The state of emergency started in Portugal at 00.00 a.m. of 19 March, enacted through Decree of the President of the Republic no. 14-A/2020, of 18 March. Having been renewed twice through Decree no. 17-A/2020, of 2 April, and Decree no. 20-A/2020, of 17 April, the state of emergency was extended until 11:59 p.m. of 2 May, having been terminated thereafter.

From then on, the state of calamity became effective, enacted by the Government through Council of Ministers Resolution no. 33-A/2020, of 30 April, approved pursuant to the terms of article 19 of the Legal Framework of Civil Protection, enacted by Law no. 27/2006, of 3 July, and extended for the first time by Council of Ministers Resolution no. 38/2020, of 15 May, further extended by Council of Ministers Resolution no. 40-A/2020, of 29 May, further extended by Council of Ministers Resolution no. 43-B/2020, of 9 June, further extended by Council of Ministers Resolution no. 51-A/2020, of 25 June, and finally extended by Council of Ministers Resolution no. 53-A/2020, of 14  July. Later on, the situation of contingency in the Lisbon Metropolitan Area and the situation of alert in all national territory (with the exception of the Lisbon Metropolitan Area) was enacted through Council of Ministers Resolution no. 55-A/2020, of 30 July, further amended and republished by the Council of Ministers Resolution no. 63-A/2020, of 13 August, and further amended by the Council of Ministers Resolution no. 68-A/2020 of 28 August and kept in force by the Council of Minister Resolution no. 70-A/2020, of 10 September, amended by the Council of Minister Resolution no. 81/2020, of 24 September. The former two resolutions were subsequently revoked by Council of Ministers Resolution no. 88-A/2020 of 14 October.

Later on, the Council of Ministers Resolution no. 92-A/2020, of 31 October  enacted the situation of calamity in all all national mainland territory until 11:59 pm on 19 November 2020. Following the Parliament's authorization, granted under the Parliament’s Resolution no. 83-A/2020, of 6 November, the Presidential Decree no. 51-U/2020, of 6 November, enacted the state of emergency in all national territory, for 15 days, from midnight on 9 November 2020 up until 11:59 pm on 23 November 2020. Following the authorization granted by the Resolution of the Assembly of the Republic no. 83-A/2020, of 6 November, a state of emergency was declared, through the Decree of the President of the Republic no. 51-U/2020, of 6 November, for the entire national territory, with a duration of 15 days, which, following the authorization granted by Resolution of the Assembly of the Republic no. 87-A/2020, of 20 November, was renewed for another 15 days (under the terms of Presidential Decree no. 59-A 2020, of November 20, regulated by Decree no. 9/2020, of 21 November and, with regard specifically to the Autonomous Region of the Azores, by Regional Regulatory Decree no. 27-A/2020/A) and was again renewed for an equal period under Decree of the President of the Republic 61-A/2020, of 4 December 2020, under the authorization, granted under the Parliament’s Resolution no. 89-A/2020, of 4 December, the second renewal of the state of emergency was regulated, for all national territory, by Decree no. 11/2020, of 6 December, and, in the Autonomous Region of the Azores, by the Regional Regulatory Decree no. 27-C/2020/A.

The state of emergency was renewed for a further fortnight by Decree of the President of the Republic 66-A/2020, of 17 December 2020, in accordance with Parliament’s enabling act enacted by Parliament Resolution 90-A/2020, of 17 December 2020.Government implemented the above renewal of the state of emergency by means of Decree 11-A/2020, of 21 December 2020, which amended and reenacted Decree 11/2020, of 6 December 2020, and in the Autonomous Region of Azores, by means of Regional Regulatory Decree 28-D/2020/A. Recently, by means of Parliament’s Resolution 1-A/2021, of 6 January, which was implemented by the Decree of the President of the Republic 6-A/2021, of 6 January, the state of emergency was renewed for a further 8 day period. Government implemented the above renewal by means of Decree 2-A/2020, of 7 January.

The state of emergency was further amended and renewed  for a fortnight by Decree of the President of the Republic 6-B/2021, of 13 January 2021 , in accordance with Parliament’s enabling act enacted by Parliament Resolution 1-B/2021, of 13 January 2021. Such amendment and renewal were implemented by the Government, nationwide, by means of Decree 3-A/2021, of 14 January 2021, further amended by Decree 3-B/2021, of 19 January 2021, and Decree 3-C/2021, of 22 January 2021, and in the Autonomous Region of Azores, by means of Regional Regulatory Decrees  1-B/2021/A and 1-C/2021/A.

Following Parliament’s enabling act enacted by Parliament Resolution 14-A/2021, of 28 January 2021, the state of emergency was further renewed by Decree of the President of the Republic 9-A/2021, of 28 January 2021, and is to be in force from 0.00 on 31 January 2021 to 11.59pm on 14 February 2021. Such renewal was implemented by the Government, nationwide, by means of Decree 3-D/2021, of 29 January 2021, and in the Autonomous Region of Azores, by means of Regional Regulatory Decrees 1-E/2021/A, of 5 February 2021, and 1-F/2021/A, of 12 February 2021.

Finally, following Parliament’s enabling act enacted by Parliament Resolution 63-A/2021, of 11 February 2021, the state of emergency was further renewed by Decree of the President of the Republic 11-A/2021, of 11 February 2021, and is to be in force from 0.00 on 15 February 2021 to 11.59pm on 1 March 2021. Such renewal was implemented by the Government, nationwide, by means of Decree 3-E/2021, of 12 February 2021.

 

 

STATE OF CALAMITY

 

What is a state of calamity and when can it be declared?

The state of calamity can only be declared when, in light of the occurrence or risk of a serious accident or catastrophe (as defined by law), and its foreseeable intensity, it is deemed necessary to adopt derogatory measures to prevent, react or restore normal living conditions in the areas affected by its effects (article 9/3 of the Legal Framework of Civil Protection).

The Resolution of the Council of Ministers which enacts the state of calamity clearly states (i) the nature of the event which originated the declared situation, (ii) its territorial and temporal scope, (iii) the implementation of specific guidelines relating to the operation of civil protection agents and entities and institutions involved in the protection and rescue operations, (iv) the procedures for damage inventorying and assessment of losses, and (v) the criteria for granting material and financial support (article 21/1 of the Legal Framework of Civil Protection).

 

What are the potential impacts?

The declaration of the situation of calamity may provide for (i) the civil mobilization of people, for specific periods of time, (ii) the setting of limitations or conditions to the mobility of people, other living beings or vehicles, for their own and the operations safety, (iii) the setting of sanitary and safety enclosures, (iv) the streamlining of use of public transportation, communications and water and energy supply services, as well as the use of basic goods (article 21/2 of the Legal Framework of Civil Protection).

The declaration of the state of calamity determines the triggering of local political and institutional coordination structures and entails the automatic engagement of the civil protection emergency plans at the respective territorial level (article 21/3 and 4 of the Legal Framework of Civil Protection).

Furthermore, among other effects and consequences, declaration of the state of calamity:

(I) is a sufficient condition to justify free access of civil protection agents to private property in the covered area, as well as the use of private natural or energy resources, to the extent necessary to carry out actions aimed at restoring normal living conditions (article 23/1 of the Legal Framework of Civil Protection).

(ii) entails the acknowledgement of the need to request goods or services on a temporary basis, notably regarding the verification of the urgency and the public and national interest on which the request is based (article 24/1 of the Legal Framework of Civil Protection).

(iii) enables the dismissal of employees, agents and other Public Administration employees who are also civil protection and rescue agents to be authorized when they are called to face an event that has been declared a calamity (article 25/1 of the Legal Framework of Civil Protection).

Additionally, article 17 of the Law on Public Health Monitoring System, enacted through Law no. 81/2009, of 21 August, enables the member of the Government responsible for the health area to implement derogatory measures deemed indispensable in case of public health emergency, including the restriction, suspension or shut down of activities or separation of healthy people, transportation or goods which have been exposed, as a way to prevent the spread of the infection or contamination (no.1).

Similarly, the member of the Government responsible for the health area, upon proposal of the Director General for Health, may issue guidelines and regulatory rules in the exercise of its  authority powers, with immediate enforceability, in situations of public health emergencies, with the purpose of making feasible the contingency rules for epidemics or other measures considered indispensable whose effectiveness depends on the promptness of their implementation (no. 2), with pro-rata criteria that respect fundamental rights, freedoms and guarantees, in accordance with the Constitution and the law (no. 3).

 

What concrete measures have been adopted with the declaration of the State of emergency?

By means of the above-mentioned Decree 3-A/2021, of 14 January 2021, further amended by Decrees 3-B/2021,3-C/2021 and 3-D/2021, and extended by Decree 3-E/2021, the Government regulated the amendment and renewal of the state of emergency enacted by the President of the Republic.

Without prejudice to the comments on each specific aspect, Decree 3-A/2021 sets forth, notably, the obligation of confinement – at home , in a healthcare facility, at nursing homes or other facilities accommodating the elderly, or another locations determined by the competent authorities – of COVID-19 patients and those infected with SARS-Cov2, as well as citizens for whom the health authority or other health professionals have determined active surveillance (article 3/1).

The Decree also establishes the general duty to stay home, being the citizens barred from moving in public spaces and roads, as well as in private spaces and roads which are treated in the same way as public roads. Everyone must stay at home, except for certain authorised displacements (article 4/1), such as, in particular, (i) for the purchase of essential goods and services,  (ii) to access public services and to participate in procedures before the legal authorities or in acts to be performed by notaries, lawyers, solicitors and registry officials, (iii) to work, provided that the worker is in possession of a statement issued by the employing entity or similar entity attesting such fact,  when teleworking is not an option, for job hunting or to respond to a job offer, (iv) for health reasons, namely to seek healthcare and to drive people in need of healthcare or for blood donation purposes, (v) to shelter victims of domestic violence or human trafficking, as well as to act on matters related to child protection services, notably the displacements of the respective commissions and teams who provide technical advice before the courts, and (vi) to attend to vulnerable, homeless or disabled people, children, parents, elderly or dependent individuals, or other compelling family reasons, in particular, the performance of shared parental duties, as determined by agreement between the parents or by the competent court (article 4/2).

In any event, all displacements must comply with the recommendations and orders determined by the health authorities and the security forces and services, in particular those concerning social distancing (article 4/4).

Under the applicable measures, teleworking becomes mandatory, regardless of the employment relationship or the type or nature of the legal bond, provided that it is compatible with the work carried out and the worker has the necessary conditions to carry it out, there being no need to obtain to parties agreement for such purposes (for more information on this topic, please see the Section Labour Issues).

The use of face masks or visors is mandatory in order to access or stay in workplaces which remain in operation whenever the physical distance recommended by the health authorities proves impractical (article 6/1).

As a temporary and derogatory measure, during the state of emergency, due to the pressing operational needs, employment contracts (regardless of their qualification) of healthcare professionals working at establishments incorporated in the SNS (National Health Service) cannot be terminated, either by decision of the employer or the employee (article 9/1). This also applies to the termination of employment contracts by means of revocation or resolution, as well as to the termination of public labor contracts, by means of agreement, prior notice or dismissal requested by the employee (article 9/2).

Measuring of body temperature with non-invasive methods when controlling access to the workplace, public services or institutions, educational establishments and commercial, cultural or sports venues, transports, residential structures, health establishments, prisons or educational centres is now allowed (article 7/1).

Measuring the body temperature must not prejudice the right to individual data protection - the recording of the body temperature associated with the person’s identity is expressly prohibited, except when expressly authorized (article 7/3). It may be carried out by an employee of the entity responsible for the place or establishment. There can be no physical contact with the person concerned, and it must be carried out by means of equipment suitable for this purpose, which may not contain any record of the measurements being taken (article 7/4).

Access to the site can be denied (article 7/6) to those who refuse to have their body temperature being measured or, when the measurement is taken, have a temperature higher than normal (38°C or higher, as defined by the DGS).

The following persons may be subject to body temperature measurement and diagnostic tests for SARS-CoV-2 (article 8/1):

a)       Workers, patients and visitors of health care establishments;

b)      Workers, students and visitors of educational and professional training institutions and universities;

c)       Workers, patients and professionals of rehabilitation and social inclusion centres, as well as temporary shelters and emergency accommodation centres  and, when applicable, visitors of residential care facilities for the elderly, integrated continuous care units of the National Network of Integrated Continuous Care and other facilities dedicated to the elderly, as well as to children, juveniles and disabled people , as well to those seeking and benefiting from international protection and victims of domestic violence and human trafficking;

d)      In prison services and educational centres: (i) prisoners in custody and juveniles in educational centres; (ii) persons who wish to visit those referred to in the previous paragraph; (iii) workers of the Prison Guard and other workers of the General Directorate for Rehabilitation and Prison Services (Direção-Geral de Reinserção e Serviços Prisionais - DGRSP), in the exercise of their functions and for the purpose of access to and permanence in the workplace; (iv) workers of the Prison Guard, who must access to and stay in other places for the purpose of transporting and guarding prisoners, such as health units and courts ; (v) other service providers and users of the DGRSP facilities, whenever they wish to access and stay in such facilities;

e)      Those who intend to enter or leave the national mainland or the Autonomous Regions by air or sea;

f)        Those wishing to access certain facilities for this purpose as determined by DGS;

In order to strengthen the screening capacity of the public health authorities and services, human resources may be deployed, in particular for epidemiological surveys, to screen patients with COVID-19 and to monitor people under active surveillance (article 11/1).

Epidemiological surveys, screening of patients with COVID-19 and monitoring people under active surveillance can be carried out by non-health professionals (article 11/2). The Armed Forces will participate in the epidemiological surveys and trace patients with COVID-19. Such participation must be coordinated by the respective management body (article 12). During the course of the epidemiological surveys, the screening of contacts of patients with COVID-19 and the monitoring of people under active surveillance, personal data, notably health data, may be processed for reasons of public interest in the field of public health, irrespective of the consent of the data subjects (article 13/1). Such data may be accessed to and handled by health professionals, medical or nursing students, as well as by any staff and members of the armed forces who have been deployed to improve screening capacity (article 13/2), all of whom are bound by a duty of secrecy or confidentiality (article 13/3).

Moreover, several facilities and establishments will be closed (article 14 and Annex I), without prejudice to the possibility granted to some establishments to operate, under ministerial order (article 19).

Retail and service-provision activities in establishments open to the public or on an itinerant basis are suspended, with the exception of those providing basic necessities or other goods deemed essential or providing basic services or other services deemed essential under the present circumstances (article 15/1 and Annex II). This suspension does not apply to wholesale establishments nor to establishments that wish to maintain their activity solely for home delivery purposes (article 15/2).

Suspension rules do not apply to establishments such as, for instance, grocery stores, mini-markets, supermarkets and hypermarkets, fruit shops, butchers' shops, fish markets and bakeries, fairs and markets, agri-food production and distribution, fish auction markets, restaurants(with restrictions), e-commerce activities, as well as service activities which are provided remotely, without contact with the public, or which operate through electronic platforms, medical or other health and social support services, pharmacies and non-prescription drug sales outlets, medical and orthopaedic product establishments, opticians, cosmetic and hygiene products establishments, natural and dietetic products establishments, essential public services and respective repair and maintenance (water, electricity, natural gas and piped liquefied petroleum gas, electronic communications, postal services, waste water collection and treatment services, sewage collection and treatment services, urban solid waste management and urban hygiene services and passenger transportation services) and facilities for water supply, waste water collection and treatment and/or waste generated within the framework of the activities or establishments referred to in Annex II and the authorised activities, stationery an tobacco stores (newspapers, tobacco), among others (Annex II).

Food retail activities close at 8pm on weekdays and at 5pm on Saturdays, Sundays and holidays (article 15/5). Other retail trade and service activities in establishments close at 8 pm on weekdays and at 1 pm on Saturdays, Sundays and holidays (article 15/4), with certain exceptions, such as (i) establishments where medical services or other health and social support services are provided, (ii) pharmacies, (iii) educational, teaching and vocational training establishments, (iv) tourist establishments and local accommodation establishments, among others (article 15/6).

Advertising, advertising activity or the use of any form of marketing communication, particularly in information society services, which may result in an increase in the number of people attending establishments open to the public, namely through the announcement of sales, promotions or liquidations, is also forbidden (article 15-A).

The establishments which remain in operation must comply with the following rules on occupation, presence and social distancing (article 20/1):

a)                   Spaces accessible to the public must follow the rule of maximum occupation of 0.05 people per square metre, with the exception of service establishments;

b)                  Implement measures to ensure people are 2 meters apart, unless otherwise specified or directed by DGS;

c)                   Make sure people are only inside for as little time as is strictly necessary;

d)                  Resort to advance booking mechanisms in service establishments, which are now prohibited from having people waiting inside the facilities;

e)                  Set the specific entry and exit circuits in establishments and facilities, using separate doors, when possible;

f)                    Comply with other rules determined by DGS;

g)                   Encourage the adoption of codes of conduct approved for certain sectors of activity or establishments.

Furthermore, establishments which remain in operation must comply with the following hygiene rules (article 20/4):

a)                   The service must be provided, and the goods must be transported in compliance with the hygiene rules determined by DGS;

b)                  Economic operators should arrange for the daily and periodic cleaning and disinfection of spaces, equipment, objects and surfaces which are in direct contact with clients;

c)                   Economic operators should promote the cleaning and disinfection, before and after each client' s use or interaction of automatic payment terminals (ATMs), equipment, objects, surfaces, products and utensils in direct contact with clients;

d)                  Economic operators must encourage workers and customers to refrain as much as possible from handling the products or equipment and unpackaged items, which should preferably be handled and handed over by workers;

e)                  In the case of exchanges, returns or take-back of used products, operators shall, when possible, ensure the products are cleaned and disinfected before they are made available for sale again, unless this cannot be done or whenever the products quality is compromised;

f)                    Other rules established in codes of conduct approved for certain sectors of activity or establishments.

Restaurants and similar establishments, regardless of the sales or service area, can operate on a home delivery basis, either directly or through an intermediary. Restaurants and similar establishments can also operate on a take-away basis by making packed meals or products available at the door or at the wicket (article 21/1).

Establishments are forbidden from selling any type of beverage at the door of for take-away. The consumption of meals or products at the door or in the vicinity of the establishment is also prohibited (article 21/2). In home deliveries, directly or through an intermediary, it is not allowed to supply any alcoholic beverages from 8 pm onwards (article 21/3).

Restaurants located in shopping centres can operate exclusively for home delivery purposes (either directly or through an intermediary), being barred from selling products at the door or for take-away (article 21/4).

Restaurants and similar establishments which intend to remain in operation on a home delivery basis, are exempt from obtaining the respective licences and may allocate its workers for the performance of such services, with their consent, despite not being part of the scope of their employment contracts (article 21/5).

Bars, other drinking establishments with no live shows and drinking establishment with dance floors must remain closed (article 22).

The selling of spirit drinks in service areas or at petrol stations and, from 8 p.m. onwards, in retail establishments, including supermarkets and hypermarkets, is prohibited (article 23/1), as well as the consumption of spirit drinks in open-air spaces accessible to the public, with the exception of the outside spaces of restaurants and drinks licensed for that purpose (article 23/3).

In addition, the decree sets caps for the fees and commissions charged by intermediate platforms in the catering and similar sectors (article 24/1) and the maximum prices for bottled liquefied petroleum gas (LPG) on steel standard containers (article 26/1).

Private vehicles with a capacity of more than 5 people are still only allowed to circulate with two-thirds of their capacity (except if all occupants live in the same household), and occupants must, as a rule, wear a mask or visor (article 28).

Lojas do Cidadão are closed, and in-person service is available by appointment only at the various service centres. The services will also be provided through digital media and contact centres with citizens and companies (article 31/3).

The Government members responsible for such service and for Public Administration may authorize other basic public services to operate (article 31/4).

The following activities are suspended: (i) early childhood support activities in kindergartens, home care centres and babysitters, social support activities developed in occupational activities centres, day centres, recreational activities centres and senior universities, and (ii) on-site teaching and non-teaching activities of higher education institutions, without prejudice to the current evaluation periods (article 31-A/1). Educational and teaching activities in public, private and cooperative educational establishments, in the social and solidarity sector, in pre-school, primary, middle and secondary education will carry remotely, without prejudice to the performance of international curricula tests or exams.

Each school group will identify an educational establishment and each municipality will identify  kindergartens, home care centres or babysitters who be responsible for taking care of children or other dependents in charge of a worker who, due to the mobilization for service or promptness is prevented from providing assistance thereto following the suspension provided for in article 31-A. Such workers must be:

a)       Health care professionals, security and rescue forces and services, including volunteer firefighters, and the armed forces;

b)      Workers from basic public services;

c)       Workers from institutions, social facilities or entities providing residential, health and social support to the elderly, people with disabilities, children and young people in danger and victims of domestic violence;

d)      Workers in management and maintenance services of key infrastructures as well as other essential services (article 31-B).

In-person educational activities carried out by public, private, cooperative or social training entities are also suspended (article 31-C/1). Such activities may be replaced by remote training, when possible, namely in what comes to compulsory vocational training required to access and perform professional activities upon authorization from the competent authority (article 31-C/2).

Decree 3-D/2021 has banned all Portuguese citizen from travelling out of the mainland country, by any means, including road, rail, air, river or sea (article 4/1), except for strictly essential travels, such as, for instance (i) for the performance of professional or equivalent activities, duly documented, in the context of activities at an international scale, (ii) to leave in the country, in case of Portuguese nationals living abroad, (iii) for family reunification of spouses and first-degree relatives in a direct ascending line (in exceptional circumstances); (iv) by the State’s or the Armed Forces’ aircrafts, vessels or vehicles, (v) for the transport of cargo and mail, (vi) for humanitarian or medical emergency purposes, and to access health care facilities covered by bilateral health care agreements, (vii) for technical stops for non-commercial purposes, (viii) for the international transport of goods, the transport of cross-border workers and seasonal workers with a documented employment relationship, the operation of emergency and rescue vehicles and emergency services, (ix) displacements of Sovereign Officers in the exercise of their duties and (x) trips to Autonomous Regions of Azores and Madeira (article 4/2). 

The same diploma also reintroduced checkpoints at the Portuguese land and river borders (article 5/1), banned all road traffic across internal land borders, regardless of the type of vehicle, with the exception of the international transport of goods, the transport of cross-border workers, and the operation of emergency and rescue vehicles and emergency services (article 5/3), and suspended rail traffic transportation between Portugal and Spain, except for goods transportation (article 5/4), as well as the river transportation between Portugal and Spain (article 5/5). Such measures are without prejudice to (i) the right of entry of Portuguese nationals and holders of Portuguese residence permits and (ii) the right of exit of Portuguese nationals who live abroad (article 5/6).

Immigration and Borders Service (SEF) will apply the border control measures and the National Republican Guard will carry out surveillance at the authorised crossing points (Article 5/2).

The diploma also foresees the possibility of suspending flights to and from certain countries and the imposition of mandatory confinement if the evolution of the epidemic so requires (article 6), as well as the possibility for the health care institutions under the SNS to reinforce their means by resorting to professionals with academic degrees awarded by a foreign higher education institution (article 7).

It should further be noted that Law no. 62-A/2020, of 27 October, has determined, by way of exception, the obligation to wear face masks to access, move and stay in public spaces and roads, in all national territory (articles 1 and 2).

Therefore, under said law – which was in in force for a 70-days transitory period, which was further renewed for a 9’-day period, by means of Law no. 75-D/2020, of 31 December,–, people from the age of 10 are obliged to wear a face mask to access, move and stay in public spaces and roads whenever the physical distance recommended by the health authorities proves impracticable (article 3/1), under penalty of incurring in the practice of an administrative offence (article 6).

This requirement is, however, waived (i) upon producing a medical certificate of multi-use incapacity or a medical statement (in the case of people with cognitive, development and psychological disabilities), or a medical statement attesting that the person's medical condition is not consistent with the use of face masks, as well as (ii) where the use of the face mask is incompatible with the nature of the activities the person is performing, or (iii) in respect of persons who are in the same household, where they are not in the vicinity of others (article 3/2).

The monitoring of compliance with the obligations laid down in this law falls to the security forces and the municipal police, who are primarily responsible for raising awareness and educating on the importance of wearing face masks in public spaces and roads when it is not possible to maintain social distance (article 5).

 

 

STATE OF EMERGENCY

 

What is a state of emergency?

After hearing the Government and obtaining the Parliament's authorization, the President of the Republic may declare a state of emergency, which allows ordering the partial suspension of the citizens’ rights, freedoms and guarantees based on the occurrence (or threat) of a public disaster.
A state of emergency can only be declared if a public disaster occurs or is threatened.
The state of emergency framework is laid down in Articles 19, 134(d), 138, 161(l) and 197.1(d) of the Constitution of the Portuguese Republic, and in Law 44/86, of 30 September 1986.

 

What are the impacts of the declaration of the State of Emergency?

In practical terms, the declaration of a state of emergency may involve the partial suspension of certain rights, freedoms and guarantees, as ordered: e.g. a ban on travel or on engaging in certain personal or business activities.
If necessary, civil administrative authorities can have their powers reinforced and be supported by the Armed Forces.
The declaration of a state of emergency grants public authorities with reinforced powers to take the necessary and adequate measures without observing any formalities (e.g., the Ministry of Health’s power to requisition human or material resources from private-law businesses).
Obviously, as a rule, the declaration of a state of emergency must abide by the principle of proportionality and be limited, in particular regarding its scope and duration and the resources used, to what is strictly necessary in view of the specific circumstances.

 

Can the State adopt just any measure?

The state of emergency cannot affect rights of superior constitutional dignity identified in the law and the Constitution. In particular, the declaration must abide by the principle of equality and non-discrimination, and some basic criminal procedure guarantees (e.g., against illegal arrests and detention) and access to courts. Moreover, it may not impose prior censorship of the media, or prevent meetings of the statutory bodies of political parties, trade unions and professional associations.
The declaration of a state of emergency may in no event affect the rights to life, to personal integrity, to personal identity, to civil capacity and citizenship, to the non-retroactivity of criminal law, the defendants' right of defense and to freedom of conscience and religion.
As for its content, the declaration must specify which rights, freedoms and guarantees are suspended.

 

Which concrete measures have been adopted in the State of Emergency?

In the present case, the state of emergency partially suspended the following rights (article 4 of the Decree of the President of the Republic no. 9-A/2021 which introduced the second declaration of the state of emergency):

a) Right of movement and displacement (which means the possibility of imposing restrictions in order to reduce the risk of contagion and implementing measures to prevent and fight the epidemic, including, if need be, banning all circulation in public roads during certain periods of the day or certain days of the week,  as well as banning all ungrounded displacements, as well as the mandatory confinement of persons infected with the SARS-CoV-2 virus or under active surveillance in a healthcare establishment, at home or, if not possible, at another location defined by the competent authorities, based on their best scientific knowledge); 

b) Private enterprise (public authorities may employ, preferably under an agreement, the health care resources, means and facilities in the private, social and cooperative sectors, subject to fair compensation, according to the extent necessary to ensure the treatment of patients with COVID -19 or the maintenance of health care services to other pathologies. 

Appropriate and indispensable measures may also be taken to ensure normal conditions in the production, transport, distribution and supply of goods and services deemed essential to the activity of the health sector, in particular to ensure the access and regularity in the circuit of medicinal products and vaccines, medical equipment and other health products such as biocides, disinfectant solutions, alcohol and personal protection equipment, as well as the total or partial closure of establishments, services, businesses or means of production and the imposition of changes to their regime or opening hours. The shutdown of facilities and establishments under this decree may not be used as grounds for terminating, early terminating or any other form of termination of non-residential rental contracts or other types of contract for the use of property. Measures may also be adopted to ban any advertising campaigns, which may result in an increase in the number of people at establishments open to the public, namely through the announcement of sales, promotions or liquidations, as well as any measures to control prices and combat speculation or the hoarding of certain goods or materials, as well as to limit the service charges and commissions charged to economic operators and consumers by home delivery intermediary platforms for in the sale of goods or the provision of services. The establishments which remain in operation may be subject to certain limitations on the sale of certain products – such limitations will not apply to books and school material, which will remain available for students and the public in general. In addition, it may also be established lower noise levels in decibels or at certain times in residential buildings so as not to disturb workers working from home.

c) Workers’ rights (public authorities may deploy any worker of public, private, social or cooperative entities, regardless of their type of relationship or professional activity and whether they are health professionals or not, namely civil servants in prophylactic isolation or covered by the derogatory protection regime for immunosuppressed and chronically ill people, to support health authorities and services, in particular in conducting epidemiological surveys, tracing contacts and monitoring people under active surveillance. The termination of employment contracts of employees of services and establishments incorporated in the SNS, as their request, may also be limited. Teleworking regime may be mandatory, regardless of the employment relationship, whenever the duties in question so allow and the worker has the necessary conditions to perform the same);

d) The right to the free development of personality and the negative component of the right to health ( it may be necessary to carry out non-invasive body temperature measurements and to carry out diagnostic tests for SARS-CoV-2, in particular for purposes of access to and permanence in the workplace or as a precondition to access public services or institutions, educational establishments and commercial, cultural or sports facilities, in the use of means of transportation or with regard to institutionalised persons or persons staying in residential structures, health establishments, prisons or educational centres and their respective workers);

e) Freedom to learn and freedom to teach (the competent public authorities may impose restrictions in order to reduce the risk of contagion and implement measures to prevent and fight the epidemic in all levels of education in the public, private and cooperative sectors, and in the social and solidarity sector, including pre-school education and basic, secondary and higher education, such as banning or limiting in-person classes, postponing, amending or extending teaching periods, adjusting  assessment methods and suspending or re-scheduling exams);

f) The right to the protection of personal data (the processing of personal data may take place to the extent strictly necessary, although in some cases it is not possible to keep a memory or record of the body temperature measurements taken or the results of the SARS-CoV-2 diagnostic tests. Health-related data can be accessed to and handled by health professionals, including laboratory technicians responsible for performing SARS-CoV-2 diagnostic tests, medical or nursing students, and other professionals).

g) Rights to move abroad or to leave from and return to national territory, and international mobility (border control checks on persons and goods , including sanitary and phytosanitary controls at ports and airports, with the aim of preventing the entrance into or exit from national territory or subjecting such entry or exit to the satisfaction of the necessary conditions to prevent the epidemic from spreading or the overload of the resources assigned to its control, may be established, namely by suspending or limiting arrivals or departures from or to certain places, imposing a compulsory diagnostic test for SARS-CoV-2 or the compulsory confinement and prophylactic isolation in a location to be determined by the competent authorities, with the Government being able to establish differentiated rules for certain categories of citizens, namely for professional or educational reasons, such as Erasmus students).

 

Can measures be imposed to just some parts of the territory?

A state of emergency may be declared regarding all or part of the national territory and must only be declared regarding such area or territory where the measures are deemed required to ensure or restore normality. Among others, measures can be adopted to restrict circulation or impose forced quarantine in certain areas.

In the present case, the state of emergency, which will be effective until 30 January 2021, covers the entire national territory, without prejudice to the fact that some municipalities are subject to a more restrictive regime.

 

How long can a state of emergency last?

A state of emergency shall only last for as long as strictly required to protect the rights and interests envisaged and to restore normality.
Maximum duration is 15 days, without prejudice to any renewal for one or more identical periods if the cause which determined it should subsist.

 

What are the consequences of breaching the measures ordered by the authorities during a state of emergency?

Any person breaching the provisions in Law 44/86 and in the declaration of a state of emergency (or in its implementation) may be punished for a crime of disobedience.

 

 

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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.