PORTUGAL Law and Practice Contributed by: Mark Kirkby, Francisca Mendes da Costa and Gonçalo Sá Gomes, Sérvulo & Associados
It is also possible to seek interim relief (see 12.1 Common Forms of Interim Relief ).
a recruitment or staff personnel hiring or test- taking procedure; • pre-contractual litigation (Articles 100–103-B of the CPTA) – if the claimant is an interested party and the challenged act was instrumen - tal in allowing public works contracts, public works concessions, public service conces - sions, the purchase or lease of movable property, and the purchase of services; • subpoena to provide information, consult documents or issue certificates (Articles 104– 108 of the CPTA) – if the plaintiff has stand - ing under the law of access to administrative information (Law 26/2016 of 22 August) ( Lei de Acesso a Documentos Administrativos , or LADA); and • subpoena for the defence of rights, free - doms and guarantees (Articles 109–111 of the CPTA) – if, under ordinary proceedings, the plaintiff is unable to obtain an adequate protection of their substantive claim and the decision is final (ie, it cannot be resolved with any interim relief (precautionary measures)) by nature (eg, a peaceful public demonstration opposing the visit of a foreign dignitary that is illegally refused cannot be resolved “tem- porarily” , as the demonstration naturally must occur when the dignitary visits the country). Even if the claim does not relate to any of the foregoing, the court may still expedite the pro - ceedings and – after hearing the parties – adopt mechanisms to simplify and speed up the pro - cess (Article 7-A of the CPTA). This measure is to be used at the discretion of the court and the concerned party must demonstrate its necessity. However, even the usage of this measure does not allow the proceedings to follow as if they were an actual “urgent proceeding” ; therefore, the proceedings still suspend during judicial holidays and they do not take precedent over other proceedings (Article 36, No 2 of the CPTA).
10. Grounds 10.1 Scope of Judicial Review: Merits v Process The court cannot examine the merits of a decision if it pertains to the usage of discretionary powers of the administration. However, it may examine whether or not the legal limits prescribed by law were infringed – namely, the principles of legal - ity, good administration, equality, proportional - ity, justice and reasonableness, impartiality and good faith (Articles 3–7 of the CPA). The court may also analyse the process by which a decision came to be made (Article 161 and Article 163 of the CPA). The key criterion is if the act is either null or merely subject to be annulled (Article 162, No 2 and Article 163, No 3 of the CPA). The first may be known by the court regardless of any party raising the issue and the latter must be argued by the interested party. 10.2 Constitutional Challenge An act is illegal if it is contrary to the principles laid out in the CPA, which in turn mimic the prin - ciples laid out in the CRP. Nonetheless, if an act directly conflicts with the CRP, the court may still annul it (Article 163, No 1 of the CPA) or – if it infringes the essential core of fundamental rights – declare it null and void (Article 161, No 2(d) of the CPA). There is no direct recourse of the decision to the Constitutional Court on the grounds of an act being unconstitutional, as this court only exam - ines norms (Article 277 and Article 280 of the
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