PORTUGAL Law and Practice Contributed by: Mark Kirkby, Francisca Mendes da Costa and Gonçalo Sá Gomes, Sérvulo & Associados
grandsons, great-grandsons (etc), fathers, grandfathers, great-grandfathers (etc), or brothers have an interest in the act; • the decision-maker, or any of the above-men - tioned relatives of the decision-maker, have an interest in a matter similar to the one to be decided; • the decision-maker, or any of the above- mentioned relatives of the decision-maker, intervened in the procedure as an expert or authorised representative or gave an opinion on the issue to be resolved; • the decision-maker is taking part in a decision of an appeal against a decision handed down by themselves, or with their intervention, or handed down by any of the above-mentioned relatives of the decision-maker. Per Article 69, No 2 of the CPA, this provision does not apply if: • the intervention of the decision-maker amounts to a purely expedient act – namely, a certifying act; • the act was the issuing of an opinion, as a member of the collegiate body competent for the final decision, where this formality is required by the applicable rules; • the act was then deferred to the competent body (Article 195, No 2 of the CPA). 10.7 Unequal Treatment An administrative act can be annulled if the deci - sion violates the principle of inequality (Article 6 of the CPA). As such, a decision that distin - guishes on the grounds of lineage, sex, race, language, place of origin, religion, political or ideological beliefs, education, economic situa - tion, social status, or sexual orientation is gener - ally prohibited.
However, one cannot argue that the administra - tion must act illegally on the grounds of it doing so in previous situations, regardless of how con - sistent the practice has been. 10.8 Human Rights Portugal signed and ratified the ECHR. There - fore, under Article 8, No 2 of the CRP, the ECHR directly applicable as a legal standard by which all administrative acts must abide. In fact, Article 16, No 1 of the CRP lays down an “open clause” taking in the rights enshrined in other laws and rules of international law. Arti - cle 16, No 2 of the CRP states that, under the CRP, fundamental rights must be interpreted and integrated in light of the Universal Declaration of Human Rights. 10.9 Proportionality Any decision that violates the principle of pro - portionality can be annulled (Article 7 of the CPA). The criteria for such are that: • the act must be suitable or able to fulfil its intended purpose; • the act must be necessary – ie, one must choose the means that least jeopardises the interests of the individual; and • the act must adequately weigh up the rela - tionship between means and ends. 10.10Additional Grounds The following administrative acts are null and void (Article 161, No 2 of the CPA): • acts that pertain to the powers of other branches of government; • acts struck by “absolute incompetence” (ie, those that fall outside the public interests to be promoted by the issuing ministry or legal person);
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