Personal and material scope

AuthorLopes, Dulce; Vicente, Joana
Pages33-45
33
3PERSONAL AND MATERIAL SCOPE
3.1Personal scope
3.1.1EU and non-EU nationals (Recital 13 and Article 3(2), Directive 2000/43
and Recital 12 and Article 3(2), Directive 2000/78)
In Portugal, there are no residence or citizenship/nationality requirements for protection
under the relevant national laws transposing the directives. Everyone benefits from the
protection of the anti-discrimination laws. That means that irregular migrants have the
right not to be discriminated against. Furthermore, discrimination based on nationality is
specifically prohibited in labour law (Article 24(1) of the Labour Code) and, in general, in
Article 1 of Law 93/2017.
3.1.2Natural and legal persons (Recital 16, Directive 2000/43)
a)Protection against discrimination
In Portugal, the personal scope of anti-discrimination law covers both natural and legal
persons for the purpose of protection against discrimination.
According to Article 12(2) of the Constitution, legal persons have the rights and duties
compatible with their nature, including personal rights.
Law 93/2017, which establishes the legal regime for the prevention, prohibition and
combating of discrimination on the ground of race/ethnic origin, nationality, ancestry and
place of origin,applies to natural and legal persons (Article 2(1)).
Other legislation, given its nature, applies only to natural persons such as workers (Labour
Code) and persons with disability and aggravated health risk (Law 46/2006).
b)Liability for discrimination
In Portugal, the personal scope of anti-discrimination law covers natural and legal persons
for the purpose of liability for discrimination.
Law 93/2017 provides that both natural and legal persons are liable in case of
discrimination by action or omission (Article 15(1)). Similar reasoning applies to the
prohibition on discrimination on the ground of disability contained in Law 46/2006 (Article
2(1)). However, Article 9 of Law 46/2006 establishes different sanctions for natural persons
and for legal persons.
The Labour Code prohibits ‘employers’ from discriminating. This applies to natural and legal
persons for the purpose of liability for discrimination.
An employer’s customers cannot be held liable under the scope of the equality and non-
discrimination provisions; the employer can be held liable only if they have a special duty
of care in relation to the behaviour of the customers.
However, there are exceptions specified by law. One such exception is set out by Article
11(1) of the Criminal Code, which states that only natural persons are subject to criminal
liability. However, even in criminal law, there are some exceptions to the exception. One
example is the case of hate crime, which is a crime that involves discrimination against a
group on the grounds of race, religion or sexual orientation, as set out in Article 240(2) of
the Criminal Code.

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