PORTUGAL Law and Practice Contributed by: Mark Kirkby, Francisca Mendes da Costa and Gonçalo Sá Gomes, Sérvulo & Associados
• The same automatic interim relief also hap - pens when the act is not sanctioning in nature and it pertains to the payment of a certain sum (this is contingent on a guarantee having been provided in any of the ways provided for in tax law) (Article 50, No 2 of the CPTA). Generally, however, interim relief is not automatic and the plaintiff must – either before or during the trial – file for a precautionary measure in order to suspend the effects of the challenged act or norm (Article 112, No 2(a) of the CPTA). If this is the case, the plaintiff must prove the following: • prima facie it has a strong case (fumus boni juris); • the other party either infringed its right or is on the verge of doing so; • that such a breach is likely to cause harm that is not repairable or is not easily repairable; • that there is urgency in the decision (pericu - lum in mora); and • that sought relief is proportionate to the detri - ment of the respondent. The administration (and other bodies, whether public or civil (see 4.1 Judicial Review of Com- mercial and Non-Governmental Decisions )) is liable for damage resulting from unlawful acts or omissions committed with “minor fault” by members of its bodies, officials or agents in the exercise of their administrative functions and on account of such exercise (Article 7, No 1 of the RRCEE). This “minor fault” corresponds to the diligence and aptitude that can reasonably be asked – in light of the circumstances of each case – of an office-holder, official or servant who 13. Remedies 13.1 Damages
is zealous and compliant (Article 10, No 1 of the RRCEE). The administration is also liable when the dam - ages are not the result of the behaviour of a spe - cific office-holder (or when it is not possible to prove the personal authorship of the action or omission) but must be attributed to the abnor - mal functioning of the service ( faute du service ) – ie, when, given the circumstances and average standards of result, the service could reasonably have been required to act in such a way as to avoid the damages (Article 7, Nos 3 and 4 of the RRCEE). 13.2 Invalidating Legislation It is not possible to directly challenge a legisla - tive act (Article 4, No 3(a) of the ETAF), as only the Constitutional Court has the power to gener - ally strike out legislation (Article 281, No 1 of the CRP and Article 72, No 2 of the CPTA) – albeit subject to the caveat mentioned in 10.2 Consti- tutional Challenge . 13.3 Mandating Government Action Through Court Orders If the administration is silent when it should have carried out an administrative action, the court can command the administration to carry it out. The interested party can also require the admin - istration to carry out a specific course of action when facing an administrative act that rejects their claim or when facing a positive act that does not integrally satisfy their claim (Article 66 and Article 67, No 1 of the CPTA). If, owing to any challenge to a decision or action, the administration would be obliged to act in a way that presumes the exercise of discretionary powers, the court cannot determine the exact content of the act to be performed but it must outline the obligations to be observed by the
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