PORTUGAL Law and Practice Contributed by: Mark Kirkby, Francisca Mendes da Costa and Gonçalo Sá Gomes, Sérvulo & Associados
CRP). Therefore, to find recourse to the Consti - tutional Court, one must argue that the adminis - trative court cannot apply the legislation that the act is supposedly based on, on the grounds of it conflicting with the Constitution or a legislative act of reinforced value (Article 204 of the CRP). If the court ultimately refuses the application of any law on such grounds, the public prosecutor is obliged to file an appeal of the decision to the Constitutional Court (Article 280 of the CRP), which will then examine the constitutional legal issue – given that this is the only court with the power to generally declare a law null and void (Article 281, No 1 of the CRP). 10.3 Procedural Errors The type of acts that are subject to be declared null and void on the grounds of procedural flaws are: • acts that absolutely lack legal form – ie, those that completely disregarded proper procedure (Article 161, No 2(g) of the CPA); or • resolutions of collegiate bodies taken in a tumultuous manner or without observing the quorum or majority required by law (Article 161, No 2(h) of the CPA). Any other procedural illegality can stand as grounds for annulment of an administrative act (Article 163, No 1 of the CPA). Mere irregularities in the administrative proceed - ings do not entail the illegality of the act and therefore cannot serve as grounds to judicially challenge a decision. These procedural mishaps are non-essential, as they do not risk the legal protection of the interested party. 10.4 Factual Errors An act that certifies untrue or non-existent facts is null and void (Article 161, No 2(j) of the CPA).
Other errors of fact can also be grounds for its illegality but, in those circumstances, the act can only be annulled (Article 163, No 1 of the CPA). 10.5 Abdication or Fettering of Discretion Any act or contract whose purpose is to relin - quish the ownership or exercise of the powers conferred on administrative bodies by law is null and void (Article 36, No 2 of the CPA), regardless of whether the abdication or fettering of compe - tence entails the exercise of discretionary pow - ers or not. However, the law does allow for the use of a delegation of administrative powers, but: • the delegating body must be allowed by law to do so (Article 44, No 1 of the CPA); and • a delegation does not constitute an abdica - tion of administrative power, as the delegating body has the power to re-take competence from the delegate, as well as the power to annul, revoke or replace the act carried out by the delegate (Article 49, No 2 of the CPA). 10.6 Bias Any administrative act in which the decision- maker was biased (Article 6 of the CPA) or acting under a conflict of interest (Article 9 and Articles 69–76 of the CPA) can be annulled (Article 163, No 1 of the CPA). However, generally, the plaintiff must prove the existing bias or conflict. The law may forgo the burden of proof of the plaintiff, assuming the decision-maker was biased, in the following cases (Article 69, No 1 of the CPA): • the decision-maker has an interest in the act; • their spouse (or person with whom they live in conditions similar to those of spouses), sons,
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