Background information on the Legal and Regulatory Framework for Intellectual Property in Portugal
Prepared by the World Intellectual Property Organization © 2011
The Constitution of the Portuguese Republic of 1976 was approved on April 2, 1976 after the revolution of April 1974. This revolution put an end to the regime of the Estado Novo, which had risen with the approval of the Constitution of 1933. It has undergone seven amendments in 1982, 1989, 1992, 1997, 2004, and 2005. With 296 articles, it is one of the longest Constitutions in the World. It is the sixth Constitution in the Portuguese history and the third Republican one.
The 1976 Constitution establishes a democratic republican form of government under the rule of law and a comprehensive system of fundamental rights and freedoms.
Form of Government
The President of the Republic, the Assembly of the Republic, the Government and the Courts are the bodies which exercise sovereign power. The Constitution shapes the inter-relations among these bodies in a semi-presidential regime.
The President of the Republic represents the Portuguese Republic, shall guarantee national independence, the unity of the state and the proper functioning of the democratic institutions, and shall be ex officio Commander-in-Chief of the Armed Forces. The President of the Republic is elected for five years by the universal, direct, secret suffrage of all Portuguese citizens. Its competences are essentially political.
The Assembly of the Republic has a minimum of one hundred and eighty and a maximum of two hundred and thirty Members (its present composition) and represents all Portuguese citizens. Members are elected for plurinominal constituencies geographically defined by law in proportion to the number of citizens registered to vote therein. Each legislature lasts for four legislative sessions. All the discussions held in the Assembly are available in the Diário da Assembleia da República. The Assembly of the Republic has political, legislative and oversight competences, as well as the competence to amend the Constitution.
The Government is the body which conducts the country’s general policy and the supreme authority in the Public Administration. It is composed of the Prime Minister, Ministers and Secretaries and Under Secretaries of State. The President of the Republic appoints the Prime Minister after consulting the parties with seats in Assembly of the Republic and in the light of the electoral results for such Assembly. The remaining members of the Government are appointed by the President of the Republic upon a proposal from the Prime Minister. The Prime Minister is therefore responsible to the President of the Republic and, within the ambit of the Government’s political responsibility, to the Assembly of the Republic. The Government has broad political, legislative and administrative competences.
Portugal is a member of the European Union (joined the then EEC in 1986, leaving the EFTA where it was a founding member in 1960) and the United Nations; as well as a founding member of the Latin Union, the Organization of Ibero-American States, OECD, NATO, Community of Portuguese Language Countries, the European Union's Eurozone, and also a Schengen state.
Legislation comprises leis (laws), decretos-leis (decree-laws) and decretos legislativos regionais (regional decree-laws). Leis are approved by the Assembly of the Republic, decretos-leis are approved by the Government and decretos legislativos regionais are approved by the Legislative Assemblies of the Autonomous Regions of Azores and Madeira.
The Assembly of the Republic has three types of legislative competences:
(i) exclusive competence: only the Assembly of the Republic can validly legislate;
(ii) partial exclusive competence: it can legislate, but it can also delegate the task to the Government by means of a law of legislative authorization; the Government then approves a decreto-lei, within which must respect the object, purpose, the extent and the duration of the authorization;
(iii) shared competence: apart from these exclusive competences, the Assembly of the Republic is entrusted with the power to legislate on all matters, except for those which are the exclusive responsibility of the Government.
The Government has four types of legislative competences:
(i) exclusive competences: over matters that concern its own organization and proceedings. Additionally, when the Assembly of the Republic has enacted a law of legislative authorization and within its limits;
(ii) delegated competences: the Government may legislate in such subject area delegated to it by the Assembly of the Republic;
(iii) development competences: the Government may develop the basic principles set out by parliamentary laws, as long as they are not within the exclusive competence of the Assembly of the Republic;
(iv) shared competences: the Government can legislate over all matters that are not within the exclusive responsibility of the Assembly of the Republic.
Both leis and decretos-leis possess equal force, being mutually revocable. However, some laws possess superior force due to their character (e.g., organizational laws or laws which are compulsory legal prerequisites for other laws or which must be obeyed by other laws) or reinforce approval procedure (e.g., required qualified majorities).
The Legislative Assemblies of the Autonomous Regions have several types of legislative powers, too. All decretos legislativos regionais share, nonetheless, some common characteristics: they must have a regional scope and address such matters set out in the Political and Administrative Statute of the Autonomous Region in question which are not of the exclusive competence of the bodies that exercise sovereign power. In the absence of specific regional legislation on a matter which is not the exclusive responsibility of bodies that exercise sovereign power, the current provisions of the law of the Republic are to be applied to the autonomous regions.
All leis, decretos-leis and decretos legislativos regionais must be published in the official journal: Diário da República.
IP Authority and enforcement
The National Institute of Industrial Property (INPI) was created under the aegis of the Ministry of Foreign Trade on July 28, 1976 by Decree-Law no. 632 to reform the old Department of Industrial Property. INPI is now an Autonomous Government Institution, with legal personality as well as administrative and financial autonomy, and independent assets. It functions under the supervision and guidance of the Minister of Justice, with regards to the definition of specific policies relating to industrial property, and the overseeing of their implementation. INPI is the organization responsible for the application of national legislation, namely the Industrial Property Code, This code contains fundamental provisions relating to Industrial Property Rights and to the international Conventions, Treaties and Agreements that Portugal has ratified.
Sources and acknowledgements:
"Legal Research in Portugal: A Guide" By Tiago Fidalgo de Freitas
Wikipedia page of Portugal
CIA World Factbook