Portugal First part

QUESTIONNAIRE

FIRST PART : Do the rights granted by the Charter of Fundamental rights of the EU lead us to a common European procedure before the administration and the administrative courts ?
Introduction
General questions
To what extent do you apply EU law
Very much To some extent Not at all
To what extent do you set aside rules of domestic law, if necessary, to give full effect to EU law ?
Very much To some extent Not at all
Can you give examples if appropriate ?
Cases of contractual procedures.
Do you apply EU law even if neither of the parties in a case before you has relied on EU law ?
Yes No

Article 41 Right to good administration
41.2 a The right of every person to be heard before an individual measure is taken.
Is this right guaranteed in the procedural law for the administration/and the administrative courts/ in your country ?
Yes.
If so, is this a right only “on demand” or is it an obligation for the administration to give the individual this opportunity ?
It is an obligation for the administration to give every person to be heard before an individual measure is taken. It’s a compulsory rule.

41.2.b The right of every person to have access to his or her file
Is this right guaranteed in the administrative procedural law in your country ? Yes
only when asked for ?
or is it an obligation for the administration to send all the documents to the complainant ?
NOTE : In the Portuguese Code of Procedure in the Administrative Courts, there is an urgent action precisely for “Injunction for disclosure of administrative information”.

41.2.c The obligation of the administration to give reasons for its decisions
Is there such an obligation in your country ? Can you describe how long such reasons may be – a few lines or several pages ? YES

The Portuguese Constitution grants that rights on :

“Article 268.º
(Citizens’ rights and guarantees)

1. Citizens shall possess the right to be informed by the Administration whenever they so request as to the progress of the processes in which they are directly interested, as well as to be made aware of such decisions as are taken in relation to them.
2. Without prejudice to the law governing matters of internal and external security, criminal investigation and personal privacy, citizens shall also possess the right of access to administrative files and records.
3. Administrative acts shall be subject to notification to the interested parties in the form laid down by law, and when they affect rights or interests that are protected by law, shall be based on express grounds that can be accessed by the parties.
4. Citizens shall be guaranteed effective judicial oversight of those of their rights and interests that are protected by law, particularly including the recognition of the said rights and interests, the impugnation of any administrative act that harms their rights and interests, regardless of its form, the issue of positive rulings requiring the practise of administrative acts that are due by law, and the issue of adequate injunctions.
5. Citizens shall also possess the right to challenge administrative rules which possess external force and which harm any of their rights or interests that are protected by law.
6. For the purposes of (1) and (2) above the law shall lay down a maximum time limit for responses by the Administration.”

Article 47 Right to an effective remedy and to a fair trial
47.1 The right to an effective remedy before a tribunal
This first paragraph is based on Article 13 of the European convention on Human Rights, ECHR but the right is more extensive than in the ECHR as the remedy must be before a court, not only a “national authority”.
Are there time limits for the administration to decide upon an application of a party ? If this is the case, how long is this period of time (if it depends on the kind of case, please give some examples).
YES. Generally the Administration has 30 days (90 days as a limit) to decide, as stated by the Administrative Procedural Law)
Is there a legal remedy if the administration failes to decide within that time limit ?
Yes. The person involved can go to Court and ask for the condemnation of the Administration to decide the request (just to decide and/or to decide in the pretended way).
If, the administrative authority refuses to comply with the application and to issue the individual determination thereby requested, or remains idle, the claimant can ask the court for an injunction ordering the agency to act. If the content of the administrative power is precisely defined by the law, the court will state in its decision what content the decision it orders the administration to take must have. If there is discretion, the court will merely order that the decision be taken without prescribing its contents, simply stating which legal requirements must be respected in the discretionary decision-making process.
In both situations, the court fixes the time limit for issuing the administrative decision (Code of Procedure in the Administrative Courts, article 66.1).

Has your country guaranteed the remedy before a court for everyone whose rights and freedoms guaranteed by the law of the Union are violated ?
Yes.
Is it necessary to appeal to a higher administrative authority before a party is entitled to appeal to a court ? Please give the number of instances within the administrative law suit.
No. The person involved can appeal directly to the Administrative Courts. The Code of Procedure in the Administrative Courts leaves clearly behind the traditional concept of definitiveness ; it allows the objection to any act with external efficacy even if it finds itself within an administrative proceeding (article 51.1).
Nevertheless the Portuguese constitutional and administrative law, statutory administrative jurisdiction implies primary jurisdiction : in the face of a statutory power belonging to an administrative authority, a claimant cannot seek judicial resolution without having prior recourse to the agency charged with responsibility to implement the statute.
Subsequently, if such power is exercised by the administrative authority in an illegal way, an action can be filed asking for judicial review for reversal and remand.

[The current system of specialized courts for administrative and fiscal disputes consists of three tiers. At the base, we have the circuit administrative courts, in sixteen different locations around the country. In most cases, the circuit administrative courts and the tax courts are combined, and known as the administrative and tax courts.
The middle tier consists of the central administrative courts, located in Lisbon and Porto.
At the top of the pyramid is the Supreme Administrative Court, created in 1870.
The Supreme Administrative Court and the administrative central courts each have an administrative law section and a tax law section, formed by different judges. The Supreme Administrative Court also has a plenary, formed by the Presiding Judge and the longest-serving judges in each section, which decides on conflicts of jurisdiction between the sections of the court or between the sections of the central administrative courts, or else between the circuit administrative courts and the tax courts.
The circuit administrative courts are, in accordance with the general rule, the first instance reviewing courts. Exceptionally, cases are heard directly by the Supreme Administrative Court (for instance, in the judicial review of decisions taken by the Council of Ministers or by the Prime-Minister).
As for the number of instances, the principle is a two-step review. For this reason, when the Supreme Administrative Court pronounces a first instance judgment, an appeal can be brought before a larger bench of the court’s judges.]

47.2 The right to a fair hearing
This second paragraph corresponds to Article 6.1 of the ECHR but the right to a fair hearing is not confined to disputes related to civil law rights and obligations. Thus, this right is also more extensive than in the ECHR.
Does your country fulfill this obligation regarding the application of EC Law ?
YES.
The opportunity of having a trial public hearing to discuss the facts in issue, officiously ordered by the judge or upon request of the parties involved, is granted (Code of Procedure in the Administrative Courts, article 91). When that happens, the final allegations are also here orally produced.

Other questions
Are the administrative courts in your country confined to decide only on the legality of the case or can they also look into the “appropriateness” or “suitability” of the administrative decisions ?
The reform of the Portuguese administrative justice was made by the new Code of Procedure in the Administrative Courts. One of the most important innovations has to do with the considerable widening of jurisdictional powers in all that concerns the cognition and condemnation of the State by the courts, particularly in the special administrative action.
Regarding the cognitive powers, the court has now the power/duty of pronouncement about any concrete cause that might lead to the invalidation of the act, even though the claimant may not have mentioned them (article 95. 2).
Concerning the powers of condemnation and bearing in mind that the request is addressed to the practise of the due administrative act, the court has the power to condemn the State of practising such an act and to make it adopt the additional behaviours that are not, in their essence, administrative acts.
These powers do not only concern a general condemnation of the practise of the act itself ; the court may also decide, whenever possible, about the claimant’s material intentions and choose the actual contents of the State’s action. When that is not possible owing to the involvement of administrative tasks, the court must point out all those aspects inherent to the practise of the action that should be observed in the new administrative act (article 71).

Is the administrative court entitled to control the question of fact ? To what extent (just whether the grounds given by the administration are reasonable, or full cognition, including the hearing if witnesses and experts by the court) ?
See answer just given above.

Do administrative courts rely on experts working for the administration (on expertises that have already been delivered during the procedure before the administration) or do they nominate own experts (in order to control the experts who worked for the administration) ?
The Administrative judge, as the same as the civil judge, can nominate experts.

Can the administrative court replace the administrative decisions with their own decisions or is it only a “cassation” ?
See above .
Is there a “two party system” before the administrative courts in your country, that is, are the individual and the administration regarded as two opposing parties ?
The Portuguese system has an equal ‘inter partes’ guarantee in the procedure. The Code of Procedure in the Administrative Courts sets new and very important solutions regarding the equal treatment between all the public and private entities involved in the procedure.
Besides the subordination of the public entities to the payment of judicial costs, the CPTA has also foreseen, whenever the judicial orders are not carried out within a time limit, a compulsory pecuniary sanction to those in charge of the enforcement of the sentence or in charge of forwarding the case. The sanction applied by the judge may vary between 5 to 10% of the highest minimum salary actually in force, for each day in the delay of the enforcement of the sentence or in the forwarding of the judicial case (article 169.1 and 2).

Is the administrative court limited to the arguments put forward by the “parties” or can the court look independently on the facts ?
The Code of Procedure in the Administrative Courts excludes the restriction of admissible means of proof in the administrative justice reform, allowing nowadays not just the documental proof but also the use of all the means admitted in the civil procedure (article 90.1). This means that in any first instance case, whichever the procedural means to be used, the presentation of proof through any other way is allowed.