NEWSLETTER DIREITO PÚBLICO I 1 st Quarter 2015 I New Code of Administrative Procedure 2 II National Legislation 4 III Court Decisions 7 NEWSLETTER I PUBLIC LAW WWW.CUATRECASAS.COM NEWSLETTER I PUBLIC LAW 2/8 NEWSLETTER PUBLIC LAW I NEW CODE OF ADMINISTRATIVE PROCEDURE Decree Law No. 4/2015, of 7 January, which in the use of the legislative authorization granted by Law No. 42/2014, of July 11, approves the new Code of Administrative Procedure. The new Code of Administrative Procedure (CPA – “Código do Procedimento Administrativo”), entered into force on 7 April 2015. This is a very important legislative reform in the functioning of the Public Administration and its relationship with citizens. The new CPA enhances democracy and administrative transparency, also by assuring a greater participation of citizens in the preparation of administrative decisions concerning them. The main innovations of the legislative reform are as follows: An enlargement of the Public Administration, in an organic sense; Densification of some general principles of activity of the Administration; Creating a common administrative procedure; Creating a substantive system for administrative regulations; Creation of the regimes for the revocation and cancellation of administrative acts; Modification of the traditional principle of privilege of previous execution of administrative acts. The enlargement of Public Administration in an organic sense results of the subjective scope of application of the new CPA. Therefore, the provisions of the new CPA concerning the general principles of administrative activity, the matters of administrative procedure and of the administrative activity shall be made applicable to the conduct of any entity, regardless of its nature, in the exercise of public authority or regulated specifically by provisions of Administrative Law. As a result of this extension, private legal persons exercising the administrative function are part of the Public Administration and its actions are subject to the new CPA. Similarly, some general principles of administrative activity were densified by the new CPA, most notably the Principles of Justice and Impartiality. WWW.CUATRECASAS.COM NEWSLETTER I PUBLIC LAW 3/8 The principle of Justice is now referred to as the principle of justice and reasonability and elects the rule of Law as fundamental standard for the assessment of administrative activity, particularly in the interpretation of legal rules and own evaluations of the exercise of administrative functions. The principle of impartiality now takes on a new dimension because it is directly placed within the procedure and in the Public Administration's decision context. Apart from that new principles are created such as the principle of good administration and the principles of the so-called "electronic Administration", continuing the progressive implementation of the use of electronic means by the Public Administration and on its communications with individuals. In the field of so-called common administrative procedure it is adopted the principle of procedural adequacy, which allows the person in charge of the direction of the procedure, in the absence of injunctive norms, to freely shape the procedure and celebrate with stakeholders written agreements on its progress. Of great importance and deeply innovative is the system of the procedural conferences. These conferences are meant for the joint exercise of powers or for the exercise of conjugate powers of various organs of the Public Administration, to promote the efficiency and speed of the administrative activity and they cover either complex procedures or a single complex procedure. Decree-law establishing the new CPA already provides for the application of this scheme to the administrative procedure called "Responsible Industry System", being expected that this same scheme, in the so-called Direct and Indirect Administration of the State, may be extended to other administrative procedures in place through an Ordinance issued by the competent ministers. The regime of administrative regulations of the new CPA fills a gap in the Administrative Portuguese Law. With the new CPA, there is now a common substantive regime to all regulations of the Public Administration, setting forth the concept of regulation, the terms of the relationship between regulations, the effectiveness of the regulations and the regime of its invalidity. As regards the administrative act regime the new CPA has established the distinction between the revocation and the administrative cancellation. Another innovation is the possibility of acts that are valid and constitutive of rights of individuals can now be revoked by the Administration in certain circumstances, but in this situation individuals have the right to a compensation. With respect to the regime of enforcement of administrative acts the new CPA came to innovate in the treatment of the traditional privilege of the previous execution. Thus, WWW.CUATRECASAS.COM NEWSLETTER I PUBLIC LAW 4/8 except in case of urgent public need, administrative acts can only be executed coercively by the administration in cases and in the terms provided by law. However, the Decree-Law which approved the new CPA provides for the continuation of the enforcement regime of administrative acts provided for in the Administrative Procedure Code of 1991 until it is not approved and published the law that expressly defines the situations, terms and conditions where administrative acts can be coercively imposed by the Administration. In short, and without prejudice of the fact that the new CPA is profoundly innovative in the treatment of traditional figures of Administrative Law Portuguese such as the administrative regulation and the administrative act, it can be said that we are facing a legal instrument that will certainly change the way of functioning of the Administration and how it relates to citizens. II NATIONAL LEGISLATION Environment Law No. 21/2015, of 17 March Authorizes the Government to amend Law No 7/2008 of 15 February, which establishes the foundation of planning and sustainable management of aquatic resources in inland waters and defines the principles governing the fishing and aquaculture activities in those waters. Resolution of the Council of Ministers No. 11-C / 2015 of 16 March Approves the National Waste Management for the 2014-2020 horizon. Decree-Law No. 33/2015, of March 4 Establishes obligations regarding the export and import of dangerous chemicals while ensuring the implementation in national law of Regulation (EU) No 649/2012 of the European Parliament and of the Council of 4 July 2012. Local Authorities Law No. 25/2015, of 30 March First amendment to Law No. 75/2013 of 12 September, which establishes the legal regime of local authorities, approves the status of intermunicipal entities, establishes the legal regime of the transfer of competences from the State to local authorities and approves the legal framework of local government associations. WWW.CUATRECASAS.COM NEWSLETTER I PUBLIC LAW 5/8 Public Domain Ordinance No. 53/2015, of 27 February Set the amounts, dates and payment of fees due to the EP - Estradas de Portugal, SA, for the licensing for implementation of petrol stations marginal to roads and for the private use of the access to the road. Ordinance No. 54/2015, of 27 February On rules of location, classification, composition and functioning of the service areas included in road public domain zone and petrol stations that are marginal to the roads of the National Road Network, as well as regional roads and unclassified roads under the jurisdiction of EP - Estradas de Portugal, SA. Public Procurement Order No. 2969/2015, of 24 March, of the Presidency of the Council of Ministers and Ministries of Finance and Economics Establishes a working group in order to prepare and submit to the Government until May 31, 2015, the draft of the diploma transposing into national law the Directives No 2014/23/EU on the award of contracts concession, No 2014/24/EU, on public procurement and repealing Directive 2004/18/EC and No 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services. Energy Law No. 6/2015, of 16 January Establishes the terms of the inclusion of simple fuel at petrol stations for public consumption located on the mainland, according to the respective geographical location and specific reporting requirements to the consumers on the road gasoline and diesel available at the petrol stations. Law No. 14/2015, of 16 February Establishes the requirements for access and performance of the activity of organizations and professionals responsible for electrical installations, conforming them to the discipline of Law No. 9/2009, of March 4, and Decree-Law No. 92/2010, July 26, transposing Directives Nos 2005/36/EC, of 7 September on the recognition of professional qualifications, and 2006/123/EC of 12 December, on services in the internal market. Law No. 15/2015, of 16 January Establishes the requirements for access and performance of the activity of organizations and professionals working in the area of combustible gases, fuel and other petroleum products, conforming with the discipline of Law No. 9/2009, of March 4, and Decree-Law No. 92/2010 of 26 July, which transposed the Directives Nos 2005/36/EC of 7 September WWW.CUATRECASAS.COM NEWSLETTER I PUBLIC LAW 6/8 on the recognition of professional qualifications, and 2006/123/EC of 12 December on services in the internal market, and proceeds to the fifth amendment to Decree-Law No. 267/2002 of 26 November. Decree-Law No. 15/2015, of 30 January Amending Decree-Laws Nos 74/2012 of 26 March, 75/2012 of 26 March, 66/2010 of 11 June, and 104/2010 of 29 September, to amend the way of fixing the period of application of the respective transitional rates for supplies of natural gas and electricity to final customers with annual consumption up to 10 000 m3 and with standard low voltage consumption. Directive No. 1/2015, of 7 January, of the Regulatory Authority for Energy Services Establish tariffs and prices for electricity and other services in 2015 and parameters for the regulation period of 2015-2017. Ordinance No. 14/2015, of 23 January Defines the procedure for prior mere notification of presentation of operation of the production units for self as well as to obtain a pre-screening title within the production for own consumption or small production to the total injection into the mains public service of electricity produced, and determining the amount of the fees provided for in Decree-Law No. 153/2014, of 20 October. Ordinance No. 15/2015, of 23 January Settles the reference rate applicable to electricity produced by small production units, in accordance with Decree-Law No. 153/2014 of 20 October, and determines the percentages to be applied to the reference rate, depending on the primary energy used by those units. Ordinance No. 97/2015, of 30 March Proceeds to the second amendment to Ordinance No. 59/2013 of 11 February, the first amendment to Ordinance No. 27/2014 of 4 February, and approves the dates for the period of application of transitional rates of sale end users of natural gas with lower annual consumption of up to 10 000 m3 and electricity with standard low voltage consumption. Public Entities Law No. 22/2015, of 17 March Fourth amendment to Law No. 8/2012 of 21 February, approving the rules for commitments and late payments of public entities. Notice No. 130/2015 of 7 January 2015, the Treasury Management Agency and Public Debt - IGCP, EPE WWW.CUATRECASAS.COM NEWSLETTER I PUBLIC LAW 7/8 Settles at 5.476% the interest rate for late payments applicable to debts to the State and other public entities. Nationality Decree-Law No 30-A/2015 of 27 February Proceeds to the second amendment to Regulation of the Portuguese Nationality, approved by Decree-Law No. 237-A/2006 of 14 December, allowing the granting of Portuguese nationality through naturalization to the descendants of Sephardic Jews. Regulatory Decree-Law No. 9/2015, of 15 January Establishes the conditions to be observed in the contract of carriage of passengers and their luggage by road, on scheduled services, as well as the penalties for breaches of provisions of Regulation (EU) No 181/2011 of the European Parliament and of the Council of February 16, 2011. Decree-Law No. 32/2015, March 4 The first amendment to Decree-Law No. 211/99 of 14 June, laying down the rules to be met by the design, manufacture and conformity assessment, trading and putting into service of pressure equipment, transposing Article 13 of Directive No 2014/68/EU of the European Parliament and of the Council of 15 May 2014. State Secret Organic Law No. 1/2015, of 8 January First amendment to the State Secrets Regime, approved by the Organic Law No. 2/2014, dated August 6, and thirty-fifth amendment to the Penal Code. Essential Public Services Decree-Law No. 2/2015, of January 6 Proceeds to the second amendment to Decree-Law No. 195/99 of 8 June, extending the deadline for the submission of applications for refund on the collateral value of the consumers in some essential public services and creating for these service providers additional obligations information consumers to whom those securities have not been returned. III COURT DECISIONS Judgment No. 81/2010, of 10 March, the Constitutional Court Do not hold unconstitutional the rule in Article 59, paragraph 4, of the Administrative Court Procedure Code, according to which the suspension of the period to file the judicial WWW.CUATRECASAS.COM NEWSLETTER I PUBLIC LAW 8/8 claim ceases with the notification of the decision taken on the administrative appeal or the course of the respective legal term, as the fact that occurs first. CONTACT CUATRECASAS, GONÇALVES PEREIRA & ASSOCIADOS, RL Sociedade de Advogados de Responsabilidade Limitada LISBOA Praça Marquês de Pombal, 2 (e 1-8º) I 1250-160 Lisboa I Portugal Tel. (351) 21 355 3800 I Fax (351) 21 353 2362 email@example.com I www.cuatrecasas.com PORTO Avenida da Boavista, 3265 – 5.1 I 4100-137 Porto I Portugal Tel. 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