TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 825/2017

12 of December of 2017

Headnotes:

A legal norm made it a serious administrative offence for an employer not to fulfil a duty to notify the Working Conditions Authority (ACT) of the occurrence of accidents that “reveal the existence of a particularly serious situation, within twenty-four hours of the incident”. The Constitutional Court found this norm unconstitutional, on the grounds that it failed to meet the standards imposed by a number of constitutional principles, including legality, legal certainty and that crimes must be legally typified.

Summary:

I – The norm before the Court, which was derived from an interpretation of the original text of Article 111(1) and (3) of Law no. 102/2009 of 10 September 2009 (the Legal Regime governing the Promotion of Hygiene, Health and Safety at Work), said that it was a serious administrative offence for an employer to fail to fulfil a duty to notify the Working Conditions Authority (ACT) of the occurrence of accidents that “reveal the existence of a particularly serious situation, within twenty-four hours of the incident”. (The Court said that it was not relevant to the present case that the legislator had subsequently amended the precept in question by passing Law no. 3/2014 of 28 January 2014, under which employers are now required to inform ACT of “fatal accidents, as well as or those that reveal the existence of serious physical injury”.)

II – In Ruling no. 76/ 16 the Constitutional Court had already determined the unconstitutionality of Article 257(1) of Law no. 35/2004, regulating the Labour Code, which had placed employers “under a duty to notify the Working Conditions Authority, within twenty-four hours of the incident, of ‘accidents that are fatal or reveal the existence of a particularly serious situation’”. The breach of that duty was punishable as a serious administrative offence under Article 484 (2) of Law 35/2004 and Article 620(2) of the Labour Code.

III – Article 257 (1) of Law no. 35/2004 of 29 July 2004, was revoked by Article 12(1) (b) of Law no. 7/2009 of 12 February 2009, which approved a new Labour Code. In light of the clear similarity between the norm before the Court here and that addressed in Ruling no.76/16 – both cases involved a duty to notify applicable to work-related accidents “which reveal the existence of a particularly serious situation,” and the provision that breaches of that duty constituted serious administrative offences – the Court upheld the sense of its earlier decision and reached the same conclusion, again on the grounds that the norm violated the provisions of Article 29(1) of the Constitution (“No one may be sentenced under the criminal law unless the action or omission in question is punishable under a pre-existing law, nor may any person be the object of a security measure unless the prerequisites therefore are laid down by a pre-existing law”), even bearing in mind that the requirement that an offence must be legally typified is less demanding in the law governing administrative offences than in criminal law.