the Republic, the decree-laws of the Government and regional legislative decrees produced by the Legislative Assemblies of the Autonomous Regions of the Azores and Madeira;
- Instruments with effect equivalent to that of laws, such as acts approving international conventions, treaties or agreements, generally binding decisions of the Constitutional Court declaring measures to be unconstitutional or illegal, collective labour agreements and other collective instruments regulating labour relations;
- Regulations, or legislative instruments of lower status than laws, whose purpose is to supplement laws and fill out the details so that they can be applied or implemented. These comprise implementing decrees, regulations, decrees, regional implementing decrees, decisions, rules, ministerial implementing orders, executive orders, police regulations issued by the Civil Governors, and municipal orders and regulations.
2. Other sources of law
Views differ as to the admissibility and importance of other sources outside the sphere of the State’s political power to create written law. These differences of opinion stem in particular from the fact that, for some, the sources are means of establishing legal rules while, for others, they are channels whereby the rules are revealed and, for others still, they are both means of establishing rules and channels for revealing them. A distinction is sometimes drawn between direct and indirect sources, which avoids some of the difficulties arising from the differences in basic approach.
The following are commonly referred to as possible sources of law:
- Custom, in other words the repeated and habitual adoption of a particular line of conduct that is generally believed to be mandatory. This can be regarded as a source of law only in certain subject areas. Rules created in this way may, for instance, be found in the field of public international law (e.g. the principle of the immunity of foreign States from prosecution stems from custom), international private law and administrative law;
- Case-law, i.e. the set of principles emerging from judgments and decisions handed down by the courts; it is regarded in some quarters as not constituting a genuine source of law but as significant merely in revealing the meaning of legal provisions by providing solutions to problems of interpretation that may be followed in other instances according to the weight carried by the logical and technical arguments on which they are based. Some authors include in this category not only court decisions in specific cases but also judicial rulings which have the force of law (generally binding decisions of the Constitutional Court) because, in their view, they are all instruments which actually create generally applicable law.
- Equity, whereby the courts are empowered to formulate legal rules appropriate to the specific features of individual cases under their examination, relying on general principles of justice and the ethical awareness of the judge. ‘The courts may take a decision based on equity only where: (a) where there is a legal provision permitting it; (b) where there is agreement between the parties and the legal relationship is not unavailable; (c) where the parties have previously agreed on grounds of equity (Article 4 of the Civil Code).
- Usage, in other words repeated social practices that are not considered to be mandatory but are regarded as important in legal transactions, in particular in the formalisation of legal relations, especially in the field of commerce. Usage may be taken into account by the courts where provided for by law and where it is not ‘contrary to the principles of good faith’ (Article 3 of the Civil Code). Legal rules cannot therefore be created independently through usage, and many do not consider usage to be a genuine source of law.
- Legal theory, or the opinions of legal writers, should not be regarded as a genuine source of law, although it plays an important role in the scientific and technical development of legal knowledge and has significant repercussions on the final result of the work of those responsible for interpreting and applying legal rules.
3. Hierarchy between the various instruments
When reference is made to the hierarchy of laws, what is meant is the relative status of the different instruments, in other words their position in an ordered scale.
Some argue in this connection that a hierarchy can be established only on the basis of the method of creation. According to this view, the hierarchy is not based on the relative status of legal rules but is established between the sources by which they were created.
Whichever view is taken, an order of precedence can be drawn up.
The hierarchical order of the different sources listed in section 1 is as follows:
1 The Constitution of the Republic and constitutional laws;
2 The rules and principles of general or common international law and international conventions (i.e. all acts referred to in paragraph 1 (b));
3º Laws and decree-laws;
4 Regional Legislative Decrees;
5 Acts having the equivalent force of laws;
4. Procedures for bringing the rules contained in supra national instruments into force within the national territory
Receipt of international regulatory instruments complies with the following criteria as described in Article 8 of the Constitution of the Portuguese Republic:
- “The rules and principles of general or common international law shall form an integral part of Portuguese law”;
- “The rules set out in duly ratified or approved international agreements shall come into force in Portuguese internal law once they have been officially published, and shall remain so for as long as they are internationally binding on the Portuguese State”;
- “Rules issued by the competent bodies of international organisations to which Portugal belongs shall come directly into force in Portuguese internal law, on condition that this is laid down in the respective constituent treaties”;
- “The provisions of the treaties that govern the European Union and the rules issued by its institutions in the exercise of their respective responsibilities shall apply in Portuguese internal law in accordance with Union law and with respect for the fundamental principles of a democratic State based on the rule of law”.
5. Different authorities to adopt rules of law
The authorities empowered to adopt rules of law are the Assembly of the Republic, the Government, the Regional Governments and Legislative Assemblies of the Azores and Madeira, local authorities and certain administrative authorities.
6. Process for adopting these rules of law
The way in which rules are adopted varies according to the specific procedures to be followed by each body responsible for adopting the rules. The different types of legislative instrument are therefore generated through different processes. The two most formal and most important procedures for adopting legal rules are described below.
The most complex procedure, involving the Assembly of the Republic, comprises the following steps:
- Initiation of legislation: the power to initiate legislation lies ‘with Members, parliamentary groups and the Government, and also, subject to the terms and conditions laid down by law, with groups of registered electors. the power to initiate legislation in relation to the autonomous regions shall lie with the respective Legislative Assembly’ (Article 1 (167) of the Constitution).
- Initial admission, publication, registration, numbering and assessment — this stage involves the consideration of the admissibility of the tender, its publication in the Diário da Assembly, administrative treatment and, finally, the assessment of its content;
- Discussion and approval: this involves a debate on general issues, another debate on specific points, a vote on the bill as a whole, a vote on specific points and a final overall vote. For a bill to be passed, a simple majority, an absolute majority or a qualified majority may be required;
- Scrutiny by the President of the Republic within the period laid down by law, Following which he either promulgates the proposed text or exercises his right of veto. In the latter eventuality, the measure is rediscussed by Parliament. If the vote is confirmed or amendments are made, the text is again forwarded to the President for promulgation, which must also take place within a pre-established period of time. The President of the Republic is responsible for ‘promulgating laws, decree-laws and regulatory decrees and ordering their publication, and signing resolutions of the Assembly of the Republic that approve international agreements and other Government decrees’ (Article 134 (b) of the Constitution).
- Publication: once it has been promulgated, the President must order the text of the new legislation to be published in the Official Gazette of the Portuguese Republic.
The procedure whereby the Government adopts legislation comprises the following main steps:
- Initiation of legislation: draft legislation is put forward by the office of the minister concerned.
- Enquiry: during this stage, the minister proposing the draft must canvass opinions, and the bodies specified by the Constitution and by law must also be consulted.
- Preliminary and detailed assessment: proposals are examined and evaluated once they have been initially endorsed.
- Approval: although certain types of legislation do not have to be approved by the Council of Ministers, the latter is usually responsible for approving the draft.
- Scrutiny: ‘within forty days of the receipt of any government decree for promulgation,... the President of the Republic shall either promulgate the decree or exercise his right of veto. in the latter case, he shall inform the Government in writing of the reasons for so doing’ (Article 4 (136) of the Constitution).
- Publication of the definitive text in the Official Gazette of the Portuguese Republic.
7. Procedures for bringing national rules into force
“Laws shall be binding only after publication in the Official Gazette”. ‘Once a law has been published, it shall enter into force after the period stipulated in the law itself has elapsed or, where no such period is stipulated, after the period provided for in special legislation’ (Article 5 of the Civil Code).
In view of the provisions of Article 2 of Law No 74/98 of 11 November, as amended:
paragraph 1 — ‘Legislative acts and other acts of general content shall enter into force on the day fixed therein, and in no case shall the start of the period of validity on the day of publication.’
paragraph 2 — ‘In the absence of fixation of the day, the diplomas referred to in the preceding paragraph shall enter into force throughout the national territory and abroad on the 5th day after publication’.
paragraph 4 — The time limit referred to in paragraph 2 shall be counted from the immediate day on which it is made available on the website run by the Imprensa Nacional Casa da Moeda, SA.
8. Means for settling possible conflicts between different legal rules
The most important role in this connection is played by the Constitutional Court, which must declare to be unconstitutional any rules that conflict with the Portuguese Constitution or the principles enshrined therein.
In the context of the assessment of individual cases brought before them, the courts may not apply rules which violate the provisions of the Constitution or the principles emerging from it.
In the interpretative process carried out with a view to the assessment of the questions submitted to them, it is for the courts to overcome any conflicts that exist between different rules of law, always taking into account the aforementioned hierarchy of sources. In doing so, they must consider the system as a unified whole, without acknowledging any gaps or inconsistencies, in particular of a logical or semantic nature, weighing up the circumstances underlying the adoption of the rules and the specific conditions prevailing at the time the proceedings take place, always requiring a minimum correspondence in wording, even if imperfectly expressed, with the approach taken in the legislation and assuming that the legislature opted for the ‘most judicious’ solutions and was able to ‘express its intentions in appropriate terms’ (Article 9 of the Civil Code).
As far as conflicts between rules in the area of private international law are concerned, please refer to the theme Applicable law — Portugal.
Digesto is Portugal’s official legal database and contains the Official Gazette (Diário da República).
Digesto — Integrated Legal Information System
The Digesto was set up by Council of Ministers Resolution No 48/92 of 31 December and provides:
- Acts published in the 1th and 2th series of the Diário da República
- Free legal information in an integrated, detailed and up-to-date manner, including:
- Duration, production of effects and notes on acts published in the 1nd series of DR as of 5 October 1910 and several documents from previous decades and acts of the 2nd series of RD processed by the PCMEX;
- All relevant information, such as the applicable rules, regulations, development regulations, changes produced and incurred, applicable Community law, administrative guidelines of the Directorate-General for Budget, the case-law issued and the associated collective regulatory instruments;
- It gives access to three other databases: LEGÇOR — Regional Legislative Data Base, REGTRAB — Special Labour Regulatory Database, and DGO-Dout — Special circulars database and opinions from the Directorate-General for Budget.
- It provides access, by interoperability with the legal databases of the Ministry of Justice, with the Office of the Prosecutor General (PGR) and the Assembly of the Republic, through its PA database — Parliamentary Activity respectively, the case law of the main courts, the opinions of the PGR and all the preparatory work for the Law since the entry of the legislative initiative until its publication.
Electronic Diário da República
In accordance with Decree-Law No 83/2016 of 16 December 2006, the Diário da República is a public service which is universal and free of charge and is exclusively edited by electronic means. This public service is provided by the National Mint/Casa da Moeda S. A. (INCM), which makes the Diário da República available on its website. Universal and free access includes the possibility of printing, filing, searching and free access to the content of the acts published in the 1th and 2th series of the Diário da República, in open electronic formats.
The Diário da República is made available on a compulsory basis as follows:
- The legal acts which require publication in the Diário da República in accordance with the Constitution and the Law, in particular Law No 74/98 of 11 November 2004, amended and republished by Law No 43/2014 of 11 July 2011.
- An updated consultation tool on the consolidated text, without legal value, of the relevant legislation in the legal system;
- A tool for consulting a legal translator of terms;
- A search tool, by means of terms, of acts that need to be published in the Diário da República;
- Legal information being properly treated and systematised;
- Interconnection with sector-specific additional legal information bases, in particular case-law, Community law, administrative guidelines and legal literature;
- Sending free of charge to the respective subscribers’ email of the respective index of the 1th and 2nd series of the Diário da República;
This is a machine translated version of the content. The owner of this page accepts no responsibility or liability whatsoever with regard to the quality of this machine translated text.
Last update: 26/08/2019