Last Sunday I posted a photo of the Centennial of Communism billboard in Portugal along with the accompanying remarks by Orwell, who took the photo. One of the things he talked about was a recently enacted law that would allow the Portuguese government to expropriate property from private citizens without due process.

The following article discusses the law that Orwell referred to. Many thanks to João for translating this piece from Polígrafo, a fact-checking initiative from the Portuguese news outlet Sapo:

Has the government created a law that allows the state to expropriate any private property “at its convenience”?

(WHAT IS AT STAKE? The Assembly of the Republic passed a law, proposed by the government, which allows expropriations that are arbitrary and “at your convenience”. This claim has been widespread on social networks, where criticisms of the actions of António Costa’s executive have multiplied. But does it have factual support?)

The image, which appears to be the clipping of a legal document, has been widely shared on social networks, over the past few days. “This law grants the Government legislative authorization to approve a special regime for carrying out expropriations and establishing administrative easements necessary for the execution of interventions that are considered […] integrated within the scope of the Economic and Social Stabilization Program, approved as an annex to the Resolution of the Council of Ministers no. 41/2020,” the text reads.

The caption of one of the publications that disseminates the image summarizes what seems to be at stake: “The government has made a law — passed — that basically says that what is yours ceases to be yours and becomes its own, at its convenience.”

The text suggests that, from now on, the State will be able to expropriate any private property, in an apparently arbitrary way, for convenience. But does this claim correspond to reality?

The answer is no, because the law applies only to projects under the Economic and Social Stabilization Program (PEES). Even so, it is true that, in the cases covered, the defense rights of those expropriated are diminished.

Starting with the image that is circulating on social networks, this one is authentic and corresponds to Law Proposal No. 52 / XIV, of the Presidency of the Council of Ministers, that is, of the government, which was approved by the Assembly of the Republic on the 18th of September. The deputies of the PS, BE, PCP, PEV and the non-affiliated deputy Joacine Katar Moreira voted in favor of the diploma. They voted against PSD, CDS-PP, PAN, IL and Chega MPs.

Now, as is made clear in the legal document, the measure arises in connection with the Economic and Social Stabilization Program, which, in the context of the pandemic crisis, provides for a set of “lasting and necessary investments, with tangible benefits for the population and that constitute a way of maintaining or creating jobs across the national territory.” In furtherance of the more rapid implementation of such investments, and considering the “constraints […] in the procedures of expropriation and constitution of administrative easements,” a special regime was created to facilitate them. For this very reason, it is important to understand what changes with the new rules.

The Polígrafo contacted the Ministry of the Environment, which clarifies that “the law […] does not confer any blank check to expropriate at the government’s convenience […] the government being, yes, linked only to the situations covered (PEES projects) — because the regimen is special and, therefore not amenable to analogous application to other projects that do not expressly fall under the PEES.”

The lawyer Rita Garcia Pereira, questioned by the Polígrafo, points in the same direction: “It is not expropriating everything, it is just what appears in the resolution and for those purposes. In addition, the law decree does not change the assumptions of expropriations, which aimed to expedite the procedure.”

In order to clarify the changes introduced by the exceptional new regime, the lawyer explains how the process of withdrawing real estate from private individuals usually proceeds: “I, as a public entity, to expropriate, need to invoke the public interest, a procedure that involves consultation with stakeholders — that is, the people who will be expropriated — the publication of the intention to expropriate in the ‘Gazette’ or notification of stakeholders. Next, you assign a price to the property, which is done by appraisers. And the private individual, if he doesn’t agree — either with the value or with the expropriation — goes to court to contest. It is only afterwards that the property is handed over to the public entity.” It is a series of actions that, as a whole, can sometimes take more than a year.

With the arrival of the new law, expropriations that fall within the scope of the PEES will all be considered urgent and in the public interest: “Administrative possession by the public entity is conferred immediately at the beginning of the process, and is therefore no longer dependent on the final declaration of expropriation.” Thus, the process is faster, and the intervention vis-à-vis the property starts earlier, highlights Rita Garcia Pereira. However, even though compensation continues to exist, the lawyer considers that “the rights of defense of the owners are reduced,” since the challenge can only be made after the property has been handed over to the State.

In relation to the expropriations that fall under the new regime, the government explained to the Polígrafo that they are not detailed in the law, since “each intervention envisaged in the PEES may unfold in several specific projects, which it is not possible to anticipate in detail.” In any case, the law defines that “expropriations of properties and inherent rights necessary for the construction, expansion, rehabilitation or improvement of equipment, networks and infrastructure within the scope of the execution of the projects are considered to be of public interest and as a matter of urgency, investments to be made” within the framework of the PEES.

In conclusion, it is false to state that the government created a law to make arbitrary expropriations and “at its convenience”. Strictly speaking, what happened was the creation of a special regime that now considers to be urgent and of public interest, and therefore simpler and faster, only expropriations associated with projects directly linked to PEES. Even so, it is true that the new rules diminish the rights of those expropriated, since the owners are heard only after the public entity takes administrative ownership of the property in question, which usually does not happen.

Hat tip: Hellequin GB.