Legal Alert | Commission for equality and against racial discrimination

On 15 January 2024, Law 3/2024 was published in the Portuguese Official Gazette, which is already in force, and aims to (i) create the Commission for Equality and Against Racial Discrimination (CICDR) and (ii) amend Law 93/2017 of 23 August, which establishes the legal regime for the prevention, prohibition and combatting of discrimination based on racial and ethnic origin, colour, nationality, descent and territory of origin.

Creation of the CICDR

Law 3/2024 of 15 January creates the CICDR, as an independent administrative entity, endowed with authoritative powers and with its own annual budget.

Formerly part of the High Commission for Migration (Alto Comissariado para as Migrações, I.P.), which has since ceased to exist, the CICDR will now operate with the Assembly of the Republic.

The CICDR is composed, in its extended format, of the Chair, elected by the Assembly of the Republic, one representative appointed by each parliamentary group, several persons appointed by the Government, by Regional Governments, by immigrant, anti-racist and human rights associations, by Roma communities and structures representing workers, by representatives of employers' associations and other persons of recognised merit (co-opted by the other members).

The CICDR is responsible for applying the legal framework for preventing, prohibiting and combatting discrimination, on the basis of racial and ethnic origin, colour, nationality, language, descent and territory of origin, established by Law 93/2017 of 23 August.

In this context, we highlight the following powers:

1. Collecting information on discriminatory practices and the application of the respective penalties;
2. Publication of cases where anti-discrimination laws are breached;
3. Recommendation for the adoption of appropriate legislative, regulatory and administrative measures to prevent, prohibit and combat discrimination, and making recommendations to public authorities on any related issue;
4. Proposing measures to remove laws, regulations and administrative provisions contrary to the principle of equality and non-discrimination;
5. Providing victims of discrimination with the information necessary to defend their rights;
6. Receipt of complaints and commencement of administrative offence proceedings;
7. Deciding on and imposing fines and ancillary penalties in connection with administrative offence proceedings; and
8. Preparation of periodic statistical information.

The CICDR also produces an annual report on the equality and non-discrimination situation, including the information gathered about discriminatory practices and penalties applied. This report is sent to the Assembly of the Republic and then published on the Commission's website (the most recent being the2022 Report).

Law 3/2024 of 15 January establishes a duty of cooperation between any public and private entities and the Commission, in particular for the provision of the data requested in the context of administrative offence proceedings and in the preparation of its annual report.

The CICDR has its own support services, namely a law and sanctions unit and a unit dealing with projects, public-relations and international affairs, whose human and financial competences and resources will be defined in specific legislation by the Assembly of the Republic.

With regard to standing to lodge a complaint, Law 3/2004 of 15 January establishes that any person, whether natural or legal, who becomes aware of a discriminatory practice may notify the Commission thereof pursuant to this law.

All decisions regarding discriminatory practices based on racial and ethnic origin, colour, nationality, descent and territory of origin issued by the courts and competent public entities must be communicated to the CICDR within 10 (ten) days.

Prevention, prohibition and combatting discrimination

The delimitation of the scope and powers of action of the CICDR, in particular in matters relating to administrative offences, implies connecting with the legal regime for the prevention, prohibition and combatting of discrimination, on the grounds of racial and ethnic origin, colour, nationality, descent and territory of origin, established by Law 93/2017 of 23 August.

According to article 4 of Law 93/2017 of 23 August, any form of discrimination is prohibited, and the following practices are considered discriminatory on grounds of racial and ethnic origin, colour, nationality, descent and territory of origin:

1. Refusal to supply or impediment to the enjoyment of goods or services made available to the public;
2. Obstruction or limitation of access to and normal pursuit of an economic activity;
3. Refusal or conditioning of sale, letting or subletting of properties;
4. Refusal or limitation of access to public places or premises open to the public;
5. Refusal or limitation of access to healthcare provided in public or private healthcare establishments;
6. Refusal or limitation of access to public or private educational or teaching establishments;
7. Establishment of classes or adoption of other internal organisation measures in public or private educational or teaching establishments, according to discriminatory criteria;
8. Refusal or limitation of access to cultural enjoyment;
9. Adoption of a practice or measure by any body, service, entity, company or employee of the direct or indirect administration of the state, autonomous regions or local authorities, which hinders or restricts the exercise of any right; and
10. Publicly or with the intention of extensive disclosure, releasing a statement or information through which a person or group of persons is threatened, insulted or demeaned on grounds of racial and ethnic origin, colour, nationality, descent and territory of origin.

Any of these practices constitutes an administrative offence, punishable by a fine ranging from one to ten times the value of the social assistance index (IAS)¹, when carried out by a natural person, and from four to twenty times that value when carried out by a legal person.

Depending on the seriousness of the discriminatory practice and the fault of the defendant, additional penalties may be imposed alongside the fines in accordance with the General Scheme of Administrative Offences.

Associations and non-governmental organisations whose statutory purpose is essentially to prevent and combat discrimination have standing to intervene in the administrative offence proceedings and may even request to become parties to the same.

The Commission's final rulings shall be publicly disclosed, by extract, including at least the identification of the convicted legal person, information on the type and nature of the discriminatory practice, as well as the fines and ancillary penalties imposed.

_______________________