From a substantive law perspective, entities and bodies entrusted with public powers or that are subject to administrative law, are bound by the general principles and rules governing administrative procedures and administrative activity, as set out in the Portuguese Administrative Procedure Code.

Certain entities from the State’s central administration, public owned companies, regulatory authorities, public institutes, local administrative entities (namely, municipalities), and the autonomous regions of Azores and Madeira are also governed by additional legislation that is specifically applicable to each entity.

Litigation regarding administrative or fiscal legal relations must be brought before administrative courts. In terms of determination of the court with local jurisdiction, claims must be filed in the court of the plaintiff’s residence. There are, however, certain exceptions, such as real estate matters (in which case the claim must be filed where the real estate is located) and civil liability (the claim must be filed where the harmful act occurred), among others.

Below are some examples of judicial claims that may be filed before the administrative courts:

• protection of fundamental rights and other legally protected interests arising within legal administrative relations;
• legality of rules or administrative acts;
• validity of pre-contractual administrative acts, and interpretation, validity and performance of administrative contracts;
• non-contractual civil liability of entities governed by public law or subject to administrative law principles;
• prevention, cessation and reparation of breaches of constitutionally protected values and assets (such as public health, housing, education, environment, land and urban planning, quality of life, cultural heritage and state property); and
• administrative decisions imposing fines for administrative offences relating to urban planning or tax.

The relevant factor in assessing whether a certain decision or action may be challenged before the administrative courts is the nature of the administrative act itself, in the sense that it is issued in the exercise of administrative powers, and not so much the nature of the entity that performed it.

Generally, legislative acts cannot be directly challenged before the court, but in a pending lawsuit the courts should refuse to apply legal norms they consider to be in violation of the Portuguese Constitution. If this occurs, an appeal should be brought before the Constitutional Court.

Independently of any court proceedings, the following entities may request the Constitutional Court to review the constitutionality or legality of legislation:

• President of the Republic;
• President of the Assembly of the Republic;
• Prime Minister;
• Ombudsman;
• Attorney General; or
• one tenth of the Members of Parliament.

When the relevant request concerns violations of regional rights or statutes of the autonomous regions of Azores and Madeira, the following entities may request the Constitutional Court to review the constitutionality or legality of legislation:

• the respective Representatives of the Republic;
• the Legislative Assemblies of the autonomous regions;
• the presidents of the autonomous regions;
• the presidents of the regional governments; or
• one tenth of the members of the respective Legislative Assembly.

From another perspective, the State may be held liable if a party claims that certain legislation, or lack thereof, caused damage giving rise to civil liability – based on a conflict between the legislation and the Constitution of the Portuguese Republic, international law, EU law or a legislative act of reinforced value. In this case, the State’s liability is limited to “abnormal damages” – that is, damages exceeding the normal burdens of social life and sufficiently serious to merit legal protection.

Rules that do not qualify as legislative acts may be challenged on the grounds of illegality. In addition, the court may also order the competent administrative entity to adopt said rule when legally required to do so. If the rule does not conflict with a statute but directly violates the Constitution, the court may refuse to apply it. However, only the Constitutional Court can annul it with general binding force.

The key factor in seeking to bring a challenge to government decisions is whether the decision was taken in the exercise of administrative powers and whether it produces external legal effects in a specific situation. Thus, the number of individuals affected by a decision is not relevant.

In general, agreements between private entities and public bodies qualify as administrative contracts. Purely private law agreements between public bodies and private entities (which are uncommon) fall under the jurisdiction of civil courts. However, the administrative act that gave rise to the contract may be challenged by anyone with a direct interest.

Acts or decisions that do not produce external legal effects (opinions, warnings, advice or guidance) cannot be challenged in court. There are, however, certain acts that are formally qualified as “opinions” that are, in fact, binding. Therefore, opinions or advice that are legally qualified as being binding can be subject to judicial challenge.

It is possible to challenge acts carried out by an entity engaged in commercial or non-governmental activities in the following circumstances.

• Exercise of administrative powers – when the challenged act results from the use of administrative powers, it may be reviewed by an administrative court. If the act concerns an expropriation (eg, by a concessionaire), the claim must be brought before a civil court.
• Public procurement – when a public procurement procedure involves a non-governmental entity, subject to the public procurement regime.
• Civil liability – a commercial or non-governmental body, regardless of its nature, may be held liable for damages if it acted in the exercise of public powers within the scope of administrative law.
• Public employment law – if the activity falls under public employment law, the worker may challenge the decision.

According to the Portuguese Constitution, administrative courts must adjudicate “disputes arising from administrative and fiscal legal relations”. However, the Constitutional Court has stated that this provision allows the legislator flexibility, meaning that certain disputes from administrative relations may be assigned to civil courts.

If a contract is legally qualified as an administrative contract, the parties are not allowed to qualify it as civil as a way of excluding administrative jurisdiction. Conversely, these entities parties may designate a contract that would otherwise fall under civil law as administrative.

Arbitration courts may also be established to decide in a certain number of matters, including issues relating to:

• contracts;
• non-contractual civil liability of the State and other bodies;
• validity of administrative acts; and
• matters relating to public employment relationships, provided no non-waivable rights are involved and the dispute does not arise from a workplace accident or occupational disease.

An appeal to the appellate court from an arbitral decision is only possible if the parties expressly agreed to this in the arbitration agreement.

However, appeal to the Supreme Administrative Court is still possible if:

• the arbitral decision contradicts the judgment of the Central Administrative Court or the Supreme Administrative Court; or
• the case raises a question of fundamental legal or social importance.

In principle, legal entities or individuals intending to bring administrative law challenges should have a direct involvement in the decision at stake, in the sense that the administrative act has harmed their legally protected rights or interests.

Public and private entities, and notably charities and NGOs, may challenge an administrative act if it concerns the rights and interests they are responsible for defending, even if the decision does not directly affect said entity.

It is possible to join a challenge to a decision by a public body. The process for joining an existing proceeding may vary depending on the purposes of the new plaintiff.

• If the purpose is simply joining the proceedings as they stand – intervention by adhesion – it can happen at any moment until the case has been judged. This only requires a simple application to the court, whereby the intervener considers the pleadings of the existing claimant as his own.
• If the purpose is to submit new pleadings – intervention by pleading – the intervention is only possible if it occurs within the pleadings phase.

It should be noted that in relation to proceedings regarding values and assets protected by the Portuguese Constitution – such as public health, environmental issues, urban planning, cultural heritage and public assets – any individual has the legal right to join the proceedings and to subsequently promote the enforcement of the corresponding court decision.

Generally, in administrative lawsuits other parties – besides the plaintiff and the defendant – may play the role of counter-interested parties. Such parties either hold the same interest as the public entity, or may be directly affected by the success of the claim.

Counter-interested parties must be mandatorily called to the proceedings. Otherwise, the court may not judge the merits of the case. Counter-interested parties play a role in the proceeding like any other party, although they cannot file an independent claim, since their interests are secondary to the interests of the main party.

No automatic discovery proceeding is foreseen, in such terms, in Portuguese civil and administrative procedures.

To ensure that the court has all relevant information, following the presentation of the defence, it is mandatory to send to the plaintiff the administrative file and any additional documentation related to the relevant subject matter. Each party must prove the facts on which the respective claim or defence (as applicable) is based.

Any facts not objected to by the opposing party will be deemed proven and therefore will not be subject to evidence. Only disputed facts are subject to the court’s examination. The court may order the parties to produce evidence they believe to be relevant, prior to the trial.

Parties may also ask the court to order the disclosure of documentation by the opposing party; however, the requesting party must reveal how the documents in question help support their claim.

All entities are obliged to collaborate in the pursuit of the truth. Refusal to do so may result in a fine. If the refuser is a part of the proceedings, the court may assess the refusal for evidential purposes. The possibility of pre-filing disclosure actions aims to ensure the presentation of documents that the holder does not want to provide.

Regardless of any judicial claim, everyone has the right to consult administrative documents.

The Portuguese jurisdiction provides for live evidence and cross-examination. Evidence must be presented directly to the judge, and testimonies must be given in person or through a video conference, allowing for cross-examination of the witness. If it is impossible for the witness to attend the proceedings, the court may exceptionally allow a written testimony.

The relevant legislation does not provide for any necessary preliminary steps, such as pre-action correspondence, prior to submitting a challenge.

Generally, filing a prior administrative appeal is not required in order to file an administrative law claim before the administrative courts. However, there are some exceptions: for instance, in relation to tax-related acts.

All decisions that aim to produce external legal effects in an individual and specific situation can be challenged, even prior to the finalisation of the relevant administrative proceedings. In the event of an unlawful act, or omission, a party may file an administrative complaint (addressed to the respective issuing body) or an administrative appeal (addressed to the issuing body’s hierarchical superior body) suspending the time limit for filing a judicial claim in an administrative court.

The time limit for challenging an administrative act is three months, or one year in the case of null or non-existent acts, and omissions. The time limit can be exceptionally extended (namely, in case of justifiable impediment, among others).

There is no time limit to challenge a rule, unless the rule is challenged on the grounds of a formal or procedural illegality, in which case a time limit of six months is generally applicable (with some exceptions, however).

When initiating a claim, the plaintiff is required to state the facts that constitute the cause of the claim and the respective legal grounds. Any witnesses and other means of proof that the plaintiff wishes to present or request must be foreseen in the initial claim.

The application must be submitted with documentary evidence in the following cases:

• challenge of an administrative act or regulation;
• request for declaration of non-existence of an administrative act;
• dismissal or rejection of the plaintiff’s claim for the practice of an administrative act; and
• failure to answer the author’s request for an administrative act.

Legal arguments and evidence must be included in the initial petition that starts the claim, demonstrating the legal grounds on which the claim is based. Nevertheless, arguments and evidence may be presented in later stages, depending on the subject matter of the dispute, usually at the “final hearing” (which comes before the judgment).

There is no mandatory initial sifting process once a claim is issued. However, if the court finds imperfections that will prevent it from deciding the merits of the claim, it may invite the relevant party to further correct any procedural document that may have been submitted.

Additionally, the court can hold a “prior hearing”, allowing both parties to present their legal arguments.

The applicable legislation provides for the existence of expedited proceedings in the following cases:

• electoral litigation;
• mass proceedings;
• pre-contractual litigation;
• summons to provide information, consult documents or issue certificates – if the plaintiff has standing under the law of access to administrative information; and
• summons for the defence of rights, freedoms and guarantees.

Even if the claim does not relate to any of the above-mentioned matters, the court may still expedite the proceedings – after the parties have been heard – by adopting measures to simplify and speed up the proceedings. However, in such cases, proceedings are suspended during judicial holidays, and do not take priority over other proceedings.

The court is not allowed to examine the merits of an administrative act, to the extent that it relates to the administrative entity’s discretionary powers. It may, however, examine whether the legal limits prescribed by law were breached in terms of the following principles:

• legality;
• good administration;
• equality;
• proportionality;
• justice; and
• reasonableness, impartiality and good faith.

The court may also examine the procedure that led to the issuance of the administrative act.

There is a written constitution in Portugal – the Portuguese Constitution – but it is not possible to appeal directly to the Constitutional Court against an administrative act on grounds of breach of the Constitution. To apply to the Constitutional Court, it is necessary to file an appeal before the judicial courts, arguing that the court cannot apply the legislation where the administrative act is based, on the grounds that said legislation violates the Constitution or a legislative act.

If the court refuses the application of a law on such grounds, the public prosecutor shall appeal the decision to the Constitutional Court.

It is possible to bring a challenge to a government decision on the basis that the decision-maker did not follow the relevant procedure for that decision. In fact, the occurrence of procedural errors may determine the nullity of the administrative acts, notably in the case of acts that totally lack legal form and disregard proper procedure, and resolutions of collegiate bodies taken in a tumultuous manner or without observing the legal quorum or majority required by law.

Other procedural illegality may be grounds for annulment of the relevant administrative act.

It is possible to bring a challenge on the basis that the decision-maker made an error of fact. For instance, an administrative act that certifies facts that do not exist or that are untrue is null and void. Errors relating to the facts may also constitute grounds of illegality. However, in these circumstances, the act can only be annulled by the court.

An administrative act or contract whose purpose is to renounce the ownership or exercise of powers conferred to administrative bodies is null and void, including in the exercise of discretionary powers. In such cases, it is possible to bring a challenge on the basis that the decision-maker abdicated their discretion.

It is possible to bring a challenge on the basis that the decision-maker was biased or acting under a conflict of interest, and to request the annulment of the relevant administrative act, provided that the plaintiff proves the existing bias or conflict.

The burden of proof on the plaintiff is legally waived whenever:

• the decision-maker has an interest in the act;
• the decision-maker’s spouse (or person with whom they live as spouses) or a specific relative has an interest in the act or a matter similar to the act in question;
• the decision-maker or any of their relatives intervened in the procedure as an expert or authorised representative; or
• 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 their relatives.

This does not apply in the following circumstances:

• the intervention of the decision-maker is in the nature of a purely expedient act;
• the act was the issuing of an opinion, as a member of the collegiate body competent for the final decision, where such formality is legally required; or
• the act was subsequently deferred to the competent body.

It is possible to bring a challenge on the basis of unequal treatment, to the extent that an administrative act breaches the principle of equality, which includes, but is not limited to, decisions based on gender, race, ethnic origin, religion, political or ideological beliefs.

One cannot claim that the administration is entitled to act unlawfully on the grounds that similar conduct has occurred in the past.

Portugual is a signatory of the European Convention on Human Rights. According to the Portuguese Constitution, the European Convention on Human Rights is applicable as the legal standard by which all administrative acts must abide. In addition, the Portuguese Constitution proclaims that fundamental rights must be interpreted and integrated according to the Universal Declaration of Human Rights.

It is possible to bring a challenge on proportionality grounds, provided that an administrative act violates the proportionality principle. According to the proportionality principle, the administrative act must:

• be able to fulfil its intended purpose;
• be necessary; and
• achieve a proper balance between the measures taken and the objectives pursued.

Administrative acts may be challenged on grounds of illegality – that is, based on the violation of the applicable law and general principles.

Additionally, in the cases listed below the administrative acts are null and void, and may, therefore, be challenged on such grounds:

• acts pertaining to other government branches’ competence;
• acts committed in “absolute incompetence” (ie, those that fall outside the legal and statutory attributions of the public legal entity);
• acts whose object or content is impossible, unintelligible or constitutes a criminal offence;
• acts that misuse public powers for private interest purposes;
• acts carried out under physical or moral coercion;
• acts that conflict with judicially resolved matters;
• acts that create pecuniary obligations not provided for by law; and
• acts carried out with total disregard for the legally required procedure (unless performed in a state of necessity).

The following categories of decision can never be challenged before the courts:

• political or legislative acts;
• acts that do not have external effects;
• acts with mere irregularities; and
• acts that could have been annulled (but the time limit has elapsed).

In addition, it should be noted that a party that accepts – expressly or tacitly – an administrative act that could have been annulled is not entitled to challenge said act.

The defendant is required to explain its grounds of defence in the statement of defence. This means that all factual and legal grounds opposing the plaintiff’s claim must be set out in the statement of defence. Optionally, the defendant may present a list of witnesses and documentary evidence, and request other forms of proof. Legal arguments, presentation of evidence, and witness testimony by the defendant generally take place during the final hearing.

It is possible to apply for interim relief. Generally, interim relief is not granted automatically, which means that the plaintiff must file for a precautionary measure to suspend the effects of the act being challenged, and demonstrate that:

• the claim is strong (fumus boni juris);
• the other party has infringed, or is about to infringe, the plaintiff’s rights;
• such a breach is likely to cause irreparable harm;
• there is urgency in granting the relief (periculum in mora); and
• the relief sought is proportionate to the potential detriment of the respondent.

The most commonly sought forms of interim relief, where the interim relief is automatic (in the sense that the plaintiff is not required to file separately for a precautionary measure), are as follows:

• automatic interim relief is provided if the challenged act pertains to the demolition of a building;
• in the case of pre-contractual challenges, execution of the contract must be suspended, unless one of the parties involved demonstrates that the damage resulting from suspension is greater than the damage caused by lifting it; and
• automatic interim relief also applies when the act concerns the payment of a specified sum, except if the act is of a punitive nature.

It is possible to be awarded damages in an administrative law challenge because the public administration is liable for damage resulting from unlawful acts or omissions committed with “minor fault” by members of its bodies. Such “minor fault” corresponds to the diligence that can reasonably be expected from a “zealous and compliant” office-holder, official or servant. The public administration is also liable when the damages do not arise from the conduct of a specific office-holder – or when it is not possible to prove the personal authorship of the action or omission – but are instead caused faute du service (ie, by the abnormal functioning of the service).

As mentioned in 10.2 Constitutional Challenge, only the Constitutional Court has the authority to annul legislation, and it is not possible to challenge a legislative act directly.

The court may order a public body to carry out an administrative act, if the latter has failed to do so. The interested party may also request that the public body adopt a specific conduct when facing an administrative act that denied their claim, or a positive act that does not fully satisfy it.

Where a challenge to a decision requires the administration to use discretionary powers, the court cannot determine the precise content of the act to be performed; instead, it must specify the obligations that the administration is required to comply with.

When a decision is deemed unlawful, and despite the grounds for annulment, the annulment effect does not occur when:

• the content of the annullable act cannot be otherwise, because the act has a binding content or the assessment of the specific case allows only one solution to be identified as legally possible;
• the purpose of the procedural or formal requirement that was disregarded has been achieved by other means; or
• it is proven beyond doubt that, even without the defect, the act would have been performed with the same content.

However, when the decision is annulled, and is suitable of producing its intended effects, the administration must abide by the court’s ruling.

The plaintiff can file for the execution of the sentence in the court where the first sentence took place.

Where the execution of a sentence is factually impossible, or where its enforcement would cause exceptional harm to the public interest, the plaintiff is entitled to monetary compensation.

The party that loses the lawsuit bears the costs of the entire proceedings, including court fees and the expenses incurred by the prevailing party. In cases where a party is unable to pay judicial costs, the party may apply for judicial assistance, prior to the first procedural act, except where the financial insufficiency arises after the beginning of the proceedings. The judicial assistance request must be filled at the Social Security Office of the residence of the future plaintiff or counter-interested party.

There are no special rules for costs based upon the nature of the case. However, certain entities are exempt from paying litigation costs, as follows:

• non-profit private legal persons, when acting exclusively within the scope of their special duties or to defend the interests conferred by their statute; and
• individuals, foundations or associations, when exercising the right of popular action.

There are no specific provisions in administrative jurisdiction regarding wasted costs (ie, those that result from improper, unreasonable or negligent acts of legal representatives).

The court may, however, order both the party and their counsel to pay monetary compensation to the opposing party in case of bad faith litigation, or if such party brings a claim forward knowing it to be false, wilfully fails to disclose the truth or acts imprudently.

Portuguese law provides for the right to appeal court decisions regarding administrative acts. Appeal to the appeal court may take place when the claim’s value surpasses EUR5,000 and the decision is unfavourable to the appealing party in an amount greater than EUR2,500.

Irrespective of the claim’s value, appeal of the following decisions is always possible:

• the dismissal of requests for a summons aimed at defending rights;
• 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.

Ordinary additional appeal to the Administrative Supreme Court may be allowed, on an exceptional basis, if the matter in question is of fundamental importance, or when the admission of the appeal is clearly necessary to ensure the proper application of the law.

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

• standardising case law;
• reviewing a decision following new information;
• in the event of serious procedural errors during the proceedings; or
• errors in the judgment itself.

Once all ordinary appeals have been exhausted, an appeal to the Constitutional Court may also be brought.

Appeals may be submitted before the Central Administrative Court (first appeal court), the Administrative Supreme Court and, where applicable, the Constitutional Court.

Appeals must be submitted within 30 days (or 15 days in case of urgent proceedings), by means of an application addressed to the court that issued the decision.

If the applicable legal criteria are met, the court shall grant the appeal. In case of refusal, the appellant may file a complaint to the higher court competent to decide the appeal, which may change the decision, allowing the appeal.

The court of appeal decides, in principle, on matters of fact and on legal grounds, although the Administrative Supreme Court decides on matters of law only (except in cases where it acts as a first instance court).

When it comes to an extraordinary review appeal, the court examines the judgment considering new information or serious procedural errors, not being limited to matters of law.