PORTUGAL Law and Practice Contributed by: Mark Kirkby, Francisca Mendes da Costa and Gonçalo Sá Gomes, Sérvulo & Associados
administration in carrying out the due act (Article 71, No 2 of the CPTA). The court may also command the administration to issue a rule (Article 77 of the CPTA). 13.4 Next Steps Where a Decision Is Found Unlawful Per Article 163, No 5 of the CPA, even if the decision is deemed unlawful and therefore is grounds for annulment, it produces no effects in the following situations. • The content of the annullable act could not have been any other, because the content of the act was binding or the assessment of the specific case allows only one solution to be identified as legally possible (eg, no prior hearing took place, but the act would – by law – always result in a rejection of the interested party’s claim). • The purpose sought by the procedural or formal requirement that was omitted has been achieved by another means (eg, no prior hearing took place, because the interested party was consulted throughout the process and was given the opportunity to give input on the decision). • It is proven beyond doubt that, even without the illegality, the act would have been carried out with the same content (eg, the adminis - tration proves that – even while exercising discretionary powers – only the one outcome would have been possible). If, on the other hand, the decision is annulled and it can produce its intended effects, the administration must abide by its ruling (Article 162, No 1 of the CPTA). If it does not, the plaintiff can file for the execution of the sentence in the court where the first sentence took place (Article 164, No 1 of the CPTA).
If, however, when executing the sentence, it is factually impossible to execute it (eg, the sen - tence required the return of a piece of property that, for any reason, was destroyed) or its execu - tion would cause exceptional harm to the public interest (eg, the sentence entitled the plaintiff to privately explore a part of public dominion, such as a river, but – owing to unforeseen environ - mental concerns – the State is no longer inter - ested in anyone exploring said river), then the plaintiff is entitled to a monetary compensation (Article 163 and Article 166 of the CPTA). 14. Costs 14.1 Mechanisms to Protect Claimants From Excessive Costs The losing party bears the costs associated with the proceedings, including court fees, and the costs incurred by the prevailing party, including the costs of experts, translators and interpreters, certificates or other required documents and the fees the prevailing party has paid to its counsel (Articles 527–541 of the CPC, ex vi, Article 1 of the CPTA). If someone is unable to pay judiciary costs, the legal representative or any other court-related costs, they can file for “judiciary support” before their first judiciary act, except when their eco - nomic insufficiency is supervening (Article 16, No 1 and Article 18, No 2 of Law 34/2004 of 29 July and Article 26, Nos 6 and 7 of the Regula - tion for Procedural Costs ( Regulamento de Cus- tas Processuais , or RCP)). This request must be filled at the Social Security Office of the residence of the future plaintiff or counter-interested party (Article 20, No 1 of the Law 34/2004 of 29 July).
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