PORTUGAL Law and Practice Contributed by: Mark Kirkby, Francisca Mendes da Costa and Gonçalo Sá Gomes, Sérvulo & Associados
11. Defence 11.1 Timing and Grounds of Defence The entire defence must be presented in the statement of defence (Article 78, No 3 of the CPTA). The defendant must set out the reasons of both fact and law opposing the plaintiff’s claim, set out the essential facts on which the raised objections are based on (Article 78, No 1 of the CPTA), and – if they so choose – present a list of witnesses, attach documents and request other evidence (Article 78, No 2 of the CPTA). As per the plaintiff, legal arguments, present - ing of evidence, and witness testimony by the defendant generally occur at the “final hearing” (Article 91 of the CPTA) – ie, the last stage before the sentence itself. 12. Interim Relief 12.1 Common Forms of Interim Relief In some cases, interim relief is “automatic” , as follows. • In the case of pre-contractual challenges, the act itself or the execution of the contract must be suspended, unless the administra - tion or counter-interested parties prove that – weighing in all the public and private interests at stake – the damage that would result from maintaining the execution of the act is greater than the damage that could result from lifting it (Article 103-A, Nos 1, 2 and 4 of the CPTA). • Automatic interim relief is provided in the same way if the challenged act pertains to the demolition of a building (Article 115, No 1 of the Regime for Urbanisation and Building ( Regime Jurídico da Urbanização e Edifi - cação , or RJUE).
• acts whose object or content is impossible, unintelligible, or constitutes or is determined by the commission of a criminal offence; • acts that misuse power for the purposes of private interests; • acts carried out under physical or moral duress; • acts that conflict with judicially resolved issues; • acts that create pecuniary obligations not provided for by law; and • acts carried out, except in a state of necessi - ty, with total disregard for the legally required procedure. In other instances, generally, the act can only be annulled (Article 163, No 1 of the CPA). 10.11Exempt Decisions It is not possible to challenge the following: • a political act (Article 4, No 3(a) of the ETAF) • a legislative act (Article 4, No 3(a) of the ETAF) – although it is possible to request the court to refuse the application of any unconsti - tutional law (see 10.2 Constitutional Chal- lenge ); • an act that does not produce external effects (if it is non-binding for a subsequent adminis - trative body) (Article 51 of the CPTA); • a merely irregular act (Article 51 of the CPTA); and • an act that could have been subject for annul - ment but the time limit has elapsed (Article 58 of the CPTA). Also, if someone either expressly or tacitly accepts an administrative act that could have been annulled, they can no longer challenge it (Article 56, No 1 of the CPTA).
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