What measures can the State adopt to stop the spread of COVID-19? Could the Government or other public entities impose restrictions on me (for example, limit freedom of circulation, restrict my establishment’s opening hours) based on the need to fight the COVID-19?

The COVID-19 could also warrant regulatory or authoritative measures on the Government´s side with a direct impact on private businesses, including suspending their activity or shutting down services, establishments and public and private use places, or the compulsory internment or provision of health care to persons who constitute a danger to public health – as has already occurred with the restrictions imposed on the operation of educational institutions and commercial establishments and restaurants and bars (Article 12 of Decree-Law 10-A/2020 and Ordinance 71/2020, of 15 March), as well as the limitation on the opening hours of bars (Order No. 3299/2020, of 14 March), and most recently, following the transiction from  the  state of emergency to the state of calamity, with the closure of premises and the suspension of retail activities and of the provision of services open to the public (articles 6, 7 and 9 of the Resolution of the Council of Ministers no. 33-A/2020) .


Businesses can anticipate those measures and set up a plan of action in the event of contagion, quarantine, compulsory shutdown, limitations to air travel or circulation and shutdown of non-essential public services.
Services of potential public use – such as transport, temporary accommodation, private health establishments, laboratories, pharmacies, producers and suppliers of medicines and medical devices used to prevent, diagnose or treat the COVID-19 – and any employees of those utilities – should not rule out the possibility of civil requisition.

 

Am I under an obligation to abide by the guidelines and public health protection measures of the authorities?

Public health guidelines issued by authorities are not always binding. However, compliance with those guidelines is linked to the performance of care duties, which may in turn protect and release your company from any damage claims based on tort (or other reasons).

Your company should therefore be prepared to identify and react quickly and appropriately to any legislative or regulatory amendments and to review mere instructions or guidelines.

Your company should also duly record any prevention measures taken by your own initiative or to comply with any laws, guidelines or administrative regulations in connection with the COVID-19.

 

Am I entitled to compensation for any restrictions imposed by those measures?

In very exceptional circumstances, the State could be forced to pay compensation based on any measures adopted to fight the COVID-19 which, although legal, caused special and unusual damages. The State could enact a specific act creating exceptional compensation or liability limitation regimes.

It should be noted, however, that article 8 of Decree-Law no. 19-A/2020 establishes that there should be compensation for the damages caused by the lawful action taken by the State or by other public entity, in the exercise of the powers granted by the legislation on public health and civil protection, or within the framework of the state of emergency, for the purposes of prevention and fight against the COVID-19 pandemic. To know more about this subject, see Chapter  “Exceptional Regime for Rebalancing Public Contracts and Limiting the State’s Liability”.

 

What could change in this respect?

The Economic and Social Stabilization Program, enacted by Council of Ministers Resolution 41/2020, of 4 June 2020, proposes to streamline public procurement procedures to avoid investments being delayed by massive red tape, long drawn-out appeals in courts or any other disproportionate legal constraints, notably by means of the following measures: 

  • Speeding up projects co-financed by European funds (PT2020), as well as contracts executed in connection with public or rent-controlled housing, property upkeep and maintenance, infrastructure and equipment;
  • Rise of the prior consultation thresholds for works and services contracts;
  • Granting the awarding entity the freedom to make exceptional awards above the maximum price if no bids are submitted in the tender;
  • Setting award criteria regarding environmental sustainability, innovation of processes, products or materials, and the promotion of scientific or qualified job positions;
  • Encouraging local procurement, which can be a criteria to be adopted in public procurement procedures;
  • Possibility of establishing a quota in pre-contractual procedures for micro, small and medium-sized enterprises and for entities of the relevant intermunicipal communities;
  • Possibility of the tender specifications only including a preliminary program (instead of an implementation project) in case of tenders for design and build projects; 
  • Subjecting the summons of awarding entities sued in pre-contractual lawsuits to an in limine litis order of the judge;
  • Waiving the Court of Auditors’ prior approval for tenders to award contracts under € 750.000.

 

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This information is constantly being updated. 

All information contained herein and all opinions expressed are of a general nature and are not intended to substitute recourse to expert legal advice for the resolution of real cases.