Today is entering into force the majority of the provisions of the Decree-Law 214-G/2015 of 2 October, which approves significant changes to the Code of Administrative Court Procedure (CPTA) and the Statute of Administrative and Tax Courts (ETAF), being thus the first major revision of the Portuguese administrative litigation model that originally entered into force on 1 January 2004.
With regard to definition of the scope of jurisdiction of administrative courts, changes were made to Article 4 of the ETAF, in order to provide for the jurisdiction of administrative courts over new matters, as well as the clarification of their jurisdiction in respect of mat- ters that were already within the scope of the administrative jurisdiction, namely:
- Review of the legality of rules and other legal acts performed by any entities, regardless of their nature, in the exercise of public powers – Article 4.1(d), thus corresponding to the part of the new CPA which submitted to its regulations on general principles, procedure and administrative activity all entities, regardless of their nature, that perform acts in the exercise of public powers;
- Validity of pre-contractual acts and interpretation, validity and performance of adminis- trative contracts or of any other contracts entered into pursuant to public procurement legislation, by legal persons governed by public law or other contracting entities – Article 4.1(e), clarifying, by reference to legislation on public procurement, that administrative courts have jurisdiction to rule on administrative contracts, including their pre -contractual
- acts, as well as to rule on matters related to public contracts, including their pre-contrac- tual acts;
- Ruling to revert de facto situations, which do not have any legal title– Article 4.1(i);
- Challenge before the courts of Public Administration decisions that apply fines in the context of administrative offences due to breach of provisions of administrative law in matters of urban planning – Article 4, 1, l), this new power of the administrative courts entered into force on 1 September 2016, in accordance with Article 15.5 of DL 214 -G/2015. Thus, on 1 September 2016, administrative courts, for the first time, had the power to rule on challenges in matters of administrative law, although restricted to challenges of admin- istrative decisions that apply fines in matters of urban planning, such as the fines provided for in the Legal Framework for Urban Planning and Building ;
- Disputes in which the parties that must be jointly sued are public and private entities bound by joint and several liability, namely by having entered into a liability ins urance contract – Article 4, 2;
Finally, a general clause is created that grants administrative courts jurisdiction to rule on matters related to administrative legal relationships that do not concern the matters listed in Article 4 of the ETAF. Thus, as in the previous version, the rules set out in Article 4 are still exemplificative.
With regard to the functioning of administrative courts, the new feature is the func- tioning of the lower administrative courts (Tribunais Administrativos de Círculo).
The Tribunais Administrativos de Círculo now function with only one judge, except in cases in which the CPTA provides for a hearing in Extended Composition, such as those cases provided for in Articles 48, 8 and 93, 1 – proceedings with priority and preliminary refer- ences to the Supreme Administrative Court.
The system of appealing to a judicial panel has thus been eliminated; this elimination entered immediately into force after the publication, pursuant to Article 15, 4, of DL 214 - G/2015.
With regard to types of proceedings, there will now be a single form of proceeding known as administrative action, putting an end to the two forms previously existing in the CPTA of special administrative action and common administrative action – Article 37.
With regard to urgent proceedings, there is now a new urgent proceeding, known as a group proceeding, which covers actions concerning the practice or omission of administra- tive act in the context of proceedings with more than 50 participants, in the fields of job competitions, applicant test procedures and recruitment – Article 99.
With regard to pre-contractual litigation, the Directive Remedies has finally been trans- posed, an automatic suspensive effect being associated with the challenging of awards concerning public works contracts, public works concessions, public service concessions, the acquisition or leasing of movable assets and the acquisition of services – Article 103- A.
With regard to precautionary proceedings, four new protective measures have been added to Article 112, 2, of the CPTA:
- Embargo of new work;
- Lien of goods;
- Notice to adopt or abstain from a conduct by the Administration or by an individual due to alleged breach of Portuguese administrative law or the law of the European Union.
The decision criteria for the adoption of the protective measures previously provided for in Article 120 of the CPTA have been replaced by a single criterion –which is being likely that the claim already formulated or to be formulated in main proce edings will be upheld.
This is a stricter criterion requiring more careful analysis by the judge before granting the requested measure.
Finally, with regard to judicial appeals, the powers of the court of appeal are extended, providing for the possibility of production of evidence in the court of appeal, the provisions regarding investigation, discussion, representations and ruling in the first instance apply- ing, duly adapted – Article 149.