TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 60/2023

Headnotes:

In Ruling no. 60/2023, the Constitutional Court, upon a request by the President of the Republic, carried out the anticipatory review of a set of provisions contained in Decree no. 30/XV of Parliament, which approved a set of amendments to Law no 2/2013, of 10 January, a framework law on the creation, organization and operation of professional associations, concerning essentially the rules governing Portuguese public associations.

Summary:

The President of the Republic grounded the request on the potential incompatibility of the new legal framework with freedom of association and with what he termed the “principle of self-regulation” (Articles 47(1) and 267(4) of the Portuguese Constitution). The new legislation introduced new bodies, notably of supervision and control, exclusively composed by non-members and imposed a mandatory quota of non-members for other bodies. The President further highlighted the disproportionate interference in professional freedom, in the right to hold public office and in the principle of equality, more specifically when it precluded members from holding positions in the bodies of a professional association whenever they were in leadership positions in civil service (Articles 13, 18, 47, 50, 267, and 269 of the Portuguese Constitution).

The Constitutional Court started by denying constitutional protection to a principle of professional self-regulation through associations. The Justices noted that professional associations are part of the autonomous administration of the State and are intended to have a regulatory function in certain particular and specialized areas of activity through the transfer of State powers. Their creation and activity constitute important interferences in the (negative) freedom of association, of choice and of exercise of a profession, in the freedom to start and carry out an economic activity, and in an economic model based on competition. Having considered the above, the Court concluded that the imposition of limits to individual initiative through the creation of a professional association depends, first of all, on the existence of specific regulatory needs regarding an area of activity and, also, on other regulatory models proving insufficient or inadequate for carrying out that regulatory mission. The solution is thus exceptional in nature. The Constitutional Court, however, highlights that professional associations, once created in compliance with these requirements, benefit from the freedom of association enshrined in Article 46(2) of the Portuguese Constitution, notably in terms of management and representation. The concept may not, therefore, be subverted by introducing rules that make it devoid of autonomy or convert them in mere public bodies.

The Court then looked into the specific provisions that were the object of the request, more specifically: the creation of a new supervision body, mandatory for all professional associations, composed of non-members (Article 15-A); the mandatory integration (established in the by-laws) of non-members in the jury controlling access to the profession (Article 8(9)) and in the disciplinary body of the association (Article 15(2)(e)); the mandatory existence of an Ombudsperson to protect the interests of consumers (Article 20); and the incompatibility between members holding a position in the bodies of professional associations and the holding of leadership positions in civil service, without the need to verify the existence of a conflict of interest in each specific case (Article 19(2)(a)).

Regarding the supervision body (Article 15-A), the Constitutional Court noted that its powers are limited to the areas of compliance and supervision, and only with regard to the exercise of public powers by the professional association: controlling access to the profession and exercising disciplinary powers. It further highlighted that this is not about introducing into professional associations state agents or persons with a link to political power, but rather persons with qualifications related to the professional sector in question and which will render them more capable of carrying out their public mission. Finally, if a majority of non-members are established for this body (60%/40%), the law establishes that 80% shall be elected by the members of the associations, and the remaining 20% shall be co-opted, which preserves the logic behind associations and their autonomy.

All things considered, the Court concluded that the legislative amendment did not rob members of their predominant control of the activity of their associations according to a model of self-regulation. It also concluded that the plurality and powers afforded to the supervision body would counter the tendency to protect (only) the interests of the professionals that control a given regulated market, either by excluding new agents in the area through unreasonably burdensome entry requirements, or through permissive disciplinary action, thereby sacrificing the public interest that justifies the existence of professional associations.

Concerning the mandatory inclusion of people foreign to the professional association in bodies controlling access to the profession and carrying out disciplinary action (Articles 15(2)(e) and 8(9)), the Court concluded that this was merely a question of making the bodies of professional associations more diverse in matters involving the exercise of public powers, in order to better protect public interest.

As regards the disciplinary body, the Court stressed that a panel exclusively composed of peers renders its judgment on compliance with ethical and enforcement standards excessively centred in the interests of the members of the association, or, at the very least, too susceptible of being influenced by those interests. There is also an issue of public perception of the fairness of the associations whenever regulator and regulated are, in effect, a single body of people and interests. The concern with ensuring a greater independence, impartiality and plurality justifies the challenged provision: it allows a proper control of the competence and quality of candidates to the profession by including other sensibilities in the evaluation jury, thus offering more guarantees that the goals for which the association was created are indeed achieved.

The law also makes it mandatory for professional associations to create, in their by-laws, an ombudsperson to defend those who receive services from its members (Article 20). This must be someone who is not a member of the association and who will be in charge of receiving complaints from the public and carrying out some supervision tasks, in dialogue with the other bodies of the association. The creation of a mediator for disputes between members and consumers was deemed by the Court as indispensable to ensure the actual prosecution of the public goals to which the association is bound to and which justify its existence. This precludes the hijacking of regulatory activity by the interests of the association’s members, especially as regards disciplinary action. On the other hand, the definition of specific rules of appointment, dismissal and remuneration for that body is justified by the need to ensure the independence of its appointment, the stability of its performance and, in general, its imperviousness against hostile actions that might impair the proper discharge of its duties.

Thus, not only did the Constitutional Court deny constitutional support to the principle or right of self-rule, but it also concluded that the legislative choices could not be deemed contrary to that paradigm, making those choices even less likely to be in opposition to the Constitution.

Lastly, the prohibition imposed on the members with a leadership role in public institutions from holding positions in professional associations was analysed by the Court as a possible encroachment upon the right of access to public office (Article 50(1) of the Portuguese Constitution), upon the principle of equality and upon the rights of those affected who are part of the association (Article 267(4) of the Portuguese Constitution). The Court deemed that the amendment did not constitute a disproportionate impairment of the affected rights, because, on one hand, having public officers hold positions in professional associations reduces their autonomy from central government, thereby eroding the advantages of the model, and, on the other hand, it entails a risk of assimilation of the professional association to the logic of state administration. The inexistence of a prohibition of this sort would not be very compatible with a model of autonomous administration, since this model is only allowed when it is the only effective regulatory model given the specificities of the regulated sector. Also, the law does not oppose that, when determining the by-laws of each professional association, the list of cases of disqualification be made to depend on other requirements, whenever justified or necessary by the particular circumstances of each area of activity. For this reason, the provision in question cannot be deemed discriminatory.

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