Does COVID-19 have any impact on my relationship with the Public Administration (namely as pertains to meeting deadlines or observing any formalities)? To what extent?

Broadly speaking, the consequences of COVID-19 on relations between private individuals may also, with certain adaptations, be extrapolated to the relationship between individuals and the Public Administration, notably and always subject to a case-by-case analysis:

  • Claiming a "justifiable reason" as a ground for excusable non-compliance with deadlines before the Public Administration (or, at least, as a ground for requesting an extension of the deadline) – which has already been accepted by the legislator, albeit subject to documentary proof of such justified reason (Article 14 of Decree-Law no. 10-A/2020)
  • Grounds for suspension of administrative deadlines. The legislator applied the court holidays regime to procedural acts for the duration of the derogation regime, including administrative deadlines for any acts or formalities to be carried out by private entities (except in regard to public procurement procedures, where the deadlines are not suspended). Law no. 16/2020, of 29 May, ended the suspension of deadlines, in accordance with the following terms: (i) deadlines falling during the suspension regime are considered overdue 20 business days after the entry into force of the abovementioned Law (i.e. after 3 June); and (ii) deadlines falling after 3 June will now expire whichever is the sooner: (ii.1) 20 business days after the entry into force of the Law, or (ii.2) on the date of the final deadline if it had not been suspended (i.e. if the original deadline fell before the 20 business days after 3 June period, in practice, the deadlines operate as if there had been no suspension)
  • Administrative licenses, authorizations and other permissive acts remain in force even after their expiration deadline. In this context, the legislator foresees that national identity cards (Cartão de Cidadão) and certificates issued by the civil registration and civil identification services, drivers licenses, documents and visas relating to permanence on national territory, as well as licenses and authorizations expiring after the date of entry into force of Decree-Law no. 10-A/2020, or during the immediately preceding 15 days, will be accepted, under the same terms, until 30 June 2020. They may also continue to be accepted after 10 March 2021 under the same terms, provided that their respective holder can prove that he or she has already scheduled the renewal of the document in question (article 16/2 and 3 of Decree-Law no. 10-A/2020, as amended by Decree-Law no. 87-A/2020, of 15 October)    
  • Adoption (or, rather, reinforced use) of electronic means for communication between citizens and the Public Administration (paragraph 10 of Council of Ministers Resolution no. 10-A/2020). 

In this context, the Council of Ministers Resolution no. 88/2020, of 1 October, determined that the in-person services should comply with the following general rules and procedures (no. 1):

a) The service for information purposes only, must be preferably provided electronically and by telephone;

b) In-person service, for non-informative purposes, is carried out preferably by appointment;

c) The previous appointment for in person public services is made through the portal ePortugal.gov.pt, or the portals and websites of the Public Administration and the contact lines created to support the use of public services by phone;

d) Without prejudice of the previously scheduled in-person service, the priority service, provided for in Decree Law no. 58/2016, of 29 August, is carried out without the need for prior appointment;

e) The in-person service may also be provided through electronic passwords to be made available on the same day, in a number to be determined by the senior manager.

Furthermore, the in-person service areas, must comply with the following rules (no. 3):

a) The heads of public bodies and services shall display at the entrance of the respective facilities the space's maximum capacity and information on changes to the constraints of face-to-face and priority services, which shall also include telephone and e-mail contacts, if any;

b) The number of people allowed in the facilities must, when possible, be limited to one person per 20 square meters, and the use of face masks or face shields is mandatory to access and stay in such services;

c) The workstations must guarantee a security distance between workers, of, at least, 1 meter, to comply with the physical security distance requirement;

d) When the physical distance between workers cannot be ensured, the entity responsible for the service must ensure alternative and effective means of protection, namely physical protections made of acrylic or other appropriate material, placed either on the front or on the side;

e) In the in-person service facilities, the other rules and guidelines defined by the competent authorities regarding occupational health and safety, to be disclosed by the Agência para a Modernização Administrativa, I.P., must also be complied with, namely in what regards to social distance, physical organization of the facilities and the existence of physical protections at the workstations;

f) Within the context of in-person service, service managers must identify workers at risk due to their special health conditions and adopt concrete, derogatory and adequate measures to adapt their working conditions, guided by the Contingency Plan in force, privileging their assignment to functions that do not involve contact with the public or their placement in a remote working scheme;

  • Enhanced preference for the implementation of the remote working regime within the Public Administration

Within this context, Law 1-A/2020 In this context, Law no. 1-A/2020 establishes that the fact that members of collective bodies of public entities participate in their meetings by telematic means (e.g., video or teleconference) does not hinder the regular functioning of the body, in particular with regard to the quorum and resolutions (article 5/1).

In addition, the Council of Ministers Resolution no. 87/2020, of 1 October, determined that the public employer must provide the worker with adequate safety and health conditions to prevent contagion risks from COVID-19, and may, for instance, adopt the remote working regime (no. 1). All functions that may be performed outside the workplace and through the use of information and communication technologies (no. 2) are deemed compatible with the remote working regime. This is without prejudice to the adoption of workers’ rotation scales between the remote working regime and the in-person work performed in the usual workplace, on daily or weekly-basis (no. 3).

In the bodies, services and other entities of the Public Administration, in the places where work is rendered, including common areas, support facilities and access areas, where work is rendered simultaneously by 50 or more workers, the public employers must implement, through prior consultation with the workers, rules for the discrepancy of the workers' entry and exit times in the workplaces, with a minimum of 30 minute gaps between them, up to the limit of one hour – the public employer may, for this purpose, change the working hours up to a maximum of one hour, unless such change causes serious damage to the worker (no.s 4 to 6).

Furthermore, when organising working time, the public employer must adopt technical and organisational measures to ensure the physical distance and protection of workers and to avoid their agglomeration, namely the promotion of stable work teams and the rotation of breaks between the workers of the different bodies (no. 8).

 

Does COVID-19 have any impact on the obligations impending upon the Public Administration? To what extent?

  • Extension of the deadline to perform certain obligations.

Within this context, Law 1-A/2020 states that the ordinary meetings of the decision-making and executive bodies of local government and intermunicipal entities foreseen for the months of April and May may be held until 30 June 2020 (article 3.1 of Law 1-A/2020, in its initial wording).

In addition, the obligation of the decision-making and executive bodies of local government and the parishes and of the decision-making bodies of intermunicipal entities to hold public meetings was suspended until 30 June 2020 (Article 3.2 of Law 1-A/2020, in its initial wording).

In its current wording the law states that, until 31 December 2020, the meetings of the decision-making and executive bodies of local authorities, parishes and intermunicipal entities and respective representative bodies, commissions and work groups may be held through adequate means of distance communication or through means combining in person and long distance meetings (article 3.1 of Law no. 1-A/2020, as amended by Law no. 28/2020, of 28 July).

Public meetings must be recorded and uploaded on the city hall website, and may be broadcasted live on the Internet or through any other broadcasting channel whenever the city hall is equipped with the necessary means for such purposes (article 3.2 of Law no. 1-A/2020, as amended by Law no. 28/2020). Parishes that are not equipped with means of distance communication, being therefore unable to comply with these requirements, must look for alternative ways to ensure the meetings are made public, by posting the minutes of the meeting within a maximum period of five business days. Parishes must inform the Directorate General for Local Authorities on their inability to comply with the abovementioned legal requirements (article 3.6 of Law no.1-A/2020, as amended by Law no. 28/2020).

Local authorities must ensure conditions for public intervention in meetings held through means of distance communication or when limits are imposed to the room’s capacity, by (i) allowing the registered voters to record their interventions in advance and send it to the authority’s support services, (ii) providing recording devices at the city hall for the voters to record their interventions in advance or allowing the voters to use the city hall’s own means of distance communication to participate live in the meeting, whenever voters do not have the means to do so, in compliance with the social distancing rules and other applicable guidelines from the Directorate General of Health (DGS), or (iii) providing the meeting ID to the voters who register themselves for such purposes (article 3.3 of Law no.1-A/2020, as amended by Law no. 28/2020).

In case secret voting must take place, an in-person meeting must be convened. Such meeting must be held in an adequate venue and as close as possible to the date of the meeting where the voting matter was discussed. Voting period must be established in such a way as to ensure compliance with social distancing rules and other applicable DGS guidelines (article 3.4 of Law no.1-A/2020, added by Law no. 28/2020).

When public meetings are held in person, limits may be imposed to the room’s capacity, to comply with social distancing rules and further applicable DGS guidelines. The meeting must be made public through any of the legally admissible means (article 3.5 of Law no. 1-A/2020, added by Law no. 28/2020).

Finally, the deadline for entities subject to the preparation and rendering of accounts (e.g., services of the State and autonomous regions, with administrative or administrative and financial autonomy, or local government) to submit such accounts to the Court of Auditors (article 4 of Law 1-A/2020) was also extended (from 30 April to 30 June 2020).

The legal deadlines for the approval or update of the municipal plans were also suspended (article 35-D of Decree-Law no. 10-A/2020, as amended by Decree-Law no. 20/2020, of 1 May).

Finally, the law also provides that entities declaring, in a justified manner, that they lack adequate sanitary conditions to carry out the Local Administration Professional Internship Programme may, by order of the head of the department, suspend the internship programme and terminate such suspension, at any moment, when the necessary safety requirements are met (article 9-A.1 of Decree-Law 10-A/2020, added by Decree-Law 20-D/2020, of 12 May, as amended by Decree-Law 58-B/2020, of 14 August). Such suspension is not taken into account for the purposes of calculation of the two-month period provided for cases of suspension of the internship contract due to an event relating to the promoting entity, namely the internal reorganization of services [under the terms of article 10/1, paragraph a) of Decree-Law  166/2014, of 6 November].

  • Suspension of the certain obligations or expenditure ceilings

The law foresees that the expenditure ceilings arising from the Programas de Ajustamento Municipal (Municipal Adjustment Programs) may be exceeded if it is due to expenditures aimed for the support to residents affected by the COVID-19 outbreak, the granting of social support, the acquisition of goods and services related to the protection of public health, as well as other measures to fight the effects of the COVID-19 pandemic (including the creation or reinforcement of emergency social funds, the waiver of interest on late payments, the exemption or application of discounts on water and sanitation fees, or the redefinition of deadlines of payment of monthly rent on social housing, among others) (article 2 of Law 4-B/2020, of 6 April).

It was also established an indebtedness derogation regime, foreseeing that there is no financial responsibility of municipalities (and municipal decision makers) in the event legal limits of indebtedness are exceeded, provided that such exceedance is due to expenditure on social support, acquisition of health equipment and other measures to fight the effects of the COVID-19 pandemic (article 5 of Law 4-B/2020). Such exceedance is also not taken into account for the indebtedness thresholds (article 5.3 of Law 4-B/2020, as amended by Law 35/2020, of 13 August).

In 2020 and 2021, local government and intermunicipal entities are not bound by the thresholds foreseen in the Local Government Financing Law which establishes that, in each year, entities can only increase their margin available by 20% (article 2.1 of Law 35/2020).

The City Hall may exempt (full or partial) payment of certain local taxes, event without any regulation, but only in duly ground exceptional circumstances related to COVID-19. In such cases, the exemption cannot last longer than 2020 (article 2.º/1 of Law no. 6/2020).

In exceptional circumstances, in duly grounded situations directly related to the unavoidable expenditure borne within the context of the fight against COVID-19 disease, the City Hall and Parishesmay enter into loans without prior authorization from the municipal or local (parish)assembly, provided that such loans are destined to cover urgent expenditure related to COVID-19 (but the municipal or local (parish) assembly shall ratify such loans afterwards) (article 3.º/1 of Law no. 6/2020, as amended by Law no. 12/2020).

The deadline for spending the cash-flow provided by medium or long-term loans (which is 2 years maximum) is suspended (article 6.º/1 o Law no. 6/2020).

Medium or long-term loans may be used to cover urgent expenditure related to COVID-19 without prior authorization from the municipal assembly (but the municipal assembly shall ratify such loans afterwards) (article 6.º/2 of Law no. 6/2020).

In 2020, municipalities are not obliged to maintain a balanced budget (meaning, it is not required that revenues are at least equal to regular expenditure and to the amortization of medium and long-term loans) (article 7.º of Law no. 6/2020).

Expenditures on equipment, goods and services to fight the effects of the COVID-19 disease, from 12 March to 31 December 2020, are eligible for financing through the Social Municipal Fund (article 3-A of Law no. 4-B/2020, added by Law no. 12/2020, of 7 May and further amended by Law 35/2020).

Municipalities benefit from a 12-month moratorium on the contributions to be made in 2020 to the share capital of the Social Municipal Fund, and might also benefit from a 12-month moratorium on amortization of the outstanding amounts until the end of 2020 regarding financial aid loan agreements (articles 3-B/1 and 3-C of Law no 4-B/2020, added by Law no. 12/2020).

A 12-months moratorium shall also apply to the installments payable in 2020, with regards to the repayment of the State guaranteed loan for the paying up of the share capital of the Municipal Support Fund (article 3-B of Law no. 4-B/2020, added by Law no. 12/2020).

Expenditures on equipment, goods and services associated to the fight against COVID-19 incurred by local sector entities may be included in the respective budget by means of a budgetary amendment, approved by the chairman of the executive body, without prejudice of the ratification of the deliberative body, once in conditions to hold meetings (article 7-A of Law no. 6/2020, added by Law no. 12/2020; Law 25/2020 further clarified that this rule was in force until 30 June 2020).

If the financial year of 2020 of a local company is affected by the emergency situation arising from COVID-19, such financial year is not taken into account for the purposes of determining whether local companies shall be dissolved, pursuant to the law (article 7-F of Law no. 6/2020, added by Law no. 12/2020; pursuant to Law no. 35/2020, this rule will in force until 31 December 2020).

Under a technical and financial cooperation agreement to be executed, the acquisition of acrylic protection barriers for face-to-face service stations in the Espaços Cidadão and Lojas de Cidadão managed by the municipalities (up to 90% of the total cost of the acrylic barrier, with a ceiling of EUR 54 per unit), can be financed through a simplified financing procedure (article 13-D of Decree-Law no. 10-A/2020, added by Decree-Law no. 20-D/2020 of 12 May).

 

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This information is being updated on a regular basis.

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.