International Association of Supreme Administrative Jurisdictions IASAJ

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1 International Association of Supreme Administrative Jurisdictions IASAJ CARTAGENA CONGRESS (2013) "The administrative judge and environmental law" Foreword The current Portuguese administrative justice system is the result of a deepreaching reform that was conducted between 2002 and The key legislative acts governing administrative litigation in Portugal today are the Statute governing the Administrative and Tax Courts ETAF (acronym of Estatuto dos Tribunais Administrativos e Fiscais) approved by Law no 13/2002, of 19 February 2002, and the Code of Procedure of the Administrative Courts CPTA (acronym of Código de Processo nos Tribunais Administrativos) approved by Law no 15/2002 of 22 February 2002, as amended by Law no 4- A/2003 of 19 February 2003). Where there is no other specification, we answer to the questionnaire having those legal instruments in consideration. Questionnaire I. THE SOURCES OF THE ENVIRONMENTAL LAW 1) What are the national sources of environmental law (Constitution, Parliament Act, )? Which authorities are competent for enacting them (government, parliament State governments, agencies, local authorities, )?

2 2) What are the supranational sources (general public international law, regional conventions, ) concerning environrnental law that judges must enforce? 3) Does the administrative judge enforce the general principles of environmental law? Has he/she contributed to developing them? According to the Portuguese Constitution, the Portuguese Republic is a democratic state based on the rule of law, the sovereignty of the people, plural democratic expression and political organisation, respect for and the guarantee of the effective implementation of the fundamental rights and freedoms, and the separation and interdependence of powers, with a view to achieving economic, social and cultural democracy and deepening participatory democracy (article 2). Moreover, the norms and principles of general or common international law form an integral part of Portuguese law. The norms contained in duly ratified or approved international conventions come into force in Portuguese internal law once they have been officially published, and remain so for as long as they are internationally binding on the Portuguese state. The norms issued by the competent organs of international organisations to which Portugal belongs come directly into force in Portuguese internal law, on condition that this is laid down in the respective constituent treaties. The provisions of the treaties that govern the European Union and the norms issued by its institutions in the exercise of their respective competences are applicable in Portuguese internal law in accordance with Union law and with respect for the fundamental principles of a democratic state based on the rule of law (Article 8) Furthermore the fundamental rights enshrined in the Constitution shall not exclude any others set out in applicable international laws and legal rules. The constitutional precepts concerning fundamental rights must be interpreted and completed in harmony with the Universal Declaration of Human Rights (article 16). It is very clear, so, the rule of law and the binding force of the competent international legal instruments.

3 There is no particularity in what matters to supranational sources concerning, specially, environmental matters. The same can be said in what refers to the merely national sources of environmental law. In fact, and still under the Constitution, legislative acts comprise laws (Parliament), executive laws (Government) and regional legislative decrees (autonomous regions). Without prejudice to the subordination of executive laws that are published under legislative authorisation and of those that develop the general bases of legal regimes to the corresponding laws, laws and executive laws possess equal force (article 112). Government regulations shall take the form of regulatory decrees when so required by the law they regulate, as well as in the case of independent regulations. Regulations shall make express mention of the laws which they are intended to regulate, or which define the subjective and objective competence to issue them (article 112). Naturally, there are many merely national sources of environmental law. In addition, then, to the Constitution, we have legislative acts, Government regulations and also various local regulations. Many of these instruments consist of different types of plans. Article 90 of the Constitution provides that the objective of economic and social development plans shall be to promote economic growth, the harmonious and integrated development of sectors and regions, the just division of the national product between persons and between regions, the coordination of the economic policy with the social, education and cultural policies, the defence of the rural world, the preservation of the ecological balance, the defence of the environment and the quality of life of the Portuguese people. And article 91 states that National Plans shall be drawn up in harmony with the respective laws governing the Major Options, and may incorporate specific programmes with a territorial and sectoral scope. Government bills in relation to the Major Options shall be accompanied by reports setting out the grounds for them. National Plans shall be implemented on a decentralised, regional and sectoral basis.

4 In environmental cases as in all the other kind of cases, the administrative courts are the entities with the competence to administer justice in the name of the people. In administering justice the courts are responsible for ensuring the defence of those citizens rights and interests that are protected by law, repressing breaches of democratic legality and deciding conflicts between interests, public and private. The courts are independent and subject only to the law. 4) Is the environmental law considered as a human right or a fundamental right in a constitutional or conventional sense? When enunciating its Fundamental Principles, the Constitution provides that one of the fundamental tasks of the state is to protect and enhance the Portuguese people s cultural heritage, defend nature and the environment, preserve natural resources and ensure correct town and country planning (article 9). Later on, Part I - Fundamental rights and duties, Title III - Economic, social and cultural rights and duties, Chapter II - Social rights and duties, article 66 (Environment and quality of life), the Constitution provides: «1. Everyone has the right to a healthy and ecologically balanced human living environment and the duty to defend it. 2. In order to ensure the right to the environment within an overall framework of sustainable development, the state, acting via appropriate bodies and with the involvement and participation of citizens, is charged with: a) Preventing and controlling pollution and its effects and the harmful forms of erosion; b) Conducting and promoting town and country planning with a view to a correct location of activities, balanced social and economic development and the enhancement of the landscape; c) Creating and developing natural and recreational reserves and parks and classifying and protecting landscapes and places, in such a way as to guarantee the conservation of nature and the preservation of cultural values and assets that are of historic or artistic interest;

5 d) Promoting the rational use of natural resources, while safeguarding their ability to renew themselves and ecological stability, with respect for the principle of inter-generational solidarity; e) In cooperation with local authorities, promoting the environmental quality of rural settlements and urban life, particularly on the architectural level and as regards the protection of historic zones; f) Promoting the integration of environmental objectives into the various policies with a sectoral scope; g) Promoting environmental education and respect for environmental values and assets; h) Ensuring that the fiscal policy renders development compatible with the protection of the environment and the quality of life» Briefly, then, as far as the specific constitutional provisions are concerned, environmental law relates to the fundamental rights. II. THE COMPETENCE OF THE ADMINISTRATIVE JUDGE IN THE ENVIRONMENTAL FIELD 1) Do the environmental cases fall totally or partially within the competence of the administrative judge? Are the judiciary courts also competent? Are there specialized courts? As long as you figure an environmental case as a case derived directly or indirectly from a public act, it falls within the jurisdiction of the administrative judge. There are no specialized administrative courts. 2) What are the criteria of competences between administrative courts, judiciary courts and specialized courts? According to the Constitution of the Portuguese Republic, in addition to the Constitutional Court, there are the following categories of court:

6 a) The Supreme Court of Justice and the courts of law of first and second instance; b) The Supreme Administrative Court and the remaining administrative and tax courts; c) The Court of Auditors. 2. There may be maritime courts, arbitration tribunals and justices of the peace. The Supreme Court of Justice and the courts of law of first and second instance constitute what you call the judiciary courts. These courts of law are the general courts in civil and criminal matters and shall exercise jurisdiction in every area that is not allocated to other judicial orders. The administrative and tax courts have the competence to try contested actions and appeals whose object is to settle disputes arising from administrative and fiscal legal relations. 3) In cases of administrative courts competence, which is the competent court in the first instance? And on appeal? Under the Constitution of the Portuguese Republic, and according to the ETAF, without prejudice to the specific competence of the Constitutional Court, the Supreme Administrative Court is the senior organ in the hierarchy of administrative and tax courts. Under the Supreme Administrative Court there are two Administrative Courts of Appeal [Tribunais Centrais Administrativos (TCA)], and the administrative and tax courts, (courts of first instance) Therefore, the administrative jurisdiction organisation is very similar to that of the judiciary courts. In general terms, it belongs to the administrative courts to judge every dispute arising from administrative legal relations. And, as a rule, the parties may appeal to the Administrative Courts of Appeal. Exceptionally it is open to the parties a judicial review by the Supreme Administrative Court, since you are before a case of fundamental importance. Having said that, we should stress that there are still disputes which must be brought directly to the Supreme Administrative Court as a court of first instance.

7 It is the case of disputes related to administrative decisions taken by some specified very high entities as, inter alia, the President of the Republic, the President of the Assembly of the Republic (parliament) the Prime Minister and the Council of Ministers. III. THE PROCEEDINGS 1) Access to justice 1.1 Which are the admissibility criteria of the proceedings initiated by a natural person (infringement of a subjective right or an own interest, actio popularis,...)? 1.2 What are the admissibility criteria of the proceedings initiated by legal persons (in particular for associations, the NGO and public persons having competence in the environmental field)? Do presumptions of interest exist for prompting legal action? As a rule (v. article 9 CPTA), anyone that claims to be part of the disputed administrative legal relation has the right to lodge a file before the courts. Besides that, every natural person is entitled to introduce a case aiming at protecting some values like the environment, the urbanism and others. All the same, associations, the NGO, public persons having competence in the environmental field and the Public Prosecutors Office may prompt legal action. Even the local authorities (parishes, municipalities) may prompt legal action as far as the question concerns their respective geographical area. 2) The procedure 2.1 Is there a preliminary administrative appeal procedure (optional or mandatory)? According to the Constitution, citizens are guaranteed effective jurisdictional oversight of those of their rights and interests that are protected by law,

8 particularly including the recognition of the said rights and interests, the impugnation of any administrative act that harms their rights and interests, regardless of its form, the issue of positive decisions requiring the practice of administrative acts that are required by law, and the adoption of adequate provisional remedies. Citizens also have the right to challenge administrative norms which have external force and harm those of their rights or interests that are protected by law (art. 268). In accordance with the Constitution, the CPTA establishes that, even when there is an on-going administrative procedure, you can immediately attack any administrative act that harms your rights and interests without waiting for the end of the procedure where it was issued. In what concerns specifically the need of lodging firstly a preliminary administrative appeal procedure there is not yet a consensus. Anyway, there is almost always an optional administrative appeal. 2.2 Within what period after the enactment of the administrative decision does a legal action have to be taken? (common law time limits, specific time limits depending on the applicant,... )? Under the Portuguese legal system the consequences of the breach either of a principle or of a right depend upon their nature. You should consider that article 135 of our Administrative Procedure Code CPA (acronym of Código de Procedimento Administrativo, CPA Decree-Law no 442/91, of 15 de November) establishes a general rule of annulment. In circumstances of a very serious infringement the consequence may be the nullity, which is somewhat similar to the inexistence of the administrative act concerned (see, for instance, article 133 of the CPA). These two figures, annulment and nullity are particularly important to determine the time limit to lodge an action in court. The cases related to environmental questions belong very often to the following categories: i) The demand of the annulment of an administrative act; ii) The demand of a judicial declaration of the nullity of an administrative act;

9 iii) The demand of the declaration of the illegality of certain rules or of a certain plan as a whole; iv) Request of compensation for the damage suffered by the complainant. The demand of declaration of nullity or illegality is not bound by any time limit. The demand of compensation is also not bound by any procedural time limit, but has to respect the specific substantive limitation period time - usually three years article 498 of the Civil Code. The legal action of annulment has to be taken within three months after the enactment and notification of the administrative decision, unless the action is taken by the office of the public prosecutor a year. 2.3 Does the appeal have a suspensive effect? If not, are there any summary proceedings (suspension, provisional measures,... )? The preliminary administrative appeal - either obligatory or optional has a suspensive effect over the procedural time limit (article 59, 4, CPTA). Moreover, the preliminary administrative appeal, when mandatory, has a suspensive effect over the administrative decision. The pure legal action taken against any decision does not have any suspensive effect. However, there are summary proceedings (suspension, provisional measures) granted to the parties concerned. The CPTA provides for summary proceedings aiming, for instance, at the suspension of the effect of the administrative decision, or at a provisory judicial rule permitting the claimant to begin or to continue a certain activity (art. 112 CPTA). The lodging of a suspension s remedy has a suspensive effect, since the administrative authority receives the duplicate of the application (art. 128) CPTA). 2.4 Are there any other specific procedural rules in the environmental field?

10 We should perhaps underline that the parties interested in the declaration of the illegality of environmental regulations, may, particularly if these regulations have an immediate effect and do not require any further administrative act, demand their suspension confined to their own case (art. 130º, CPTA). 3) The powers of the judge 3.1 What are the powers of the judge responsible for the investigations/during the preparation stage (assessment, amicus curiae, on-the-spot investigation, communication of data by the State or the economic operators,... )? The judge administrative can dispose of all the tools he evaluates as necessary in order to accomplish his task. We have to see the administrative judge the same way as we see the criminal or the civil judge. Therefore it is to the judge to decide over the hearing of witnesses or experts, the presentation of data, the visit to the sites. Of course, every investigation can not infringe some rules, you can not obtain or use evidence obtained illegally. The administrative jurisdiction is a full jurisdiction as the civil jurisdiction is. Actually, we should say that the administrative jurisdiction goes a little further. See, for instance, that in actions for annulment the court may identify any cause of invalidity other than the ones raised by the claimant. In this circumstance, the litigants shall be heard before decision (article 95, CPTA). 3.2 Is the legal control limited to the control of the regularity of the procedure? Does his/her control cover the substance of the decision? 3.3 Is the control exerted by the administrative judge a control of rights? Is it also a control of appropriateness? We should say that according to the CPTA the administrative courts judge exclusively the compliance of rules, legal provisions and principles by the

11 Administration; they do decide on matters of suitability or appropriateness (article 3). The administrative courts hear the cases within a large framework of means of control. They can decide over the respect of the procedure but also over the substance of the matter. The restrictions they are submitted of are the ones inherent to their capacity and means of inquiry. Even matters that in the past were considered of pure appropriateness are now included in the so called bloc of legality. That s the case, for instance, of the inquiry over the breach of the principles of proportionality, equality and justice. Very often arise, in environmental cases, the allegation of the breach of these principles. And the courts have to decide whether these principles were really infringed. 3.4 Which is the degree of judicial review? Behind the question we could feel the idea that the judge only decides whether an administrative decision, an administrative act, is legal. And that is not true. The CPTA provides in its article 2: «1. The principle of effective court protection includes the right to obtain a final and binding court decision with regard to each claim properly made in court within a reasonable time, together with the option of enforcing the same and obtain both provisional measures anticipatory or protective, to ensure the effectiveness of decision. 2 Every legal right or interest shall be afforded adequate protection from the administrative courts, particularly for effect of obtaining: a) Recognition of subjective legal situations directly due to legal and administrative regulations or legal acts committed pursuant administrative law provisions; b) Recognition of the ownership of qualities or fulfilment of conditions; c) Recognition of the right to abstain from behaviours and particular to refrain from issuing administrative acts, where there is a threat of future injury; d) The annulment or declaration of nullity or inexistence of administrative acts;

12 e) The condemnation of the Administration to pay sums, to deliver things or to practice facts; f) Orders for the Administration to provide natural restitution of damages and to pay compensation; g) Resolution of disputes concerning the interpretation, validity or execution of contracts whose appreciation belongs to the scope of the administrative jurisdiction; h) The declaration of illegality of rules issued under provisions of administrative law; i) The condemnation of the Administration to practice administrative acts legally due; j) The condemnation of the Administration to carry out the necessary acts or operations for the restoration of subjective legal situations; l) The subpoena of the Administration to provide information, allow the access to documents or pass certificates; m) The adoption of appropriate precautionary measures to ensure the effectiveness of the decision.» Having to judge these so different kinds of cases the court will apply different tools. Obviously, as we have just said, the court does not judge matters of appropriateness. Then, the degree of the judicial review depends more on the kind of case that is brought to the judge, than on any inherent limitation. The parties are not restricted to ask for the annulment of an administrative decision. They may ask and the judge has to rule the litigious situation. And that is why, for instance, the CPTA provides that even in those circumstances where the Administration has not replied to the application submitted to it, the court does not simply return the matter to the competent administrative body, annulling or declaring void or missing the eventual act of rejection, instead it decides on the material claim concerned, imposing the practice of the act legally due (article 71).

13 To summarize, we can say that also in this matter the administrative judge is now parallel to the judiciary judge. 3.5 What are the measures that the judge can decide? - May the judge cancel only the decision or may he also alter the decision? - Does he have a power of sanction? Can he use it on his own initiative or only if requested by one of the parties? - Can he award damages? How does he calculate the quantum of the damages? - May he order restoration? Is it an obligation for him to order it or is it only a possibility? What form can the restoration take (physical compensation, financial compensation,... )? As to the previous question about the degree of judicial review, the same can be said here. The measures the court can apply are those necessary to the fulfilment of its duty of decision. Every remedy has its specific measures. We exemplified that the CPTA provides that even in those circumstances where the Administration has not replied to the application submitted to it, the court does not simply return the matter to the competent administrative body, annulling or declaring void or missing the eventual act of rejection, instead it decides on the material claim concerned, imposing the practice of the act legally due. Obviously, where the issue of the act involves the formulation of valuations inherent in the exercise of the administrative function and it is not possible to identify one and only solution to the specific case, the court can not determine the content of the act to practice, but must make explicit the binding legal aspects to be followed by the Administration (article 71). And when this is considered justified, the court may impose, ex officio, that is, on its own motion, a compulsory sanction designed to prevent any failure of execution (art. 66; see, also, below). Orders for the Administration to provide natural restitution of damages and to pay compensation do not raise any specific problems.

14 The judge shall decide according to the circumstances of the case and the legal provisions generally applicable. The judge may calculate the compensation in equity. IV. THE ENFORCEMENT OF THE COURT DECISION 1) Are there any specific mechanisms for the execution of judicial decisions (power of injunction, periodic penalty payments, other measures of coercion against the administration or the economic operators)? 2) What are the courses of legal action available against such decision? Are they appeal of common law? The CPTA contains an entire Title (VIII) and four chapters, dealing with the question of the execution of the judgements. We should underline that the CPTA reiterates (article 156) the constitutional provision (article 205) that court decisions are binding on all public and private entities and prevail over the decisions of any other authorities. The CPTA contains a very large amount of measures aiming at the strict compliance with the administrative courts judgements. The prevalence of court decisions on administrative authorities implies the invalidity of any administrative act disregarding the court decisions and does incur their authors in civil, criminal and disciplinary liability (article 158). We should point out that the court may act on behalf of the administrative authority where the latter has acted within the framework of circumscribed powers. When the matter involves re-establishing a prior situation or eliminating a situation brought about as a result of a quashed act and where some of the substantive information required to settle the case is missing, the court may ask the administrative authority to supply this information and submit a proposed settlement, stating reasons, within a period of 20 days. The court will then hear the other parties to the case and will issue a ruling (articles 166, 167). Where the quashing of an administrative act entails a fresh decision being adopted in respect of which the administrative authority enjoys a degree of discretion, the court imposes a deadline by which the authority must adopt the

15 decision and stipulates the criteria which must be borne in mind. Once the stipulated time period has elapsed, if the authority has failed to act, the applicant may ask the court to issue a fresh decision, which this time will have the same effects as those of the action the authority has failed to take. This is the case, for example, where an administrative authority is refusing to re-hire a civil servant who has been unlawfully laid off (article 179). In all cases, it is up to the court to clarify how its rulings are to be enforced by stipulating the measures required to enforce them, specifying the administrative body or bodies responsible for following up the ruling, and setting a reasonable deadline for enforcement. If the purpose of enforcing a ruling is to obtain payment of a sum of money, the court stipulates a period of 30 days. Where the ruling remains unenforced, the procedure runs its course and a lump sum becomes payable (article 178). Finally, an individual may also ask the court to set compensation in respect of civil liability where a ruling unlawfully remains unenforced. The administrative courts can, of their own motion, set a deadline by which the administrative authority must comply with the judicial ruling and, where appropriate, may sentence it to pay a fine calculated per day of delay. The fine will be paid by the civil servants directly responsible for the failure to enforce the judicial ruling, ranging from 5 to 10% of the national rninimum wage. If the body responsible for enforcing the judicial ruling is a collegial body, only the members of that body who voted against enforcement will be required to pay the fine. The fine will come to an end when the judicial ruling has been fully enforced. The court settles the fine every three months or at the request of the applicant. The amounts due to the applicant are cumulative, whether via compensation or fine. But if the amount of the fine exceeds the amount of compensation, it is then revenue for the High Council of Adrninistrative and Tax Courts (article 169). The execution of judgments of administrative courts runs in the administrative courts even when the judgements condemn private entities. However, in the latter cases the proceedings as submitted to the provisions of the civil procedure law.

16 The remedies open against the judgments concerning the very enforcement of the courts rulings do not follow any specific rule; and they also run in the administrative jurisdiction.

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