Legal order - Portugal
TABLE OF CONTENTS
Instruments, or sources of law, which set out legal rules
Other sources of law
Hierarchy between the various instruments
Procedures for bringing the rules contained in supra national instruments into force within the national territory
The various authorities empowered to adopt rules of law
Process for adopting these legal rules
Procedures for bringing national rules into force
Means for settling possible conflicts between different legal rules
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”, “the rules set out in duly ratified or approved international agreements”, “rules issued by the competent bodies of international organisations to which Portugal belongs …, on condition that this is laid down in the respective constituent treaties” and “the provisions of the treaties that govern the European Union and the rules issued by its institutions in the exercise of their respective responsibilities” (Article 8 of the Constitution);
- Ordinary laws, which comprise laws enacted by Parliament (the Assembly of the Republic), decree‑laws issued by the Government and regional legislative decrees adopted 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 regulatory decrees, regulations, decrees, regional regulatory decrees, decisions, rules, ministerial orders, executive rulings, 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, 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 acts which genuinely create objective law;
- Equity, whereby the courts are empowered to formulate, with regard to certain specific cases submitted for their assessment, legal rules appropriate to the specific features of those cases, relying on general principles of justice and the ethical awareness of the judge. “The courts may decide on the basis of equity only where: (a) there is a legal provision allowing it; (b) there is agreement between the parties and appeal to a higher court is possible; or (c) the parties have previously agreed to rely on 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 matters, 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 the answer to the first question is as
- The Constitution and constitutional laws;
- The rules and principles of general or
common international law and international agreements (i.e. all the
instruments referred to in paragraph 1(b));
- Laws and decree-laws;
- Regional legislative decrees;
- Instruments having an effect equivalent
to that of laws;
4. Procedures for bringing the rules contained in supra national instruments into force within the national territory
International legislative instruments are transposed into Portuguese law in accordance with the following principles set out in Article 8 of the Portuguese Constitution:
- “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”.
According to some authors, the principle laid down in (c) covers the direct effect of Community regulations and of directives and decisions addressed to the Member States.
5. The various authorities empowered to adopt rules of law
The authorities empowered
to adopt rules of law are Parliament, the Government, the Regional
Governments and Legislative Assemblies of the Azores and Madeira, local
authorities and certain administrative authorities.
6. Process for adopting these legal rules
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 Parliament, comprises steps that can be summarised as follows:
- Initiation of legislation: the power to initiate legislation “shall lie 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 167(1) of the Constitution);
- Initial admission, publication, registration, numbering and assessment: this phase involves consideration of the admissibility of the bill, publication of the text in Parliament’s Official Gazette, administrative processing and, finally, evaluation 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 and “signing resolutions of the Assembly of the Republic that approve international agreements” (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 ministerial departments;
- 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 Cabinet, 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 136(4) 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).
Pursuant to Article 2 of Law No 74/98 of 11 November 1998, as amended by Law No 2/2005 of 24 January 2005:
- “Legislative instruments and other acts of a general nature shall enter into force on the date laid down therein; under no circumstances may they enter into force on the date of publication”;
- “Where no date is stipulated, the measures in question … shall enter into force on the fifth day after publication”;
- “The said measures shall enter into force in the Autonomous Regions of the Azores and Madeira on the fifteenth day after publication and outside Portugal on the thirtieth day”;
- These periods “shall begin to run from the day following the date of publication of the measure or of actual distribution, where this takes place later”.
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.
When considering specific cases laid before them, the courts cannot apply provisions that infringe the Constitution or the principles deriving from it.
During the interpretation process carried out with a view to weighing up the facts submitted for their consideration, the courts must settle any conflicts arising between different legal rules, always having regard to the above‑mentioned 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 verbal correspondence, even if imperfectly expressed, with the approach taken 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).
A “special administrative action” may be instigated for the main purpose of requesting a declaration of “illegality of a measure adopted under the provisions of administrative law” (Article 46(2)(c) of the Code of Procedure of the Administrative Courts).
As far as conflicts between rules in the area of private international law are concerned, please refer to the theme Applicable law - Portugal
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