1) Definition
1.1) Absence of Legal Definition
There is no legal definition of a liberal professional:
- Neither in Portuguese internal legal acts
- Nor in European Union legal acts, whether derived or original
1.2) The Concept is Not Univocal
The term “liberal professional” does not express a univocal concept: neither in Portugal nor in the European Union space.
1.3) Definition by the European Economic and Social Committee (EESC) of 2021
However, the European Economic and Social Committee (EESC), in an opinion issued in 2021 titled ‘Liberal Professions 4.0’, put forward a definition of liberal professional in the following terms:
Liberal professionals are natural persons who provide “intellectual services based on specific professional qualification or certification. These services are characterized by a personal element and are based on a relationship of trust. Liberal professionals exercise their activity with personal responsibility and professional independence, are subject to professional ethics, bound to their clients’ interests and the common good, and subordinate to a system of professional organization and supervision.”
1.4) Definition by the National Association of Liberal Professionals (ANPL)
A liberal professional is “one who exercises an activity, being holder of specific training and qualifications, professional responsibility, technical autonomy and independence, based on their own ethics and deontology, in the superior interest of consumers and the community in general.”
This is the definition of liberal professional by the National Association of Liberal Professionals (ANPL). This association was established in February 2021. The presented definition is not (yet) on ANPL’s website but was presented by its president in an interview with Observador newspaper.
1.5) Definition by J. M. Coutinho de Abreu
Finally, according to J. M. Coutinho de Abreu, liberal professionals are “natural persons who habitually and autonomously (legally non-subordinated) exercise primarily intellectual activities, subject to their own regulation and control (largely by public associations – “orders,” “chambers”).”
He adds: “therefore, liberal professionals are lawyers, doctors, engineers, architects, economists, official auditors, etc.”
2) Examples
2.1) Liberal Professionals Subject to Professional Orders (exhaustive list)
The following are liberal professionals subject to Professional Orders (in alphabetical order):
- Lawyers
- Architects
- Biologists
- Certified Accountants (formerly known as official accounting technicians)
- Customs Brokers
- Economists
- Nurses
- Engineers
- Technical Engineers
- Pharmacists
- Doctors
- Dentists
- Veterinarians
- Notaries
- Nutritionists
- Psychologists
- Official Auditors
- Solicitors and Enforcement Agents
All these categories of liberal professionals are subject to corresponding Professional Orders (for example, Bar Association, Medical Association, etc.).
Legal entities whose main purpose is the common exercise of professional activities organized in a single professional public association (“Orders”) are professional companies subject to professional public associations.
3) Professional (Liberal) Companies
Professional companies are:
- Legal entities whose main purpose is the common exercise of professional activities organized in a single professional public association (“Orders”), and
- In general, companies where profit formation depends exclusively or almost exclusively on the activities of their respective liberal professional partners.
4) Scope of the Liberal Professional Concept
4.1) Essential Elements or Characteristics According to EESC and ANPL:
[Translation continues with detailed explanation of all eight essential characteristics]
4.2) Legal Independence (vs. Legal Subordination)
[Translation continues with explanation of independence vs. subordination concepts]
4.3) Subjection to Professional Organization and Supervision System
4.2) Legal Independence vs. Legal Subordination
The most problematic and controversial question regarding the concept of liberal professional is whether legal independence (as opposed to legal subordination) is or is not an essential element of the concept of liberal professional and if, consequently, it includes or not natural persons who, meeting the elements indicated in the previous point (4.1), exercise their profession with legal subordination, therefore under an employment contract.
A liberal professional must exercise their profession with professional independence. However, this, at least if not interpreted in absolute terms, should not be confused with legal independence.
For example, the fact that a lawyer exercises their activity under an employment contract is not, by itself, an obstacle to exercising their profession with professional independence and, consequently, does not constitute an impediment to their qualification as a liberal professional, provided that, in this case, they maintain their technical autonomy.
4.2.2) Modes of Operation for Liberal Professionals
a) With legal independence:
Liberal professionals can exercise their activity with legal independence in the following ways:
aa) Self-employed (as individual entrepreneurs):
- In individual or isolated practice
- Or integrated into an office or cabinet composed of other professionals, with the purpose of sharing expenses
ab) Integrated into a company (for example, a law firm) as a partner, sharing economic risks of their activities with their partner(s)
b) With legal subordination, under an employment contract:
Liberal professionals can also exercise their activity with legal subordination, as subordinate workers, therefore under an employment contract.
For example, Portuguese Law expressly admits the possibility of lawyers acting under an employment contract in a subordinate regime, provided they exercise their activity in the exclusive interest of their respective employer, that is, provided they do not practice law in the interest of third parties. These are called in-house lawyers.
In this case, the lawyer is a liberal professional but is not a legally independent professional: they are a subordinate worker (cf. Articles 73, 81, paragraphs 3, 4, 1, and 2 of the Bar Association Statute in conjunction with Article 89 of the same diploma).
c) Associate Lawyers:
Lawyers are a very important category of liberal professionals. Beyond the aforementioned cases, lawyers can exercise their activity as associate lawyers in a law firm.
Associate lawyers are lawyers who exercise their professional activity in law firms as non-partners. It is debatable whether:
- They have legal independence, that is, if they are independent workers (service providers), or if, instead
- They are true subordinate workers
Article 213, paragraph 9 of the Bar Association Statute determines that “relationships between lawyers who integrate firms, namely between partners, associates, and trainees, as well as contractual relationships with other lawyers who provide services to these firms, are subject to the Bar Association’s own internal regulation.” However, to date, this regulation has never been published.
4.3) Subjection to Professional Organization and Supervision System
EESC:
According to the definition presented in 2021, the European Economic and Social Committee (EESC) considers that subjection to a system of professional organization and supervision, namely subjection to a Professional Order (for example, the Bar Association), is essential to the concept of liberal professional.
Therefore, for this entity:
- People who exercise their activity subject to a system of professional organization and supervision are liberal professionals
- People who exercise their activity without subjection to a system of professional organization and supervision are not liberal professionals
ANPL:
Conversely, according to the definition it presented, the National Association of Liberal Professionals (ANPL) does not consider subjection to a system of professional organization and supervision essential to the concept of liberal professional.
In other words, the concept of liberal professional adopted by ANPL is broader than the concept presented by EESC: it also covers people who exercise their activity without subjection to a system of professional organization and supervision.
5.1) Liberal Professionals vs. Independent Workers
The concept of liberal professional does not coincide with the concept of independent worker. Indeed:
I) On one hand, liberal professionals can be:
- Independent workers or
- Subordinate workers
For example, as we’ve seen above, a lawyer can practice their profession:
- Self-employed or as a partner in a law firm; or
- Under legal subordination, as a subordinate worker, therefore under an employment contract.
II) On the other hand, liberal professionals do not exhaust the universe of independent workers. There are more independent workers beyond liberal professionals.
Table (or list) of activities referred to in Article 151 of CIRS
By reference to Article 151 of CIRS, Ordinance No. 1011/2001 of August 21, with subsequent amendments, establishes a table or list of activities predominantly providing liberal professional services:
1 – Architects, engineers and similar technicians: 1000 Technical agents of engineering and architecture: 1001 Architects 1002 Designers 1003 Engineers 1004 Technical engineers 1005 Geologists 1006 Topographers
2 – Visual artists and similar, actors and musicians: 2010 Theater, ballet, cinema, radio and television artists 2011 Circus artists 2019 Singers 2012 Sculptors 2013 Musicians 2014 Painters 2015 Other artists
3 – Bullfighting artists: 3010 Bullfighters 3019 Other bullfighting artists
4 – Economists, accountants, actuaries and similar technicians: 4010 Actuaries 4011 Auditors 4012 Tax consultants 4013 Accountants 4014 Economists 4015 Official accountants 4016 Similar technicians
5 – Nurses, midwives and other paramedical technicians: 5010 Nurses 5012 Physiotherapists 5013 Nutritionists 5014 Midwives 5015 Speech therapists 5016 Occupational therapists 5019 Other paramedical technicians
6 – Jurists and solicitors: 6010 Lawyers 6011 Legal consultants 6012 Solicitors
7 – Doctors and dentists: 7010 Dentists 7011 Medical analysts 7012 Surgeons 7013 Ship doctors 7014 General practitioners 7015 Dental surgeons 7016 Stomatologists 7017 Physiatrists 7018 Gastroenterologists 7019 Ophthalmologists 7020 Orthopedists 7021 Otorhinolaryngologists 7022 Pediatricians 7023 Radiologists 7024 Doctors of other specialties
8 – Teachers and similar technicians: 8010 Private tutors 8011 Trainers 8012 Teachers
9 – Professionals dependent on official appointment: 9010 Official auditors 9011 Notaries
10 – Psychologists and sociologists: 1010 Psychologists 1011 Sociologists
11 – Chemists: 1110 Analysts
12 – Clergy: 1210 Clergy of any religion
13 – Other persons exercising liberal professions, technicians and similar: 1310 Property administrators 1311 Family helpers 1312 Nannies 1313 Systems analysts 1314 Archaeologists 1315 Social workers 1316 Astrologers 1317 Parapsychologists 1318 Biologists 1319 Commission agents 1320 Consultants 1321 Typists 1322 Decorators 1323 Athletes 1324 Ironers 1325 Beauticians, manicurists and pedicurists 1326 Tour guides-interpreters 1327 Journalists and reporters 1328 Arbitrators 1329 Masseurs 1330 Real estate mediators 1331 Expert appraisers 1332 Computer programmers 1333 Advertisers 1334 Translators 1335 Pharmacists 1336 Designers (added by Law No. 53-A/2006-29/12)
14 – Veterinarians: 1410 Veterinarians
15 – Other activities exclusively providing services
5) Liberal Professionals vs. Independent Workers
Definition of independent worker:
Independent workers are natural persons who exercise professional activity without subjection to an employment contract or legally equivalent contract, or who undertake to provide others with the result of their activity, and are not covered by that activity under the general social security regime for employed workers (Article 132 of the Social Security System Contributory Regimes Code).
Independent workers:
- Are contrasted with subordinate workers
- Have their own contributory regime (Social Security or others – for example, lawyers can now choose between contributing to CPAS or Social Security)
The concept of liberal professional does not coincide with the concept of independent worker. For example, a farmer who is an individual entrepreneur, that is, who cultivates and sells their products on their own account (the effects of this activity – debts, assets (including money), and credits – directly affect their personal legal sphere) is an independent worker subject to the respective contributory legal regime, except if cumulatively:
- The cultivated products are predominantly intended for the consumption of the farmer and their household
- And the income from this activity does not exceed the annual amount of four times the value of IAS (IAS 2023 = €480.43; 4 x IAS = €1,921.72)
