Healthcare security and State Civil Liability: imprisonment and mastery of guilt? Read more
The (minimum) guarantee period for a (new) movable property
The (minimum) guarantee period for a (new) movable property as from 1 January 2022: a case of (tacit) amendment of the Public Procurement Code by Decree-Law 84/2021 of 18 October
As it is known, the Public Procurement Code (PPC) establishes the following in its articles 441, (3), and 444, (1), in terms of the substantive regime applicable to administrative contracts for the acquisition of movable property by public contracting authorities:
“Article 441
Conformity of goods to be delivered
[…]
- The provisions of the law governing the aspects relating to the sale of consumer goods and the guarantees related thereto as regards the conformity of the goods with the contract shall apply, with the necessary adaptations, to the contracts governed by this chapter.”
“Article 444
Obligations of the supplier in relation to the goods delivered
- The provisions of the law governing the aspects relating to the sale of consumer goods and the guarantees related thereto with regard to the responsibility and obligations of the supplier and producer and the rights of the consumer shall apply, with the necessary adaptations, to the contracts governed by this chapter.
(…)
- In addition to the obligations arising for the supplier from the provisions of the preceding subsections, the contract may stipulate an obligation of guarantee, the specific conditions of which, namely those related to the respective term and the obligations of the supplier, shall be established in the contract, and the provisions of the law referred to in (1) shall apply in this respect.
- The period of the guarantee referred to in the previous number shall not exceed two years, which can be longer when, in relation to an aspect of the execution of the contract subject to competition by the specifications, the supplier has proposed it.”
(emphasis added).
Briefly, such references of the legislator of the PPC to the Consumer Law (to the “law governing the aspects relating to the sale of consumer goods and the guarantees related thereto”) had the purpose of conferring to public entities the same protection that any other consumer has in the scope of purchase and sale contracts entered into between consumers and professionals. In other words: the legislator of the PPC understood that the Consumer Law contained a set of rules suitable for the protection of the public interest of contracting entities, when they enter into public contracts for the supply of movable goods, and did so in an absolutely comprehensive manner: by referring en bloc to the regime of the “law governing the aspects relating to the sale of consumer goods and the guarantees related thereto”, albeit “with the necessary adaptations. Therefore, it is to be understood that “the remissions operated by the PPC, in this case, are clearly by way of dynamic or formal remission, and not static or material, with the main consequence of this type of remission: the amendments to the rules which are the object of the remission are, in principle, also applicable in the cases to which the remission applies” (in this sense, Miguel Assis Raimundo, O Estado-consumidor: reflexos improváveis do Direito dos Contratos Públicos no Direito do Consumo, in “Estudos sobre Contratos Públicos”, 2010, AADFL, p. 115) which, in this case, has relevant practical consequences: the regime set out in the “law governing the aspects relating to the sale of consumer goods and the guarantees related thereto”, which is in force at any given time, is applicable to administrative contracts for the supply of movable property entered into by contracting authorities.
Thus, until 31.12.2021, the “law governing the aspects relating to the sale of consumer goods and the guarantees related thereto” was Decree-Law 67/2003, of 8 April. This decree-law was revoked by Decree-Law 84/2021, of 18 October, with effect from 01.01.2022 (cf. article 55). This is equivalent to saying that since 01.01.2022 the “law governing the aspects relating to the sale of consumer goods and the guarantees related thereto” to which the PPC refers is Decree-Law 84/2021.
One of the main changes brought by Decree-Law 84/2021 is the minimum guarantee period for new movable property subject to supply contracts: Decree-Law 67/2003 specified two years (cf. articles 5, (1)), whereas Decree-Law 84/2021 provides for three years (cf. 12. (1)).
In our understanding, this amendment to Decree-Law 84/2021 implies, as of 01.01.2022, a tacit amendment to article 444, (4) of the PPC: where it reads “two years” it should read “three years”. In fact, the indication that the guarantee period “shall not exceed two years” [if the guarantee period is not a competitive aspect: that is, if a longer guarantee period is sought, it must correspond to a factor or sub-factor of the tender evaluation model, i.e, has to be submitted to the competition, and therefore cannot be required – as an aspect not subject to competition – a period of five years, for instance] must be interpreted in an updated manner, in the light of the several dynamic or formal references (441, (3), and 444, (1)) that the PPC entails for the (new) “law governing the aspects relating to the sale of consumer goods and the guarantees related thereto” (Decree-Law 84/2021), and, therefore, it should be understood that the minimum guarantee period is now, since 01.01.2022, of three years.
Strictly speaking, the provision of “two years” contained in the wording of Article 444, (5) of the PPC is, without any doubt, made on the assumption that this was the guarantee provided for in Decree-Law 67/2003 (in force on the date of publication of the PPC); by changing this rule, the PPC itself changes, under penalty of losing coherence in the system, since we would have different guarantee periods (in Article 444, (5) of the PPC on the one hand and in Article 12, (1) of Decree-Law 84/2021 on the other hand), when clearly the legislator wanted and still wants (as the references of articles 441, (3), and 444, (1), of the PPC, impressively prove) that there is an alignment in this matter between Public Procurement Law and Consumer Law.
Lisbon/Funchal, February 2022.
More in Communication
- Public Protection
- law firm
- BAS
- Covid-19
- 10 years
- anniversary
- Best Lawyers
- Portugal
- Who's Who
- Video surveillance
- Privacy
- Minors
- Health and Sciences
- Public Policies
- Coronavírus
- Atividade
- Real Estate 2020
- Corporate Law
- Legal Persons
- Companies
- Professional Secret
- Confidentiality
- Changes
- Public Law
- Life Sciences
- Awards
- Labour Awards
- Law
- Exceptional Measures
- State Budget
- Contracts
- Iberian Lawyers
- Lay-Off
- Lay-Off
- Mental Health
- Stress
- Saúde mental
- Leaders League
- Actualidade Ibérica
- Almedina
- Idealista
- APMEP
- Congress
- MIPIM
- SIGI
- REIT
- Imobiliário
- Mozambique
- ICLG
- Moçambique
- Secrecy
- Professional secrecy
- Labor
- ILO
- International Labor Organization
- RCBE
- sociedades
- pessoas coletivas
- Expo Real
- National Health Service
- NHS
- Hospitals
- Book
- PhD thesis
- Schools
- CNPD
- Gig Economy
- Emprego Público
- Public Sector Employment
- Contratação Pública
- Staff Costs
- Fiscal Law
- PPC
- Whistleblower
- Direito Civil
- Flextime
- Direito da Saúde
- Family Law
- Environmental Law
- Global Mobility
- ranikings
- Medicina Law
- pessoas coletivas
- M&A
- Proteção de
- international
- Laboral Law
- Public Employment Law
- Health Law and Social Security
- Labour and Social Security Law
- Electronic Invoice
- Tax Law
- Civil Law
- Commercial Law
- Public Contracts
- Electronic Invoicing
- Gender Equality
- Medical Error
- Forty Under Forty
- Self-Employed Workers
- Competition Law
- Employment Law
- Directory
- law firms
- Digital Era
- Global Business
- European Congress
- medical law
- Money Laundering
- Transparency
- Personal Data
- Minimum Wage
- Healthcare
- Secutity
- State
- Labour
- Sport Law
- Employment
- Partnership
- Chambers and Partners
- Public Employment
- Directories
- Business Law
- Students
- Trainees
- Administrative Law
- Administrative Litigation
- Guide
- conference
- Local Housing
- Public Procurement
- Health
- Innovation
- Data Protection
- Advertising
- Medicines
- Medical Devices
- Sports Law
- Real Estate
- Fairs
- Sports
- Guides
- Ranking
- Lawyers
- Magazine
- Law School
- Job
- Sport
- Press
- Women's Human Rights
- Women
- Human Rights
- Independent Workers
- Health and Life Sciences
- Health Law
- Chambers
- webinar
- Infarmed
- Helpo
- Workshop
- Football
- Iberian Lawyer
- Equality
- Man
- Woman
- Equal Pay
- Real Estate Law
- Immigration
- Foreign Investment
- Jornal Económico
- Marketing
- Chambers Europe
- In-Lex
- Emails
- Golden Visa
- traffic accident
- Team
- Labor Law
- Social Security
- Em
- Labour Code
- Family
- GRDP
- Research
- Clinical Research
- GDPR
- Children
- Industrial Property
- Social Security Law
- Europe
- Award
- Health and Scieces Law
- Labour Law
- Right of Preference
- Civil and Labour Litigation
- Local Accommodation
- Lawyer
- Social Responsability
New European thresholds are applicable to public procurement Read more
The “de minimis modifications” in the scope of supplementary benefits Read more
Tax regime of crypto active assets foreseen in the draft law of the State Budget for 2023 Read more
New understanding of what “staff costs” are and their consequences Read more
CELIA ALLIANCE publishes article from BAS about Portugal Read more
Tie-breaker criteria in the revision of the Public Contracts Code Read more
Comments to the Public Procurement Code Read more
“Whistleblowing” alerts for companies with 50 or more employees Read more
Notes on disqualifications from the exercise of trade: old tradition and recent developments Read more
Data Protection Officer of public entities Read more
The concept of Beneficiary Entities for purposes of the legal framework applicable to the advertising of drugs and medical devices Read more
The extraordinary update of the price of service procurement contracts with multiannual duration Read more
Amendments introduced to the Labour Code Read more
Cross-border transformation of companies and the protection of creditors Read more
The tax regime of crypto active assets foreseen in the draft law of the State Budget for 2023 Read more
The amendment to the Public Procurement Code Read more
The right to health and the fulfillment of the person Read more
Summary of the ruling of the Supreme Administrative Court (First section) of 16.11.2017, case No 0935/17, rapporteur: Teresa de Sousa Read more
Engaging and terminating managing directors in Europe Read more
The exceptional and temporary regime for price revision and award Read more
New Decree-Law no. 73/2021, of 18 August Read more
Termination of Decree-Laws related to COVID-19 Read more