16. Human Rights and Private Law in Portugal

This part is written by Luís Fábrica.

This part is written by Geraldo Ribeiro.

This part is written by André Dias Pereira.

The main differences between contractual liability and non-contractual liability in Portuguese law are the following: (1) 1he debtor is presumed to have acted in fault in case of non-performance or defective performance of a contractual duty (Article 799 (1)); (2) Limitation period in tort law is 3 years (Article 497) and 20 years in contract (Article 309). The cumul of contractual and extra-contractual liability (“Anspruchsnormen-konkurrenz”) is accepted by literature and case law, and plays an important role in cases of medical liability and transport liability. Case law accepts that non-pecuniary damages may be compensated under contract law.

Similarly, Supreme Court of Justice decision of 11 December 2008 (08B2935).

De facto union or unmarried partnership is only protected by law after the existence of a relationship akin to marriage which has subsisted for two years and the legal protection is still different from marriage, especially since there are no inheritance rights, no personal duties and no system of acquisition of goods and liability for debts. There is no registration on the process. Rights can be claimed after a couple lives together for two years. An application of joint tax assessment can be made to prove the union but it is not required.

Similarly the Charter of Fundamental Rights of the European Union also declares the “rights to marry and the right to found a family”. As the Constitutional Court observed, this formulation is generally interpreted as protecting both marriage and other forms of relationship (vg, de facto cohabitation).

A different Act, Law 6/2001, 11 May, protects – although with fewer legal effects – those people who share a home and a domestic economy but do not necessarily have sexual relations: mere friends or homosexuals who do not wish to overtly publicise their relation.

Article 281 (3) Constitution: “The Constitutional Court also has jurisdiction to review and give generally binding rulings on the unconstitutionality or illegality of a legal rule, the application of which it has held to be unconstitutional or illegal in three appeals.”

Previous no. 3 became no. 4.

De facto union was introduced for opposite-sex couples in 1 July 1999 and extended to same-sex couples by the Act of 11 May 2001 and, since 5 June 2010, Portugal also recognizes same-sex marriage, with de facto unions remaining as an alternative to couples (same-sex or opposite-sex) who do not wish to marry.

See for this specific damage, the decisions of the Court of Appeal of Porto of 26 June 2003 (0333036), Coimbra Court of Appeal of 25 May 2004 (3480/03) and also one decision of the Supreme Court of 8 March 2005 (05A395).

See PETL: Art 10:301. Non-pecuniary damage (1) (…) Non-pecuniary damage can also be the subject of compensation for persons having a close relationship with a victim suffering a fatal or very serious non-fatal injury.

Portugal has ratified Protocol No. 12 to the European Convention on Human Rights and the Framework Convention for the Protection of National Minorities by Decree of 25 June 2001 and the European Charter for the Protection of Regional and Minority Languages. On 25 August 2001, Portugal has issued a declaration under Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination recognising the competence of the Committee set up under this Convention to receive and consider communications from individuals.

See Article 7 of the Charter of Fundamental Rights of the European Union.

The doctrine of Drittwirkung or horizontal effect of fundamental rights is prescribed in Article 18 of the Constitution and dominant in Portugal.

This part is written by Mónica Jardim and André Dias Pereira.

By horizontal effect, we mean that there is a conflict of interests between two private parties and the Courts scrutinize whether the law or the interpretation of the law was violating in a disproportional way a basic right.

This part was written by Mónica Jardim and André Dias Pereira.

This part is written by Alexandre L.D. Pereira.

Enacted by Decree-Law No 36/2003 of 5 March, as last amended by Decree-Law No 52/2008 of 28 August.

Enacted by Decree-Law 63/85 of March 1985, as last amended by Law No 48/2015 of 5 June.

Decree-Law No 252/94 of 20 October.

Decree-Law No 122/2000 of 4 July.

Decree-Law No 332/97 of 27 November.

Decree No 333/97 of 27 November.

Decree-Law No 62/98 of 1 September.

Law No 26/2015 of 14 April.

Notably the Paris Convention for the Protection of Industrial Property (1883), as revised by the Stockholm Act (1967); the Berne Convention for the Protection of Literary and Artistic Works (1886), as revised by the Paris Act (1971); the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, adopted at Rome on 26 October 1961 (Rome Convention); the European Patent Convention, signed at Munich on 5 October 1973 (revised in 2000); the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS 1994).

E.g. Council Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products (OJ L 24, 27.1.1987, p. 36–40); Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ L 299, 8.11.2008, p. 25–33, which repealed Council Directive 89/104/EEC of 21 December 1988); Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJ L 213, 30.7.1998, p. 13–21); Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs (OJ L 289, 28.10.1998, p. 28–35).

Instruments that create unitary rights are: Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ L 227, 1.9.1994, p. 1–30) (as last amended by Council Regulation (EC) No 15/2008 of 20 December 2007); Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products (OJ L 198, 8.8.1996, p. 30–35); Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ L 3, 5.1.2002, p. 1–24); Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ L 78, 24.3.2009, p. 1–42, which repealed Council Regulation (EC) No 40/94, OJ L 11, 14.1.1994, p. 1).

Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market; Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works; Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (OJ L 111, 5.5.2009, p. 16–22, which repealed Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, OJ L 122, 17.5.1991, p. 42, as amended by Directive 93/98/EEC); Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ L 248, 6.10.1993, p. 15–21); Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ L 77, 27.3.1996, p. 20–28); Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (OJ L 167, 22.6.2001, p. 10–19); Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art (OJ L 272, 13.10.2001, p. 32–36); Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ L 376, 27.12.2006, p. 28–35, which repealed Council Directive 92/100/EEC, OJ L 346, 27.11.1992, p. 61, Council Directive 93/98/EEC, OJ L 290, 24.11.1993, p. 9, Article 11(2), and Directive 2001/29/EC of the European Parliament and of the Council, OJ L 167, 22.6.2001, p. 10, Article 11(1)); Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (OJ L 372, 27.12.2006, p. 12–18, which repealed Directive Council Directive 93/98/EEC, OJ L 290, 24.11.1993, p. 9).

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004, p. 45–86).

Other EU instruments of harmonization may have an impact on intellectual property rights, notably Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (OJ L 178, 17.7.2000, p. 1).

The prohibition of unfair competition, including the protection of undisclosed information, is also provided by the Code of Industrial Property.

Decree-Law No 122/2000 of 4 July, Chapter III, Articles 12–17.

http://​www.​curia.​europa.​eu/​.

The regulation of copyright levies is provided for by Law No 62/98 of 1 September 1998, last amended by Law No 48/2015 of 5 June.