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The new regime on the conflicts of jurisdiction between the judicial and administrative and tax courts: Law No. 91/2019, of September 4th

SÉRVULO PUBLICATIONS 12 Sep 2019

The new regime for the prevention and resolution of conflicts of jurisdiction between the judicial and administrative and tax courts was approved by the Law no. 91/2019, this past September 4th.

The mentioned regime revokes and replaces the obsolete and dysfunctional previous legal framework which was the result of two diplomas approved in the 1930s.[1] In fact, the entry into force, in 1976, of the new Fundamental Portuguese Law, based on principles and rules different from those in force at the time[2], had long required a proper regulation adapted to a new legal reality.

In this sense, the law establishes several relevant changes.

It should, therefore, be noted that, in the composition of the Court of Conflicts, two innovative rules are established:

     a) The presidency is taken over either by the President of the Supreme Court of Justice or by the President of the Supreme Administrative Court, depending whether the issue originated, respectively, from the judicial court or the administrative and tax jurisdiction court.

     b) Besides the President, two more judges are seated, one of them being the oldest Vice-President of the Supreme Court of Justice in charge and the other being the Vice-President of the Supreme Administrative Court elected from among and by the judges of the respective sections of administrative or tax litigation, depending on whether the matter in question is of administrative or tax nature.

Thus, the law breaks with the previous paradigm. On the one hand, it ceases to give the permanent presidency to the President of the Supreme Administrative Court, by establishing a regime of perfect parity between the top bodies of the judicial and the administrative and tax courts, having in mind the plurality and the wider-range of the points of view present within the court of conflicts. On the other hand, it abandons the rule that the remaining judges are drawn for each process, therefore, aiming at the stability and coherence of the jurisprudence of this instance and the achievement of efficiency gains.

Then, regarding the regime of the dispute resolution process, the matrix of which is regulated by the Procedure Civil Code on articles 109 to 114, the most important novelty is the creation of a third access route to the Court of Conflicts (articles 15 to 17), in addition to the two existing routes (the appeal of the decisions of the Courts of Appeal both of the judicial and administrative jurisdiction in cases of pre-conflict and the request for resolution in the event of an effective conflict). This third access route allows any court to address consultations on matters of jurisdiction, which, being the subject of immediate binding pronunciation by the Court of Conflicts, are intended to avoid as much as possible the proceedings concerning discussions on the competent jurisdiction.

Lastly, the legislator also took the opportunity to articulate the new regime of resolution of the conflicts of jurisdiction with the dispute resolution mechanism enshrined in article 1 (3) of the Court of Auditors’ Organization and Process Act (Law No. 98/97, of August 26th), which states that it is incumbent on the Court of Conflicts, with the composition envisaged therein, to solve the conflicts of jurisdiction between the Court of Auditors and the Supreme Administrative Court.

 

Débora Melo Fernandes

dmf@servulo.com

Joana Aragão Seia

jas@servulo.com

 


[1] The essential of the previous regime consisted of two diplomas prior to the Portuguese Constitution of 1976: Title II of the Regulation of the Supreme Council of Public Administration – approved by Decree No. 19 243, of January 16th, 1931, amended by Decree No. 19 438, of March 11th, 1931 – supplemented by the provisions of article 17 of Decree No. 23 185 of October 30th, 1933, a diploma which extinguished that Supreme Council and restored, in its substitution, with the Presidency of the Council, the Supreme Administrative Court.

[2] In particular, regarding the Courts’ independency (article 203), the prevalence of imperative court rulings for all public and private entities (article 205 (2)) and the parity itself between the three categories of the courts currently foreseen (article 209 (1)).

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Débora Melo Fernandes