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.

 

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 calamity?

Through Council of Ministers Resolution no. 92-A/2020, of 31 October, the Government declared a situation of calamity across the entire national territory until 11:59 p.m. of 19 November 2020.

Without prejudice to the comments on each specific aspect, the aforementioned regime annexed to the Resolution sets forth, notably, the obligation of confinement – in a healthcare facility, at home  or at another location determined by the health 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 2/1).

Under the applicable measures, employers are under the obligation to guarantee adequate health and safety conditions for their workers, to prevent any risks of contagion arising from the COVID-19 pandemic, and the possibility of adoption of the teleworking regime which is now mandatory when requested by the employee (provided certain conditions are met), , without prejudice of other situations where the adoption of teleworking is mandatory (for more information on this topic, please see the Section Labour Issues.

Several premises and establishments are closed (article 3 and Annex I), being, however, able to operate upon the issuance of Government authorization through technical reports on their operation by the Directorate General for Health.

It is still mandatory for private vehicles with a capacity exceeding 5 people to transport only two-thirds of their capacity (except when all occupants are part of the same household). Occupants being required, as a rule, to wear a mask or visor (Article 8).

As a rule, celebrations and other events entailing a gathering of more than 5 people are banned, although some celebrations and events can be authorized by the members of Government responsible for home affairs and healthcare, in duly justified situations (article 13/1 and 6). In this regard, the General Directorate of Health must establish specific guidelines for religious services (including community services), family events (including weddings and baptisms, civil and religious ceremonies, and other commemorative events), whit no more than 50 people, and corporate events held in suitable venues for this purpose (notably, congress centres, tourism establishments, venues for the holding of trade fairs and open air spaces (article 13/2). 

Public services will, preferably, maintain their face-to-face services by appointment and these services will continue to be provided by digital means and through the contact centres for citizens and companies (article 19/1). Services open to the public must comply with several hygiene rules, may adjust the opening hours and shall provide preferential treatment to healthcare professionals and elements from security, protection and rescue and armed forces and social support services (articles 8, 11 and 19/2). Without prejudice to the face-to-face service following an appointment, the priority service for people with disabilities, elderly people, pregnant women and people with small children (under the terms of Decree-Law 58/2016 of 29 August 2016) is carried out without prior appointment (article 19/3).

Retailers and services providers, including those located in commercial centres, which have resumed their activity under the Council of Ministers Resolutions published after the end of the state of emergency are not allowed to open for business before 10 am (article 10/1), and shall close between 8 pm and 11 pm. The specific closing hour can, however, be established by the mayor of the local authority with territorial jurisdiction, with the favourable opinion of the local health authority and security forces (article 10/3). There are, however, several exceptions to this rule, which shall not apply to restaurants serving meals in the establishment itself, take-away and home delivery (either directly or through an intermediary) restaurants and similar businesses, schools, cultural centers or sports clubs, pharmacies, medical offices and clinics (namely dental clinics and veterinarian emergency doctors) as well as funerary services and related activities , rent-a-cargo and rent-a-car businesses and businesses inside the airports, in the passenger reserved area (article 10/5);

The opening hours of retailers and services providers may be adjusted in order to guarantee that the opening or closing hours do not overlap. The joint decision falls on the respective managers, at their own discretion, or on the member of the Government responsible for the economic area, in which case the closing hours may be postponed for an equivalent period within the established limits and rules (article 10/6).

Service areas and petrol stations (article 5/1) are prohibited from selling alcoholic beverages. Retail establishments, including supermarkets and hypermarkets are also prohibited from selling alcoholic beverages from 8 pm onwards. Consumption of alcoholic beverages in public outdoor spaces is also prohibited, except in the outdoor spaces of restaurants and bars duly licensed for such purpose (article 5/2).

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 shall be in force for a 70-days transitory period, with the possibility of renewal after such period (article 9) –, people older than 10 years 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).

Decree no. 8/2020, of 8 November, through which the Government has established the rules for the operation of the state of emergency declared by the President of the Republic, foresees the possibility to take 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 (article 4/1).

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 4/3). 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 4/4).

Access to the site can be denied (article 4/5) 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 5/1):

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

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

c)       Workers, users and visitors of residential care facilities for the elderly, integrated continuous care units of the National Network of Integrated Continuous Care and other services dedicated to the elderly, as well as to children, juveniles and people with disabilities;

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 place for the purpose of transporting and guarding prisoners, such as health units and courts, ; (v) other users of the services of the DGRSP, whenever they wish to access and stay in their 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 7/1).

Epidemiological surveys, screening of patients with COVID-19 and the monitoring people under active surveillance can be carried out by non-health professionals (article 7/2). 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 8/2).

The Council of Ministers Resolution no. 92-A/2020 and Decree no. 8/2020 have also established specific provisions applicable to 121 municipalities (including, among others, the municipalities of Lisbon, Porto, Amadora, Sintra, Cascais, Setúbal, Aveiro, Mafra, Seixal, Castelo Branco, Sesimbra and Beja). In such municipalities, citizens must refrain from circulating on public areas and roads, as well as on private spaces and streets similar to public roads and stay home (article 28/1 of Council of Ministers Resolution no. 92-A/2020).

Circulation is however permitted in several cases, which cover, among others, the acquisition of goods and services, the performance of professional activities or similar activities (including the activity of the federated athletes and respective coaches, as well parasports’ escorts), job search or response to a job offer, for health reasons, for emergency accommodation of victims of domestic violence or trafficking in human beings, as well as of children and young people at risk, for the care of vulnerable and disabled people, children, parents, the elderly or dependants, to attend school, day-care centres and leisure activities (in the case of minors and their accompanying persons), or to access cultural facilities are, however, admitted (article 28/2 and 4).

In any event, all displacements must comply with the recommendations and orders established by the health authorities and the security forces and services, in particular those concerning the social distancing (article 28/5).

In the municipalities covered by these derogation measures, all retail and service establishments, as well as those in commercial complexes, must close by 10 p.m., with the exception of, in particular, restaurants (which must close by 10.30 p.m.), restaurants and similar establishments exclusively for the provision of home delivery services (which must close by 1 a.m.), pharmacies and non-prescription sales outlets, medical offices and clinics (in particular dental clinics and emergency medical centres), funeral and related activities, rent-a-cargo and rent-a-car services (which may, where their opening hours so permit, close at 1 a.m. and reopen at 6 a.m.), as well as establishments inside airports in mainland Portugal, following passenger security checks, and cultural facilities (which must close at 10.30 p.m.) (article 28 /6).

In such municipalities, celebrations and other events involving more than five people are also not permitted, unless the participants are members of the same household. Trade fairs and itinerant markets are also not allowed, unless authorized by the mayor, when safety conditions are met, and the guidelines established by the DGS are complied with (article 28/8).

Furthermore, in these municipalities, teleworking is compulsory under the law (article 28/10).

Article 3 of Decree no. 8/2020 has also established that, in the municipalities concerned, from 11pm to 5am, as well as on Saturdays and Sundays from 1pm to 5am, citizens may only circulate in public spaces and roads, or in private spaces and roads equivalent to public roads, in the following situations:

a) Commute to work or similar activity, evidenced by:

i) A statement issued by the employing entity or similar entity;

ii) A statement issued by person concerned, when self-employed, individual entrepreneur or member of corporate bodies;

iii) A sworn statement issued by person concerned, in the case of agricultural, livestock breeding and fishery workers;

b) Commutes in the course of, or in connection with, the performance of their duties, without the need for any statement from the respective employing entity or equivalent:

i) Of health professionals and other workers in health and social care institutions:

ii) Of civil protection officers, security forces and services, military, militarized and civilian personnel of the Armed Forces and inspectors of the Food and Economic Security Authority (Autoridade de Segurança Alimentar e Económica);

iii) Of officers of the sovereign bodies, heads of social partners and political parties with seat in the Parliament and individuals holding a laissez-passer issued in accordance with the law;

iv) Of ministers of religion, through accreditation by the competent bodies of the respective church or religious community, in accordance with paragraph 2 of article 15 of Law no. 16/2001, of 22 June, as amended;

v) Of staff of diplomatic missions, consular posts and international organisations located in Portugal, insofar as they are related to the performance of official duties;

c) For health reasons, namely, to purchase products in pharmacies or to seek health care and transport people to whom such care should be provided to;

d) Visits to grocery shops, supermarkets and other establishments selling food and hygiene products for people and animals;

e) For emergency accommodation in a residential or family home of victims of domestic violence or human trafficking, as well as of children and young people at risk, following a decision from a judicial authority or the Commission for the Protection of Children and Young People (Comissão de Proteção de Crianças e Jovens);

f) To provide assistance to vulnerable individuals, people with disabilities, children, parents, the elderly or dependants;

g) For other compelling family reasons, including the compliance with the shared custody provisions, as determined by agreement between the parents or by the competent court;

h) Visits from veterinarians, animal keepers for urgent veterinary care, caretakers of colonies recognised by the municipalities, volunteers from animal welfare associations who need to go to animal shelters, and animal rescue teams for urgent assistance;

i) Necessary trips for the exercise of freedom of the press;

j) Short walks, to enjoy the outdoors, unaccompanied or with members of the same household;

k) Short walks for pet walks;

l) For other force majeure reasons or for reasons of absolute necessity, provided they prove to be unavoidable and duly justified;

m) To return home in case of the displacements and commutes mentioned in the previous paragraphs and in the case of the “permitted commutes” foreseen in Council of Ministers Resolution no. 92-A/2020.

Such permitted commutes under the previous paragraphs should preferably be made unaccompanied and should comply with the recommendations and orders determined by the health authorities and the security forces and services, in particular those relating to social distancing (article 3 / 4).

 

 

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. 51-U/2020 which introduced the second declaration  of the state of emergency):

a) Right of movement and settlement anywhere in the national territory (the public authorities may impose any restrictions required to reduce the risk of contagion and implement measures to prevent and combat 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);  )

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);

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);

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).

 

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 23 November 2020, 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.