Personal and material scope

• Author: Lopes, Dulce; Vicente, Joana
• Pages: 33-45

33

3 PERSONAL AND MATERIAL SCOPE

3.1 Personal scope

3.1.1 EU 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.

3.1.2 Natural 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.