TRIBUNAL CONSTITUCIONAL Portugal

Ruling no. 539/2024

Headnotes

The power to “represent the State” which is granted to the Public Prosecution Service by Article 219 of the Portuguese Constitution means that representation of the State by the Public Prosecution Service in administrative litigation when an action is brought against the State cannot be a “mere possibility”.

Summary

Ruling no. 539/2024 deemed unconstitutional, with general binding force, the provision resulting from Articles 11(1) and 25(4) of the Code of Procedure in Administrative Courts (approved by Law no. 15/2002, of 22 February, in the wording of Law no. 118/2019, of 17 September), according to which, in administrative courts, whenever there is a complaint filed against the State or against several ministries in the same legal proceedings, the State being represented by the Public Prosecution Office is a possibility, in which case the State shall be summoned by means of a letter addressed to the State’s Centre of Legal Affairs (Centro de Competências Jurídicas), which ensures its transmission to the competent services and coordinates the State’s intervention in Court.

The Court considered that by accepting as a “mere possibility” the representation of the State by the Public Prosecution Service in administrative litigation when an action is brought against the State, since the summons is “addressed only to the State’s Centre of Legal Affairs, which ensures its transmission to the competent services and coordinates the terms of their intervention in court”, the law does not protect, at least with a necessary minimum of clarity, the power to “represent the State” which is granted to the Public Prosecution Service by Article 219 of the Constitution.

According to the first part of Article 219(1) of the Constitution, the Public Prosecution Service “is responsible for representing the State”. The Constitutional Court deemed that that provision is not compatible with the State being represented by the Public Prosecution Service in a court of law only if requested to do so by the Government – since the State’s Centre of Legal Affairs, according to Decree-Law no. 149/2017, of 6 December, does not have the power to do so.

As highlighted in Ruling no. 539/2024, by establishing that representation of the State in court by the Public Prosecution Service is a mere possibility, with the summons being addressed only to the State’s Centre of Legal Affairs, the solution being discussed unequivocally gives the State the discretionary power to choose to be represented or to not be represented by the Public Prosecution Service in court – such power being exercised by sending the summons to the competent Public Prosecutor. The State does so without ensuring that the Public Prosecution Service is an intervenor in cases where the interests at stake are interests that the Public Prosecution Service is supposed to defend, without establishing any requirements, however minimal, for deciding to appoint a different lawyer to represent it, and without establishing any special requirements in terms of justification. The Executive was thus granted a broad margin to determine, according to criteria of timeliness or convenience, if the main intervention by the Public Prosecution Service, in cases in which the State is a party and in which its financial interests are at stake, will even take place. From this point of view, it is clear that the law does not include any weighing from which one might conclude that the legislator intended to allow this responsibility to be taken from the Public Prosecution Service only in justified cases. On the contrary, what the law assumes is that the Public Prosecution Service is no longer, as a rule, competent to represent the State in court. The probability of performing this task is now similar to that of any professional competent to represent a party in court. In that sense, the norm under analysis allows the only result which is actually forbidden by the first part of Article 219(1) of the Constitution and which is the following, in the wording of Opinion no. 8/82: “the legislator cannot wholly deprive the Public Prosecution Service of the task of representing the State in court, entrusting it entirely to other entities”.

Language:

Portuguese