Regulations on the Appeals Council and appeals procedures

Regulation no. 869/2010

Approves the organisation and functioning of the Appeals Council of the Agency for Assessment and Accreditation of Higher Education, as well as the regime of procedures for revision of decisions relating to the assessment and accreditation of higher education institutions and their study programmes

During the 10th Legislature, a set of legal acts was approved, which aimed at creating mechanisms for quality assurance in higher education or improving existing mechanisms, with particular emphasis on the assessment and accreditation of higher education institutions.

Thus, Decree-Law 74/2006, March 24th (amended by Decree-Law 107/2008, June 25th and by Decree-Law 230/2009, September 14th), which approved the legal regime governing degrees and diplomas, also established the general principles of accreditation of higher education institutions and their study programmes. Building on the key principles contained in this document, Law 38/2007, August 16th, approved the legal regime governing assessment of higher education and Law 62/2007, September 10th, approved the legal regime of higher education institutions. Finally, Decree-Law 369/2007, November 5th, established the Agency for Assessment and Accreditation of Higher Education, assigning to it the responsibility for the procedures relating to quality assurance in higher education, including assessment and accreditation.

Article 17 of this latter diploma established within the Agency for Assessment and Accreditation of Higher Education an Appeals Council as a body for appeals against the decisions of the Management Board in matters related to the assessment and accreditation of institutions of higher education and their study programmes. This is a key body for reinforcing the independence of the Agency as well as the credibility and the impartiality of its performance.

Using the authority conferred by Paragraph 5, Article 7, Decree-Law 369/2007, November 5th, in 2009 the Management Board approved Regulation 504/2009 related to the system of assessment and accreditation of higher education institutions and their study programmes. Although these regulations establish principles and general rules applicable to all procedures and decisions regarding assessment and accreditation, for practical reasons, they focused mainly on the regulation of the main procedures and decisions of the Management Board. Accordingly, the revision procedures which were laid down implicitly in Article 17, Decree-Law 369/2007, November 5th, were regulated in a very succinct way. The revision procedures are also governed by Paragraph 5, Article 7, of the same law.

Since the approval of the regulations, procedures have been adopted whose final decisions are legally subject to appeal through the Appeals Council. Strictly speaking, the provisions of Decree-Law 369/2007, November 5th, are sufficient to allow the regular functioning of that body and the proper legal procedure brought before it. These provisions specifically refer to the Appeals Council, supplemented by the provisions of the Administrative Procedure Code concerning the organisation and functioning of the collegial bodies and improper hierarchical appeal, a subtype of appealable administrative procedure, in which an appeal to the Appeals Council is included. However, the adoption of an organisational, functional and procedural regulation for the Appeals Council seems expedient, not only for reasons of clarity but also to allow the adaptation of general regimes therein contained to the particularities of the body and of the procedures sub judice.

Thus, these rules approve the regulations for the organisation and operation of the Appeals Council, as well as the procedures for revision of decisions of the Management Board regarding the assessment and accreditation of higher education institutions and their study programmes.

These Regulations have been submitted to public scrutiny. 

Therefore:

In accordance with no. 5, article 7, Decree-Law 369/2007, November 5th, and paragraph e) number 2, article 11 of the Statutes of the Agency for Assessment and Accreditation of Higher Education, approved by Decree-Law 369/2007, November 5th, the Management Board of the Agency for Assessment and Accreditation of Higher Education determines the following:

Chapter I

General Provisions

Article 1

Object

These regulations apply to the organisation and functioning of the Appeals Council of the Agency for Assessment and Accreditation of Higher Education, as well as the regime of procedures for revising decisions on the assessment and accreditation of higher education institutions and their study programmes.

Article 2

Appeals Council

The Appeals Council is the governing body through which appeals are made against the decisions of the Management Board regarding assessment and accreditation.

 

Chapter II

Organisation and Operation

Article 3

Frequency of meetings

The Appeals Council normally meets four times a year but extraordinary meetings may be convened whenever this is deemed necessary, in accordance with the following Articles.

Article 4

Ordinary meetings

1 - In the absence of a resolution of the Appeals Council, it is the duty of the President to set the days and times of ordinary meetings.

2 - If there is no fixed day and time for ordinary meetings, it is up to the President to convene the meeting.

Article 5

Extraordinary meetings

1 - Extraordinary meetings are held when convened by the President.

2 - The President should proceed to convene a meeting whenever a meeting is deemed necessary in order to comply with the statutory duty to take decisions on pending proceedings within the stipulated time limit.

3 - The President should also proceed to convene a meeting when at least one third of the members so request, in writing, stating the subject they wish to see addressed. In this case, the meeting must be called for within 15 days following the submission of the request.

Article 6

Convocation

Convocation must be sent to all members of the body within a minimum of forty-eight hours prior to the date of the meeting.

Article 7

Agenda

1 - The agenda is established by the President by means of explicit indication of the subjects to be discussed at the meeting. 

2 - The President includes on the agenda matters within the competence of the Appeals Council that have been indicated by any ordinary member with a minimum of five days notice prior to the date of the meeting.

3 - The agenda, accompanied by all documentary evidence relevant to the decisions to be taken, including expert opinions, reports and proposals for decision, is made available on the electronic platform, which is accessible to all members, in sufficient time to allow for proper deliberation of their vote. In no case must the agenda be available for less than forty-eight hours prior to the date of the meeting.

Article 8

Changes in the scheduling of meetings or agenda

Alterations to the day or time of meetings and to their agendas should be communicated to all members of the collegiate body within the same minimum period of time required for the meeting to be held.

Article 9

Communications regarding the functioning of the Appeals Council

All communications concerning the functioning of the Appeals Council, including the convocation, changes to the scheduled day or hour of the meeting and any accompanying document, must be sent to members by any method, including electronic means, that ensures that they receive this information safely and opportunely and must include the date of the meeting and subjects on the agenda.

Article 10

Object of the resolutions

1 – The object of the resolutions to be adopted at each meeting is limited by the agenda.

2 – Without prejudice to the provisions of the previous paragraph, the agenda may be changed during the course of a regular meeting if there is urgency in the immediate resolution of a particular subject, especially if the discussion or resolution on a matter included in the agenda cannot proceed without discussion or resolution of another matter which does not appear on the agenda, providing that urgency is recognised by resolution, approved by two-thirds of the legal number of members.

Article 11

Privacy of the meetings

The meetings of the Appeals Council are not public.

Article 12

Guarantee of impartiality 

1 - Without prejudice to the grounds for disqualification present in general or specific law, the members of the Appeals Council are prevented from taking part in the resolutions involving higher education institutions with which they have had any association in the previous five years.

2 – For the period of one year following the termination of their functions, the members of the Appeals Council may not have any association with higher education institutions involved in appeals in which they have participated.

3 - The members of the Appeals Council cannot perform any act relating to procedures from which they are, or in which they consider themselves, barred  and nor can they be present when these matters are being discussed or decisions are being made.

Article 13

Quorum

The Appeals Council meets and makes decisions when the majority of the legal number of members entitled to vote is present.

Article 14

Meetings held via videoconference

1 - For the purposes of the preceding paragraph any member who, through audiovisual or computer means, maintains continuous and bi-directional audio and visual contact, with other members during the meeting is considered to be present.

2 - In no case may a meeting be held in which more than half of the members present are in the situation described in the preceding paragraph.

3 - Without prejudice to what is stated in paragraph 1, at least two meetings must be held per year with the physical presence of all members.

Article 15

Abstention

Abstention is not permitted.

Article 16

Forms of voting 

Decisions are taken by roll call vote, ordinary members voting first and, finally, the President.

Article 17

Majority

1 - Decisions are taken by absolute majority vote of the members present at the meeting.

2 - If, for a particular resolution, only a relative majority vote is obtained, a new discussion and voting process is immediately started, in which a relative majority is sufficient.

Article 18

Tie vote

In case of a tie vote casting the vote of the President prevails.

Article 19

Minutes of the meeting

1 – For each meeting minutes are taken, containing a summary of all that has occurred, indicating the date and place of the meeting, the members present, the subjects assessed, decisions taken and the nature and the result of votes.

2 - Members may require their vote, and their justification for this vote, to be included in the minutes.

3 - The minutes are written by an employee of the Agency for Assessment and Accreditation of Higher Education designated for that purpose by the Management Board. The minutes must be approved at the end of the meeting or at the beginning of the subsequent one, and after approval must be signed by the President and at least two members.

4 - Without prejudice to the provisions of the previous paragraph, the Appeals Council may resolve that the minutes may be approved in draft form at the end of the meeting itself.

Chapter III

Appeal procedure

Article 20

Right to appeal the decisions and omissions of the Management Board on assessment and accreditation

Interested parties have the right to appeal the decisions of the Management Board relating to the assessment and accreditation of higher education institutions and their study programmes, as well as omission of resolutions due in respect of such matters, by appeal to the Appeals Council, in accordance with the following articles.

Article 21

Subject of the appeal 

1 - An appeal against the final decision of the Management Board can be lodged regarding procedures for the evaluation and accreditation of higher education institutions and their study programmes, as well as their omission.

2 - Any acts or omissions not referred to in the preceding paragraph are not appealable, namely any preparatory, interlocutory or executive act performed by the Management Board or any other organ or agent of the Agency for Assessment and Accreditation of Higher Education or omissions of the practice of the same acts.

Article 22

Grounds for appeal

The appeal may be based on the illegality or undisputed inconvenience of the decision of the Management Board or on the illegality of its omission.

Article 23

Right to appeal

1 – Any higher education institution concerned in the procedure in which the contested resolution or omission took place and which considers itself negatively affected by such decisions or omissions may appeal.

2 –Any institution of higher education that, expressly or implicitly, has unreservedly accepted the resolution of the Management Board loses its standing to appeal.

Article 24

Deadline for appeal

The appeal must be lodged within ten days of notification of the decision or, in the event of omission, the last day when it should have been adopted.

Article 25

Lodging of an appeal

1 - The appeal is lodged at the signed request of the head of the higher education institution concerned or of its founding entity.

2 - The appeal referred to in the preceding paragraph must include the information required to identify the procedure to which it refers and the grounds on which it is based, and may be accompanied by the any documents deemed relevant.

3 - The appeal referred to in paragraph 1 is formulated on the electronic platform, foreseen in the regime pertaining to the assessment and accreditation procedures of higher education institutions and their study programmes.

Article 26

Effects of lodging an appeal

The lodging of the appeal does not have a suspensive effect regarding the contested decision, nor does it redress the omission of a decision, even provisionally. While the appeal is pending, except in duly substantiated cases of urgency, no act may be committed which might conflict with the decision of the Appeals Council or which might impair its effectiveness.

Article 27

Preliminary assessment

1 - If the request does not meet the formal requirements, the higher education institution lodging the appeal is invited to rectify this within 10 days.

2 - The appeal is dismissed outright if the shortcomings detected are not rectified or if it is found to be manifestly without grounds. 

Article 28

Action of the Management Board 

1 – Within ten days of the lodging of the appeal, the Management Board must decide on the request and its grounds.

2 - Within the period referred to in the preceding paragraph, the Management Board may revoke, modify or replace the appealed decision, as well as adopt a resolution that has been omitted, according to the request of the institution of higher education making the appeal, subsequently referring the case to the Appeals Council.

3 - In the case foreseen in the previous paragraph, the institution of higher education involved may request that the appeal should continue against the resolution adopted in the meantime, and may claim new grounds.

4 - The application referred to in the preceding paragraph must be made within the period stipulated in Article 24.

Article 29

Processing the appeal

For each appeal the President must designate a reviewer, who is responsible for exercising the powers conferred on the reviewer of the appeal by the Administrative Procedure Code and by these Regulations, and who must prepare a draft decision on the appeal.

Article 30

Powers of the Appeals Council regarding the processing of the appeal 

At any moment, the Appeals Council may require the institution of higher education making the appeal to present the original copies of any documents that have been presented in electronic form, and they may request any additional information or other elements deemed relevant from the higher education institution involved, the Management Board or from the External Assessment Team.

Article 31

Decision deadline

1 - The appeal shall be decided within 30 days from the presentation of the appeal to the Appeals Council in accordance with paragraph 2 of Article 28.

2 - In cases foreseen in Article 30, the deadline referred to in the preceding paragraph may be extended for up to a maximum of 90 days.

Article 32

Powers of the Appeals Council regarding the appeal decision

1 - Regarding the appeal decision, the Appeals Council may confirm or revoke, in whole or in part, the decision of the Management Board

2 - When it is considered that in the assessment or accreditation procedure in which the decision or omission under appeal occurred, acts or undue formalities were performed, or acts or necessary formalities were not performed, the Appeals Council may annul that procedure, in whole or in part, and determine its repetition or that additional investigation should be undertaken, according to the terms of the regime of assessment and accreditation procedures of higher education institutions and their study programmes.

3 - In the case of the preceding paragraph, new draft and final reports are prepared.

Article 33

Substantive regime applicable to decisions of the Appeals Council

Decisions of the Appeals Council on the assessment and accreditation of higher education institutions and their study programmes are governed, in their essence, by the regime of assessment and accreditation procedures of higher education institutions and their study programmes.

Article 34

Publication of decisions

The final decision on any appeal made by the Appeals Council must be published on the websites of the Agency for Assessment and Accreditation of Higher Education and the higher education institution involved in the appeal.

Chapter IV

Execution of the decisions of the Appeals Council

Article 35

Duty to execute

1 - The Management Board should encourage the prompt adoption of the necessary measures for the implementation of the resolutions of Appeals Council, including the undertaking or repetition of preparatory inquiries and/or the issuing of a new assessment and accreditation decision, according to each situation.

2 - The resolutions of the Appeals Council are to be implemented within thirty days.

3 - In the case of  new or repeated preparatory inquiries, or if the  proceedings must be repeated , the deadline mentioned in the preceding paragraph may be extended by the Appeals Council, following proposal from the Management Board, up to the limit of the deadline for the decision on assessment and accreditation procedures.

4 - The duty to accept the resolutions of the Appeals Council by the Management Board does not prevent the latter from revising the accreditation decision or from subsequently making it conditional, revoking it, in cases and the terms foreseen in the regime of assessment and accreditation procedures of higher education institutions and their study programmes.

Article 36

Executive procedure

1 - Within thirty days following the breach of the duty stipulated in Article 35, the higher education institution concerned may request the Appeals Council to take the necessary measures to ensure the complete execution of the non-implemented decision.

2 - In the case considered in the preceding paragraph, the Appeals Council has the necessary powers to guarantee the full implementation of its resolutions and may, namely, instruct the competent departments to undertake or to repeat the proceedings or to make preparatory inquiries and to modify or override the decisions of the Management Board which have been challenged by the appeal or to execute these decisions on behalf of that Board.

3 - The claimant higher education institution is heard before the decision of the Appeals Council, in case the probable outcome might be completely or partially unfavourable to her, and if that institution has not had the opportunity to comment on the nature and grounds of the decision.

Chapter V

Final provisions

Article 37

The Secretary

The Appeals Council is assisted in the exercise of its powers by a secretary, to whom the President may give access to the electronic platform, as foreseen in the regime governing assessment and accreditation procedures of higher education institutions and their study programmes.

Article 38

Subsidiary law

1 - In all matters not expressly governed by these Regulations the provisions of the Administrative Procedure Code relating to collective bodies applies to the organisation and functioning of the Appeals Council.

2 –All principles and regulations governing assessment procedures set out in the regime for procedures for the assessment and accreditation of higher education institutions and their study programmes, and the provisions of the Administrative Procedure Code relating to inappropriate hierarchical appeal apply to the procedures dealt with by Appeals Council, with the necessary adaptations.

Article 39

Revision

These Regulations will be revised within one year of their coming into effect.