PORTUGAL Law and Practice Contributed by: Mark Kirkby, Francisca Mendes da Costa and Gonçalo Sá Gomes, Sérvulo & Associados
contractual civil liability for damages resulting from the exercise of political, legislative and judicial functions; • the prevention, cessation and reparation of violations of constitutionally protected values and goods – in terms of public health, housing, education, the environment, land use planning, town planning, quality of life, cultural heritage, and state property – when such violations are committed by public enti - ties; and • judicial challenges to public administration decisions imposing fines, in the context of administrative offences for violating admin - istrative law rules on town planning or for violating tax rules. Usually, the claim must be filed in the court where the plaintiff has its residence (Article 16 of the Code of Administrative Court Procedure ( Código de Processo nos Tribunais Administra- tivos , or CPTA), but there are some exceptions. Per Articles 17, 18, 19 and 20 of the CPTA, if the lawsuit pertains to: • real estate – the claim must be filed in the area where the property is located; • civil liability – the claim must be filed in the area where the action that caused the dam - age took place; • contracts – the claim must be filed in the area where the contract is to be executed; and • claims against autonomous regions – the claim must be filed in the area where the defendant has its headquarters.
sion or action to be contentiously challenged, as the key criterion pertains to the nature of the administrative act to be challenged. 3. Nature of the Decision 3.1 Challenging Primary Legislation It is not possible to directly challenge a legis - lative act in Portugal (Article 4, No 3(a) of the ETAF). However, all courts of law can (and should) refuse to apply legislation they find to be unconstitutional (Article 204 of the Portuguese Constitution ( Constituição da República Portu- guesa , or CRP)). If this is so, there must then be an appeal to the Constitutional Court (see 15.1 Right to Appeal and 15.2 Appeal Forums ). Also, if one claims that the legislation itself (or lack thereof) caused damages and is therefore grounds for civil liability, the administration can only be liable for “abnormal damages” ie, those that go beyond the normal costs of living in society and are serious enough to merit legal protection (Articles 2 and 15 of the Regime of Civil Liability of the State ( Regime da Respon- sabilidade Civil Extracontratual do Estado e das demais Entidades Públicas , or RRCEE)). These claims must be grounded in the law conflicting with the CRP, international law, EU law, or a leg - islative act of reinforced value (Article 15, No 1 of the RRCEE). Regardless of any claim in court, the following bodies can request that the Constitutional Court examine whether a law is unconstitutional or ille - gal, in order to strike out legislation (Article 281, No 2 of the CRP): • the President of the Republic; • the President of the Assembly of the Repub - lic;
2. Target of Challenge 2.1 Determining Susceptibility
The status or nature of the defendant is irrelevant when assessing the susceptibility of any deci -
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