Termination of Decree-Laws related to COVID-19 — in particular, prior supervision by the Court of Auditors
On 30.09.2022, Decree-Law no. 66 – A/2022, of 30 September, was published, determining the termination of the validity of several decree-laws published in relation to the COVID-19 disease pandemic.
The Government aims with this decree-law to clarify which decree-laws relating to the COVID-19 disease pandemic are still in force and eliminate measures “that are no longer necessary today, through the express determination of termination of the validity of decree-laws already expired, anachronistic or outdated by the evolution of the pandemic.
The list of decree-laws revoked is considerably extensive, but we draw special attention to the revocation of the decree-laws in view of their relevance in the context of public procurement (which does not preclude the need to consult the list contained in the decree-law).
It should be noted that the revocation of these decree-laws does not affect the amendments introduced by them to diplomas that are not expressly revoked by Decree-Law 10-A/2020, of 13 March (cf. Article 2(2)).
As provided for in article 6, the revocatory effects will come into force on the day following its publication, without prejudice to the fact that when it applies to rules that have already ceased to be in force, the express determination of the non-validity of legislative acts made by this decree-law does not alter the moment or the effects of that cessation of validity (cf. Article 5(1)) and does not affect the future effects of facts that occurred during the period of validity of the respective legislative acts that have been revoked (see Article 5(2)).
As an effort to clarify the legislation in force was made by the Government, the existence of diplomas originating from the Assembly of the Republic and which make references to these now revoked diplomas may raise doubts as to their interpretation or even effectiveness.
One such case is Article 6 of Law 1-A/2020 of 19 March, which reads as follows:
“Article 6 Preventive surveillance
1 – Without prejudice to the concomitant supervision and successive supervision regimes provided for in Law 98/97, of 26 August, contracts covered by Decree-Law 10-A/2020, of 13 March, as well as other contracts entered into by the entities referred to in Article 7 of Decree-Law 10-A/2020, of 13 March, during the period of validity of this law, shall be exempt from prior supervision by the Court of Auditors.
2 – The contracts referred to in the previous paragraph shall be sent to the Court of Auditors for information within 30 days after the respective signing.
3 – The time limits regarding prior supervision processes that are pending or that must be sent to the Court of Auditors during the period this law is in force shall not be suspended”.
As we mentioned at the date of entry into force of Law No. 1-A/2020 of 19 March, (hereinafter “Law”) the interpretation of this Article 6 Law calls for the application of Articles 1 to 2-B of that Decree-Law No. 10-A/2020 of 13 March, but also of its Article 7 (hereinafter “Decree-Law”).
Article 2(2) of the Decree-Law was the essential rule for determining the objective scope of the contracts covered by Article 2 of the same Decree-Law: this meant that the objective scope of application of these measures was cut out on the basis of contracts intended for “the prevention, containment, mitigation and treatment of epidemiological infection by COVID-19, as well as the restoration of normality as a result thereof”. To this end, the use of procedural flexibility brought about by this diploma required a special duty to provide reasons, so as to justify the framework of the contracts intended to be entered into under these emergency measures.
As regards the deadlines for the execution of these contracts, the diplomas (Law and Decree-Law) did not establish a time limit, which is understandable as the time required for the “prevention, containment, mitigation and treatment of epidemiological infection by COVID-19, as well as the restoration of normality following the same” was then printable; in any case, it is stated in Article 2(1) that it should be limited to “strictly necessary”. However, the wording used in Article 2(2) of the Decree-Law allowed this deadline to be set with some latitude and in two stages: first, for the “prevention, containment, mitigation and treatment of epidemiological infection by COVID-19”, and then for the “restoring of normality as a result thereof”. That is, and in practice, for as long as necessary for the complete re-establishment of the crisis situation.
Marco Real Martins e Sérgio Alves Ribeiro
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