PORTUGAL Law and Practice Contributed by: Mark Kirkby, Francisca Mendes da Costa and Gonçalo Sá Gomes, Sérvulo & Associados
• If it pertains to civil liability, then the com - mercial or non-government body – regard - less of nature – may be liable for damages if it acted in the exercise of an administrative function, by using public powers, or by acting within the scope of provisions or principles of administrative law (Article 1, No 2 of the RRCEE). • If the commercial or non-government activ - ity falls under public employment law, then the worker (and, in some cases, a union) may challenge the decision (Article 4, No 1(b) of the ETAF). • If a public procurement procedure involves any commercial or non-governmental entity, subject to the public procurement regime (Article 2, No 2 and Article 7 of the CCP), both the contract and pre-contractual administra - tive acts can be challenged by any interested party. 5. Ouster 5.1 Legislative or Contractual Limits on Judicial Review Under Article 212, No 3 of the CRP, administra - tive courts must resolve “disputes arising from administrative and fiscal legal relations” . How - ever, the prevailing opinion of the Constitutional Court is that this provision avows some leeway to the legislator, so that disputes arising from some administrative relations may be adjudi - cated in civil courts (eg, expropriation). If a contract is deemed administrative by law, the parties cannot consider it to be civil, thus ousting the court’s administrative law jurisdic - tion. However, the parties may qualify a contract that would otherwise be subject to civil law as administrative (Article 280, No 1 of the CCP).
Regardless, arbitral courts may be set up for the judgment of the following (Article 180, No 1 of the CPTA): • matters relating to contracts, including administrative acts relating to their execution (which include the power to annul the act or declare it null and void); • matters relating to non-contractual civil liabil - ity of the State (and other bodies – see, 4.1 Judicial Review of Commercial and Non- Governmental Decisions ), including matters relating to the right of recourse against a public official; • questions concerning the validity of adminis - trative acts, unless otherwise determined by law; and • questions relating to public employment relationships, when there are no unavailable rights at stake and when the issues are not the result of an accident at work or an occu - pational disease. An appeal to the appellate court of a decision of an arbitral court is only possible if the parties have expressly provided for this option in the arbitration agreement (Article 39, No 4 of Law 63/2011 of 14 December). However, per Article 185-A, No 3 of the CPTA, there can still be an appeal to the Administrative Supreme Court of an arbitral decision if: • it contradicts, on the same fundamental question of law, a judgment handed down by the Central Administrative Court or the Supreme Administrative Court; or • a question of fundamental legal or social importance is at issue, or when admission of the appeal is clearly necessary for a bet - ter application of the law (Article 150 of the CPTA).
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