Sensitive or controversial issues

AuthorLopes, Dulce; Vicente, Joana
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
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
- 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.

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