Any entity, regardless of nature, that wields public powers or is specially regulated by provisions of administrative law is bound by the general principles and rules governing the procedure and the administrative activity laid out in the Article 2 of the Code of Administrative Procedure (Código do Procedimento Administrativo, or CPA).

However, Part II of the CPA only aims at regulating the functioning of the various bodies of the State (central, local, independent or indirect), which may be subject to additional legislation, as follows.

• The key piece of legislation regulating municipal law is the Regime of Local Authorities (Law 75/2013 of 12 September).
• Regulatory entities are also governed by Law 67/2013 of 28 August.
• Public institutions are regulated by Law 3/2004 of 3 January.

Such bodies can also issue regulations that – although limited by law – are also binding for both external parties and the issuing bodies themselves.

Contentious challenges must be filed in an administrative court if they pertain to administrative and fiscal legal relations ‒ namely, per Article 4, No 1 of the Statute of the Administrative and Tax Courts (Estatuto dos Tribunais Administrativos e Fiscais, or ETAF):

• the protection of fundamental rights and other legally protected interests occurring in the context of administrative relationships;
• the legality of norms or administrative acts carried out by any body of the public administration or the autonomous region – or by any entity, regardless of its nature – in the exercise of public powers;
• the validity of pre-contractual acts and the interpretation, validity and execution of administrative contracts, including those governed by the Code of Public Procurement (Código dos Contratos Públicos, or CCP);

• the non-contractual civil liability of any entity, regardless of its nature, that is either governed by public law or exercises public authority or is governed by provisions or principles of administrative law – including non-contractual civil liability for damages resulting from the exercise of political, legislative and judicial functions;

• the prevention, cessation and reparation of violations of constitutionally protected values and goods – in terms of public health, housing, education, the environment, land use planning, town planning, quality of life, cultural heritage, and state property – when such violations are committed by public entities; and

• judicial challenges to public administration decisions imposing fines, in the context of administrative offences for violating administrative law rules on town planning or for violating tax rules.

Usually, the claim must be filed in the court where the plaintiff has its residence (Article 16 of the Code of Administrative Court Procedure (Código de Processo nos Tribunais Administrativos, or CPTA), but there are some exceptions. Per Articles 17, 18, 19 and 20 of the CPTA, if the lawsuit pertains to:

• real estate – the claim must be filed in the area where the property is located;

• civil liability – the claim must be filed in the area where the action that caused the damage took place;

• contracts – the claim must be filed in the area where the contract is to be executed; and

• claims against autonomous regions – the claim must be filed in the area where the defendant has its headquarters.

The status or nature of the defendant is irrelevant when assessing the susceptibility of any decision or action to be contentiously challenged, as the key criterion pertains to the nature of the administrative act to be challenged.

It is not possible to directly challenge a legislative act in Portugal (Article 4, No 3(a) of the ETAF). However, all courts of law can (and should) refuse to apply legislation they find to be unconstitutional (Article 204 of the Portuguese Constitution (Constituição da República Portuguesa, or CRP)). If this is so, there must then be an appeal to the Constitutional Court (see 15.1 Right to Appeal and 15.2 Appeal Forums).

Also, if one claims that the legislation itself (or lack thereof) caused damages and is therefore grounds for civil liability, the administration can only be liable for “abnormal damages” ‒ ie, those that go beyond the normal costs of living in society and are serious enough to merit legal protection (Articles 2 and 15 of the Regime of Civil Liability of the State (Regime da Responsabilidade Civil Extracontratual do Estado e das demais Entidades Públicas, or RRCEE)). These claims must be grounded in the law conflicting with the CRP, international law, EU law, or a legislative act of reinforced value (Article 15, No 1 of the RRCEE).

Regardless of any claim in court, the following bodies can request that the Constitutional Court examine whether a law is unconstitutional or illegal, in order to strike out legislation (Article 281, No 2 of the CRP):

• the President of the Republic;
• the President of the Assembly of the Republic;
• the Prime Minister;
• the Ombudsman;
• the Attorney General of the Republic;
• one tenth of the Members of the Assembly of the Republic; and
• the Representatives of the Republic, the Legislative Assemblies of the autonomous regions, the presidents of the Legislative Assemblies of the autonomous regions, the presidents of the regional governments, or one tenth of the deputies to the respective Legislative Assembly, when the request for a declaration of unconstitutionality is based on a violation of the rights of the autonomous regions or the request for a declaration of illegality is based on a violation of the respective statute.

Any norm, other than a legislative act, can be challenged on grounds of illegality (Article 72 of the CPTA). The court may also command the administration to adopt a rule if it was obliged to do so, by law. However, if the rule does not conflict with a law but directly conflicts with the CRP, then the court may refuse its application to the case but only the Constitutional Court has the power to generally annul it (Article 281, No 1 of the CRP and Article 72, No 2 of the CPTA).

The number of people affected by a decision is irrelevant, as the appropriate criteria is whether or not it was a decision exercising administrative powers and if it produced external legal effects in an individual and concrete situation (Article 51, No 1 of the CPTA and Article 148 of the CPA).

Purely private law agreements between public bodies and private entities are quite rare, as most situations fall within the notion of “administrative contracts” (Article 280, No 1(a) of the CCP and Article 200, No 1 of the CPA). These private law contracts cannot be challenged as though they were administrative and so they are subject to the jurisdiction of civil courts. However, the administrative act from which they arose can be challenged by anyone who claims to have a direct and personal interest (Article 55, No 1(a) of the CPTA).

Any decision or act that does not produce external effects, such as an opinion, a warning, advice or guidance, cannot be judicially challenged (Article 51 of the CPTA). However, some opinions or advice may be binding (Article 91, No 1 of the CPA) and therefore can be challenged in court.

Depending on the issue, it may be possible to challenge a person or body that performs commercial or non-governmental activities in the following circumstances.

• If the challenged act follows from the exercise of administrative powers, then it may be challenged in an administrative court; however, if the act is an expropriation (eg, by a concessionaire), then the lawsuit must be filed in a civil court (Article 4, No 1, a contrario sensu, of the ETAF).
• If it pertains to civil liability, then the commercial or non-government body – regardless of nature ‒ may be liable for damages if it acted in the exercise of an administrative function, by using public powers, or by acting within the scope of provisions or principles of administrative law (Article 1, No 2 of the RRCEE).
• If the commercial or non-government activity falls under public employment law, then the worker (and, in some cases, a union) may challenge the decision (Article 4, No 1(b) of the ETAF).
• If a public procurement procedure involves any commercial or non-governmental entity, subject to the public procurement regime (Article 2, No 2 and Article 7 of the CCP), both the contract and pre-contractual administrative acts can be challenged by any interested party.

Under Article 212, No 3 of the CRP, administrative courts must resolve “disputes arising from administrative and fiscal legal relations”. However, the prevailing opinion of the Constitutional Court is that this provision avows some leeway to the legislator, so that disputes arising from some administrative relations may be adjudicated in civil courts (eg, expropriation).

If a contract is deemed administrative by law, the parties cannot consider it to be civil, thus ousting the court’s administrative law jurisdiction. However, the parties may qualify a contract that would otherwise be subject to civil law as administrative (Article 280, No 1 of the CCP).

Regardless, arbitral courts may be set up for the judgment of the following (Article 180, No 1 of the CPTA):

• matters relating to contracts, including administrative acts relating to their execution (which include the power to annul the act or declare it null and void);
• matters relating to non-contractual civil liability of the State (and other bodies – see, 4.1 Judicial Review of Commercial and Non-Governmental Decisions), including matters relating to the right of recourse against a public official;
• questions concerning the validity of administrative acts, unless otherwise determined by law; and
• questions relating to public employment relationships, when there are no unavailable rights at stake and when the issues are not the result of an accident at work or an occupational disease.

An appeal to the appellate court of a decision of an arbitral court is only possible if the parties have expressly provided for this option in the arbitration agreement (Article 39, No 4 of Law 63/2011 of 14 December). However, per Article 185-A, No 3 of the CPTA, there can still be an appeal to the Administrative Supreme Court of an arbitral decision if:

• it contradicts, on the same fundamental question of law, a judgment handed down by the Central Administrative Court or the Supreme Administrative Court; or
• a question of fundamental legal or social importance is at issue, or when admission of the appeal is clearly necessary for a better application of the law (Article 150 of the CPTA).

Anyone who claims to have a direct and personal interest – namely, because they have been harmed by the administrative act in terms of their legally protected rights or interests – can challenge the administrative decision or action (Article 55, No 1(a) of the CPTA).

Any public or private entities can challenge an administrative act if it pertains to the rights and interests they are responsible for defending (Article 55, No 1(c) of the CPTA), regardless of whether or not they were directly affected by the decision.

Any singular individual has legal standing to bring and intervene in main (and precautionary) proceedings aimed at defending constitutionally protected values and assets, such as public health, the environment, town and country planning, quality of life, cultural heritage, and the assets of the State, the Autonomous Regions and local authorities, as well as to promote the enforcement of the corresponding court decisions (Article 9, No 2 of the CPTA).

The possibility of joining an existing proceeding with a “primary and spontaneous intervention” (art.º 312.º, Code of Civil Procedure (Código de Processo Civil, or CPC), applicable, ex vi, Article 1 of the CPTA), depends on the intentions of the new plaintiff. If the intervener merely wants to join the proceedings as they stand – with an “intervention by adhesion” ‒ then it can happen at any moment until the case has definitively been judged and only requires a simple application to the court, with the intervener making the pleadings of the existing claimant their own (Article 313 of the CPC, ex vi, Article 1 of the CPTA). However, if the intervention is “by pleading” – with the intervener formulating their own application ‒ then the intervention is only admissible until the end of the pleadings phase (Article 314 of the CPC, ex vi, Article 1 of the CPTA).

Counter-interested parties have interests that coincide with the administration’s or may be directly affected by the success of the claim (Article 57 of the CPTA) – for example, the winner of a public contract that someone else challenges.

These parties must be called to the proceedings (Article 10, No 1, Article 57, and Article 68, No 2 of the CPTA). If they are not, the court may not judge the merits of the case (Article 89, No 4(e) of the CPTA) and – if such a decision ultimately takes place – it is unenforceable against them (Article 155, No 2 of the CPTA).

Counter-interested parties may not formulate an autonomous claim, as their interests are secondary to the interests of the main party, but they play a role in the proceeding like any other party – for example, they may contest a pleading (Articles 81 and 83 of the CPTA), agree or oppose a judge’s preliminary decision (despacho saneador) (Article 88 of the CPTA), or propose and question witnesses (Article 118, No 6 of the CPTA).

Portuguese civil and administrative procedures do not have a discovery proceeding, as such.

Upon the presentation of its defence, the defendant is obliged to send the administrative file (if any) to the plaintiff, as well as all other documents relating to the subject matter of the case (Article 84, No 1 of the CPTA).

The general rule is that each party bears the burden of proving the facts on which the claim or the defence is based on. Thus, any facts not objected to by the opposing party will be deemed proven and therefore will not be subject to evidence (Article 574, No 2 of the CPC). Only disputed facts face judicial scrutiny.

Prior to the trial, the court may order the parties to produce any evidence deemed relevant (Article 90 of the CPTA and Article 410 of the CPC).

A party may also ask the court to order the other party to disclose documentation, but the requesting party must indicate the facts it intends to prove with the requested documents (Article 429 of the CPC, ex vi, Article 1 of the CPTA). Such requests for disclosure of documentation will only be granted if the requesting party is unable to obtain the documents by any other means or has substantial difficulty in doing so.

Everyone has a duty to co-operate in the discovery of the truth by answering any questions asked of them, submitting to the necessary inspections, providing whatever is requested, and carrying out any acts that may be ordered. Those who refuse to co-operate properly will be sentenced to a fine (and may be liable to any legally possible coercive means) and, if the refuser is a party to the proceedings, the court will freely assess the value of the refusal for evidential purposes (Article 417, Nos 1 and 2 of the CPC, ex vi, Article 1 of the CPTA).

Also, it is possible to pre-file disclosure actions – with the aim of ensuring the presentation of things or documents that the possessor or holder does not want to provide (Articles 1045–1047 of the CPC, ex vi, Article 1 of the CPTA) ‒ or request conservatory measures aimed at preserving documents (Article 403 of the CPC, ex vi, Article 1 of the CPTA).

There may also be a duty to preserve evidence even before the proceedings, under penalty of an inversion of the burden of proof if the violation of this duty has caused the impossibility of proof (Article 344, No 2 of the Civil Code, ex vi, Article 1 of the CPTA).

Note that generally, regardless of any judicial claim to be adjudicated in court, everyone has the right to consult administrative documents (see 9.7 Expedited Proceedings).

Although unwritten, it is unanimously accepted that civil and administrative proceedings are bound by the “principle of immediacy”, which states that there must be a direct and personal contact between the judge and the various sources of evidence. As a manifestation of this principle, not only must any evidence be presented directly to the judge, but also any testimony must generally be given personally – either in person or through video conference (Article 502, ex vi, Article 1 of the CPTA) ‒ and cross-examination of the witness must be allowed (Article 521, ex vi, Article 1 of the CPTA).

Exceptionally, if it is impossible or very difficult for the witness to personally attend the proceedings, the court may allow for the witness to testify in writing (Article 518 of the CPC, ex vi, Article 1 of the CPTA). Cross-examination still applies, however.

There are no preliminary steps (eg, pre-action correspondence) required to issue a challenge.

It is not necessary for the administrative proceeding to be finalised to challenge a decision (Article 51, No 1 of the CPTA). It is expressly permitted to challenge a decision that cannot be re-examined at a later stage of the same procedure or one that may jeopardise the conditions for the subsequent exercise of legally conferred competences (Article 51, No 2 of the CPTA).

Facing any illegal action or omission, one can file a complaint (addressed to the issuing body) or a hierarchical appeal (addressed to its hierarchical superior) as means of an administrative appeal, which suspends the time limit for filing a contentious claim in a court of law (Article 190, No 3 of the CPA).

Generally, filing an administrative appeal is not a prerequisite for contentious challenges but there are some exceptions – for example, errors in a tax reverse charge (Article 131 of the Code of Tax Procedure and Process (Código de Procedimento e de Processo Tributário, or CPPT). In those cases, the administrative appeal suspends the effect of the administrative act (Article 189, No 1 of the CPA).

The time limit for challenging an administrative act is quite fleeting – three months in the case of an administrative act (Article 58, No 1(b) of the CPTA) or one year in the case of omissions (Article 69, No 1 of the CPTA).

However, per Article 58, No 3 of the CPTA, this time limit can be extended:

• if there is a justifiable impediment (Article 140 of the CPC);
• within three months of the date on which the error ceased, when it is shown – with due respect for the adversarial process ‒ that, in the specific case, the timely submission of the petition was not required of a normally diligent citizen because the administration misled the interested party; or
• when, not yet one year after the date of the act or its publication (when mandatory), the delay should be considered excusable ‒ given the ambiguity of the applicable legal framework or the difficulties that, in the specific case, arose as to the identification of the contested act or its qualification as an administrative act or as a norm.

If the claim is directed at a rule, then there is no time limit (Article 74, No 1 of the CPTA), unless the rule is challenged on grounds of a formal or procedural illegality (74, No 2 of the CPTA) – in which case, a time limit of six months is imposed. This six-month exception cannot apply if the formal or procedural transgression is unconstitutional, if no procedural steps were taken, or there was no previous consultation (required by law).

Note that, regardless of any judicial claim, the administration can annul an act within six months of the competent body becoming aware of the cause of the invalidity. However, this time limit cannot be greater than five years after the act was issued (Article 168, No 1 of the CPA).

The statute of limitation for civil liability of the administration is three years (Article 498 of the Civil Code, ex vi, Article 5 of the RRCEE).

The claimant is required to set out the essential facts that constitute the cause of the claim and the legal grounds on which the claim is based on (Article 78, No 2(f) of the CPTA).

If the plaintiff wishes to present a list of witnesses and request other means of proof, they must do so at the end of the petition and may indicate – where appropriate – that the documents needed for proof are contained in the administrative file (Article 78, No 4 of the CPTA).

The initial application must be accompanied by documentary evidence, depending on the claim, when (Article 79, No 3 of the CPTA):

• an act or norm is challenged (with a document proving their issuance);
• a declaration of non-existence of an administrative act is sought (with any proof of the appearance of such an act);
• the plaintiff’s claim for the practice of an administrative act has been dismissed or rejected (with a document proving the dismissal or rejection);
• the author’s request for an administrative act has not been answered (with a copy of the request submitted or with a receipt or other document proving that the original was received by the competent services).

The introductory petition that initiates the claim must already present the arguments and evidence demonstrating the legal grounds on which the claim is based (Article 78, No 2(f) of the CPTA).

Additional stages for presenting legal arguments and evidence will be provided. However, depending on the discussed issue, the point at which they occur may vary. Generally, legal arguments, presenting of evidence, and witness testimony occurs at the “final hearing” (Article 91 of the CPTA) – ie, the last stage before the sentence itself.

There is no mandatory initial sifting process in order to ascertain if a claim has standing.

However, if the court finds the pleading or the defence have imperfections that will prevent it from deciding the merits of the claim, it may invite the party to correct what it has submitted (Article 87 of the CPTA). Also, if the court finds that there may be an issue that prevents it from discussing the merits of the claim (eg, the court lacks competence or the claim was filed after the legal time limit), the court can conduct a “prior hearing” (Article 87-A of the CPTA), allowing the parties to present their legal arguments on why it must or must not be the case.

Some claims are urgent by nature. Thus, Article 36 of the CPTA provides the following expedited procedures to adjudicate them:

• electoral litigation (Article 98 of the CPTA) – if the plaintiff is or can be an elector;
• mass proceedings (Article 99 of the CPTA) – when 50 or more participants applied for a recruitment or staff personnel hiring or test-taking procedure;
• pre-contractual litigation (Articles 100–103-B of the CPTA) – if the claimant is an interested party and the challenged act was instrumental in allowing public works contracts, public works concessions, public service concessions, the purchase or lease of movable property, and the purchase of services;
• subpoena to provide information, consult documents or issue certificates (Articles 104–108 of the CPTA) – if the plaintiff has standing under the law of access to administrative information (Law 26/2016 of 22 August) (Lei de Acesso a Documentos Administrativos, or LADA); and

• subpoena for the defence of rights, freedoms and guarantees (Articles 109–111 of the CPTA) – if, under ordinary proceedings, the plaintiff is unable to obtain an adequate protection of their substantive claim and the decision is final (ie, it cannot be resolved with any interim relief (precautionary measures)) by nature (eg, a peaceful public demonstration opposing the visit of a foreign dignitary that is illegally refused cannot be resolved “temporarily”, as the demonstration naturally must occur when the dignitary visits the country).

Even if the claim does not relate to any of the foregoing, the court may still expedite the proceedings and ‒ after hearing the parties ‒ adopt mechanisms to simplify and speed up the process (Article 7-A of the CPTA). This measure is to be used at the discretion of the court and the concerned party must demonstrate its necessity. However, even the usage of this measure does not allow the proceedings to follow as if they were an actual “urgent proceeding”; therefore, the proceedings still suspend during judicial holidays and they do not take precedent over other proceedings (Article 36, No 2 of the CPTA).

It is also possible to seek interim relief (see 12.1 Common Forms of Interim Relief).

The court cannot examine the merits of a decision if it pertains to the usage of discretionary powers of the administration. However, it may examine whether or not the legal limits prescribed by law were infringed – namely, the principles of legality, good administration, equality, proportionality, justice and reasonableness, impartiality and good faith (Articles 3–7 of the CPA).

The court may also analyse the process by which a decision came to be made (Article 161 and Article 163 of the CPA).

The key criterion is if the act is either null or merely subject to be annulled (Article 162, No 2 and Article 163, No 3 of the CPA). The first may be known by the court regardless of any party raising the issue and the latter must be argued by the interested party.

An act is illegal if it is contrary to the principles laid out in the CPA, which in turn mimic the principles laid out in the CRP. Nonetheless, if an act directly conflicts with the CRP, the court may still annul it (Article 163, No 1 of the CPA) or – if it infringes the essential core of fundamental rights ‒ declare it null and void (Article 161, No 2(d) of the CPA).

There is no direct recourse of the decision to the Constitutional Court on the grounds of an act being unconstitutional, as this court only examines norms (Article 277 and Article 280 of the CRP). Therefore, to find recourse to the Constitutional Court, one must argue that the administrative 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).

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 proceedings 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.

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).

Any act or contract whose purpose is to relinquish 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 competence entails the exercise of discretionary powers 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 abdication 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).

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, 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-mentioned 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).

An administrative act can be annulled if the decision violates the principle of inequality (Article 6 of the CPA). As such, a decision that distinguishes on the grounds of lineage, sex, race, language, place of origin, religion, political or ideological beliefs, education, economic situation, social status, or sexual orientation is generally prohibited.

However, one cannot argue that the administration must act illegally on the grounds of it doing so in previous situations, regardless of how consistent the practice has been.

Portugal signed and ratified the ECHR. Therefore, 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. Article 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.

Any decision that violates the principle of proportionality 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 relationship between means and ends.

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);
• 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 necessity, 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).

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 unconstitutional law (see 10.2 Constitutional Challenge);
• an act that does not produce external effects (if it is non-binding for a subsequent administrative body) (Article 51 of the CPTA);
• a merely irregular act (Article 51 of the CPTA); and
• an act that could have been subject for annulment 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).

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, presenting 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.

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 administration 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 Edificação, or RJUE).
• The same automatic interim relief also happens 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 (periculum in mora); and
• that sought relief is proportionate to the detriment of the respondent.

The administration (and other bodies, whether public or civil (see 4.1 Judicial Review of Commercial 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 is zealous and compliant (Article 10, No 1 of the RRCEE).

The administration is also liable when the damages are not the result of the behaviour of a specific office-holder (or when it is not possible to prove the personal authorship of the action or omission) but must be attributed to the abnormal 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).

It is not possible to directly challenge a legislative act (Article 4, No 3(a) of the ETAF), as only the Constitutional Court has the power to generally 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 Constitutional Challenge.

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 administration 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 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).

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 administration 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 sentence required the return of a piece of property that, for any reason, was destroyed) or its execution 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 environmental concerns – the State is no longer interested in anyone exploring said river), then the plaintiff is entitled to a monetary compensation (Article 163 and Article 166 of the CPTA).

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 economic 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 Regulation for Procedural Costs (Regulamento de Custas 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).

The nature of the case is irrelevant when assessing the obligation to pay court-related costs, but the following are exempt from paying costs of litigation:

• any person, foundation or association when exercising the right of popular action (Article 4, No 1(b) of the RCP);
• non-profit private legal persons, when acting exclusively within the scope of their special duties or to defend the interests specifically conferred on them by their statute or under the terms of legislation applicable to them (Article 4, No 1(f) of the RCP).

There are no such provisions for wasted costs. However, if a party litigates in bad faith, makes a claim knowing it is false, wilfully fails to tell the truth or acts in a reckless manner, the court can order both the party concerned and its counsel to pay compensation to the opposing party (Article 542 of the CPC, ex vi, Article 1 of the CPTA).

Also, the concerned party may sue their legal representative for civil responsibility.

A party can appeal to the appellate court when the value of the claim is higher than EUR5,000 and the decision is unfavourable to the appealing party in an amount that is more than EUR 2,500 (Article 142, No 1 of the CPTA).

An appeal is always admissible, regardless of the value of the case and the success of the case, against the following decisions (Article 142, No 3 of the CPTA):

• the dismissal of requests for a subpoena for the defence of rights, freedoms and guarantees;
• decisions rendered in sanctioning matters;
• decisions rendered against case law standardised by the Administrative Supreme Court; and
• termination of the proceedings without ruling on the merits of the case.

Exceptionally, there may be an ordinary additional appeal to the Administrative Supreme Court if the question at hand ‒ due to its legal or social relevance ‒ is of fundamental importance or when the admission of the appeal is clearly necessary for a better application of the law (Article 150 of the CPTA).

There may also be an extraordinary appeal to the Administrative Supreme Court to:

• standardise case law, if ‒ on the same fundamental question of law – there is a contradiction between:
1. a judgment of the Central Administrative Court and another judgment previously handed down by the same or another Central Administrative Court or by the Administrative Supreme Court; and
2. between two judgments of the Administrative Supreme Court (Article 152 of the CPTA);
• review the sentence in light of new information or grave errors of the court procedure or sentence (Article 696 of the CPC, ex vi, Article 154 of the CPTA).

Once all ordinary appeals have been exhausted, there may also be an appeal to the Constitutional Court, provided the applicable norms can be found to be unconstitutional (Article 280 of the CRP).

There may be an appeal to a Central Administrative Court (first appellate court), the Administrative Supreme Court and the Constitutional Court, provided the prerequisites listed in 15.1 Right to Appeal are met.

The appeal must be lodged within 30 days from the notification of the decision (Article 144, No 1 of the CPTA) by means of an application addressed to the court that handed down the decision (Article 144, No 2 of the CPTA).

The judge will then grant an appeal if the appropriate criteria are met (Article 145, No 1 of the CPTA). If the decision is to deny an appeal, the appellant can file a complaint within 10 days to the court that would be competent to adjudicate the appeal, which can revert the decision and grant the appeal (Article 643 of the CPTA, ex vi, Article 145, No 3 of the CPTA).

Generally, the appellate court decides on matters of fact and law (Article 149, No 1 of the CPTA) and the Administrative Supreme Court decides on matters of law (Article 150, No 2 of the CPTA). However, in the case of an extraordinary review appeal (see 15.1 Right to Appeal), the court reviews the sentence in light of new information or grave errors of the court procedure or sentence, so it is not bound to decide on matters of law alone.