PORTUGAL Law and Practice Contributed by: Mark Kirkby, Francisca Mendes da Costa and Gonçalo Sá Gomes, Sérvulo & Associados
3.4 Agreements Between Private Entities and Public Bodies Purely private law agreements between public bodies and private entities are quite rare, as most situations fall within the notion of “adminis- trative contracts” (Article 280, No 1(a) of the CCP and Article 200, No 1 of the CPA). These private law contracts cannot be challenged as though they were administrative and so they are sub- ject to the jurisdiction of civil courts. However, the administrative act from which they arose can be challenged by anyone who claims to have a direct and personal interest (Article 55, No 1(a) of the CPTA). 3.5 Challenging Decisions Without Legal Effect Any decision or act that does not produce external effects, such as an opinion, a warning, advice or guidance, cannot be judicially chal - lenged (Article 51 of the CPTA). However, some opinions or advice may be binding (Article 91, No 1 of the CPA) and therefore can be challenged in court. 4. Nature of the Decision-Maker 4.1 Judicial Review of Commercial and Non-Governmental Decisions Depending on the issue, it may be possible to challenge a person or body that performs com - mercial or non-governmental activities in the fol - lowing circumstances. • If the challenged act follows from the exercise of administrative powers, then it may be chal - lenged in an administrative court; however, if the act is an expropriation (eg, by a conces - sionaire), then the lawsuit must be filed in a civil court (Article 4, No 1, a contrario sensu, of the ETAF).
• the Prime Minister; • the Ombudsman; • the Attorney General of the Republic; • one tenth of the Members of the Assembly of the Republic; and • the Representatives of the Republic, the Legislative Assemblies of the autonomous regions, the presidents of the Legislative Assemblies of the autonomous regions, the presidents of the regional governments, or one tenth of the deputies to the respective Legislative Assembly, when the request for a declaration of unconstitutionality is based on a violation of the rights of the autonomous regions or the request for a declaration of illegality is based on a violation of the respec - tive statute. 3.2 Challenging Secondary Legislation Any norm, other than a legislative act, can be challenged on grounds of illegality (Article 72 of the CPTA). The court may also command the administration to adopt a rule if it was obliged to do so, by law. However, if the rule does not conflict with a law but directly conflicts with the CRP, then the court may refuse its application to the case but only the Constitutional Court has the power to generally annul it (Article 281, No 1 of the CRP and Article 72, No 2 of the CPTA). 3.3 Government Decisions Affecting Sole Individuals The number of people affected by a decision is irrelevant, as the appropriate criteria is whether or not it was a decision exercising administrative powers and if it produced external legal effects in an individual and concrete situation (Article 51, No 1 of the CPTA and Article 148 of the CPA).
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