O direito de indemnização dos bares e discotecas no quadro das medidas públicas de combate à pandemia da COVID-19

Abstract

Between January and March 2020, we witnessed a climate of devaluation of the COVID-19 phenomenon by civil society in general, which ended up being reflected in the actions of Portuguese public authorities: the general director of health Graça Freitas and the minister of health Marta Temido not only considered the possibility of the virus reaching Portugal “a little excessive”, but also explained to citizens that the use of surgical masks gave a “false sense of security”. Nowadays, we realize the blunder committed, as the virus entered our lives in force and in an absolutely unexpected way, producing repercussions on social, economic, political and cultural levels unprecedented in the history of collective life. It was therefore the serious and real dangers to public health that caused the need to promote concrete measures to contain the spread of the disease as much as possible, which is why it is within this factual framework that the question has arisen as to whether the State, through the practice of acts that cause harm to private individuals should or should not be obliged to compensate them, even in scenarios in which their illegality is ruled out by the legal system. However, it is not clear that the abnormality of the factual situation inherent to a pandemic has remedied the illegality of all State activity during this period, especially administrative activity. The central point is therefore that the exercise of the right of necessity by the State does not imply the rejection of legality, but rather the adoption of exceptional legality. It will be within the scope of this factual framework that the special impact of these measures on the night-time entertainment sector will be taken into account. In this regard, particular attention will be paid to the study of the resolutions of the Council of Ministers and the simple decrees of the Government that, whether in a state of constitutional emergency or in a state of public calamity, determined strong restrictions on fundamental rights; as well as whether the standards contained in Law No. 81/2009 (Public health surveillance system) and Law No. 27/2006 (Basic Civil Protection Law) are or are not sufficiently enabling the measures adopted in the context of public calamity.

Date of Award	8 May 2024
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Rui Medeiros (Supervisor)