Sensitive or controversial issues

• Author: Lopes, Dulce; Vicente, Joana
• Pages: 83-83

83

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national level

The current Government and Parliament have been making significant efforts to improve

the compliance of Portuguese legislation with the directives, as evidenced by the approval

of Law 93/2017, mentioned many times above.

Portuguese legislation complies with the directives and sometimes goes beyond their

scope.

11.2 Other issues of concern

Other key issues of concern with regard to the implementation and practical application of

the anti-discrimination directives at national level are:

- The difference between the written law and its practical effect. In Portugal, it is rather

common to approve legislation that would be completely appropriate to achieve

certain goals, but which, due to the country’s financial and economic weakness, for

instance, does not function properly. This applies in particular to the implementation

of social rights. Nevertheless, in the past few years, there has been a considerable

effort to render non-discrimination rights effective in both the public and private

spheres.

- There are still barriers to access to justice that need to be overcome. The length of

the procedures and the costs involved are two disincentives to accessing justice.

Attempts should be made to turn the situation around – for instance, by involving

NGOs and other associations in discrimination procedures and by resorting to more

expeditious and equitable mechanisms such as mediation.

- The independence of the specialist bodies that deal with racial and ethnic

discrimination has not been completely ensured. Nevertheless, the new Law 93/2017

makes significant efforts to ensure that the specialist bodies conform to the powers

envisaged in Article 13 of the directive and are therefore more active and visible to

the public.

- Age is an area in which it seems that the Portuguese legislator and the courts have

not paid much attention to the novel CJEU case law that has brought the issue of age

discrimination to light. In legislative terms, any explicit reference to age is absent

from most of the anti-discrimination clauses in Portuguese law. The justification test

used in courts in age discrimination cases equates to a mere reasonableness test,

and does not therefore fulfil the need to control potentially discriminatory measures

according to a structured analysis of legitimacy and proportionality. However, current

doctrine seems to involve taking a more careful look at the CJEU case law, so new

developments might occur in the near future.