13. Recognition of Foreign Administrative Acts in Portugal

The English versions of Portuguese law and authors are unofficial translations from the rapporteur.

Code adopted by Decree-Law no. 442/91, 15 November (rectified by Declarations no. 265/91, 31 December and 22-A/92, 29 February), and modified by Decrees-Law no. 6/96, 31 January and no. 18/2008, 29 January. Recently a new Code of Administrative Procedure (New CPA) was adopted (Decree-Law no. 4/2015, 7 January), that will enter into force 3 months after its publication. Since the lastest substantial revision to this article was performed in January, we will on focus both legal regimes.

Adopted by Law no. 15/2002, 22 February (Rectified by Declaration no. 17/2002, 6 April) and modified by Laws no. 4-A/2003, 19 February; 59/2008, 11 September and 63/2011, 14 December.

For instance in what concerns major land parcelling decisions (article 7 and 22 of Decree-Law no. 555/99, 16 December), and Environmental Impact Assessment Decisions (Article 39 of Decree Law no. 151-B/2013, 31 October). A public hearing can also be held whenever the number of interested parties is so high that a previous hearing would be impractical (Article 103 (1c) of the CPA; Article 124 (1d) of the New CPA).

The jurisprudence of the Portuguese Supreme Administrative Court still seems to adopt a restrained view on the judicial revision of executive acts since the invalidity of executive acts is appraised only in case of a deviation from an abstract normal procedure of execution [Decision of 11 October 2007, case n.º 0478/07, accessible from www.​dgsi.​pt]. This has been nevertheless a considerable improvement from the days where execution was not reviewable, because it was logically and necessarily comprehended in the previous act (the one that defined the legal situation). See Decision of the Supreme Court of Justice from 25 January 1984, in Revista de Legislação e Jurisprudência, 1984–1985, n.º 3727, pp. 302 ff.

Recently, the New CPA has generously recognized the possibility of judicial review of enforcing acts (Article 182).

A specific legal diploma will, according to Article 8 (2) of Decree-Law no. 4/2015, 7 January, define the terms according to which the Portuguese Administration can directly enforce administrative acts.

Law no. 41/2013, 26 June. For instance, according to the Decision of the Coimbra Appeals Court of 17 January 2006 (proc. 3824/05), accessible from www.​dgsi.​pt, a defendant resident abroad should be served according to the rules defined in international instruments applicable. If inexistent, service can be made by post, by rogatory letter or by public announcements.

See Council Regulation (EC) No 1348/2000 of 29 May 2000, Article 20 of Law no 144/99, 31 August; Article 92 of the Criminal Procedure Code; Article 133 and 134 of the CPC.

Accessible from http://​www.​provedorjus.​pt/​site/​public/​archive/​doc/​Rec_​_​2B2013.​pdf.

For instance, the Law of Hunting (Law no. 173/99, 21 September) exempts strangers not resident in Portugal from obtaining a hunting permit as long as they have a title to hunt in their country of nationality or residence. However, a special permit should be delivered under condition of reciprocity (Article 22). Also in the Portuguese Law on Cultural Goods (Law 107/2001, 8 September) a special judicial action for restitution of illegally foreign imported goods was introduced, although it is only applicable to non-EU member States under the condition of reciprocity (Article 69).

The examples are various (as conversely happens in EU Law): in the shares market, regarding the approval of the prospect of public offers of acquisition (Articles 146 to 147-A of Decree-Law no 486/99, 13 November), in the credit institutions and insurances arena (Article 44 ff. of Decree-Law no 298/92, 31 December, and Article 10 of Decree-Law no 94-B/98, 17 Abril), in the migration realm, regarding return decisions from another Member State (Article 169 of Law no 23/2007, 4 July), in the driving permits field (Article 125 of Decree-Law no 114/94, 3 May), etc.

In terms of recognition a model based on mutual recognition of diplomas was introduced under the influence of EU Law (Decree-Law no 341/2007, 12 October), but a specific recognition regime still exist conferring competence to universities for the decision to give or deny a request of equivalence (Decree-Law no 283/83, 21 June) (Otero 2007, p. 499; Roque 2014b, pp. 1206–1209).

It is interesting to remark that the preamble of Decree-Law 4/2015, 7 January, that adopts the New CPA explicitly refers the paradigm of the CPC: the exercise of responsibility between citizens and the Administration.

Lima Pinheiro considers that the procedure of revision of foreign court decisions is applicable (in Judicial Courts, so it seems) in the case of administrative decisions in the private law area (Pinheiro 2012, p. 547 ff.). In a recent case, the Supreme Court of Justice in 25 of June 2013 (case no. 623/12.5YRLSB.S1), considered that the decision of a foreign administrative authority – a notarial act – over private rights (in casu, the conversion of a separation in divorce in Brazil included in a public deed) should be considered as included under the scope of the internal recognition procedure for judicial decisions.

See, however, the Decision of the Supreme Court of Justice of 22 May 2013, case 134/12.9YFLSB (Decisions accessible from www.​dgsi.​pt). In this case it was refused that an administrative act as such has the same strength of a reviewed and confirmed foreign judicial decision and it was remarked that no administrative decision may impose itself in the legal order of another State due to the territoriality principle (although it might be taken into consideration). The Court went on to say that the decision could not be subject to the confirmation and revision procedure because it didn’t regulate private legal positions.

There is a wide diversity of extraterritorial effects of administrative acts, since, depending on each case, evidentiary or incidental effects; constitutive effects or requests for enforcement (or forcible execution) might be at stake.

See COM(2010) 747 final and COM(2013) 228 final. Also the Court of Justice has recognised that public documents produced in one Member State shouldn’t be disputed in another Member State unless there would be concrete indicators that were able to raise doubts about its accuracy (see Decision of 2 December 1997, in case C-336/94 Eftalia Dafeki/Landesversicherungsanstalt).

Also defending the inapplicability of such acts, in case of grave vices, that generate nullity (Antunes 2013, p. 160).

Even in these cases the test applied would be according to Miguel Prata Roque, the moderate substantial equivalence: the refusal to recognize an act is legitimate only if the administrative act violates manifestly the European constitutionality/illegality bloc (Roque 2011a, p. 606).

State that is however included in a (sterner or looser) web of legal interdependencies at an international and global level, which also influences the concept (or concepts) of public policy.

Miguel Prata Roque considers that in the present stage, the application of a foreign administrative rule by national courts is limited to two fundamental requirements (i) the application of the foreign administrative rule cannot affect the whole exercise of sovereignty from the Forum State; (ii) The administrative rule to be applied should not intend, exclusively, the protection of public interests of the State of origin (or his citizens) in relation to foreign interests (Roque 2011b, p. 153). Colaço Antunes also defends that, despite the fact that duplication of control isn’t desirable, whenever there is a violation of primary public interests, that might implicate the national control and inapplicability of transnational acts (Antunes 2013, pp. 163–164).

As an example, the Portuguese Courts were called to adjudicate a situation involving confiscatory measures in Cuba and its effects in property detained in Portugal (in relation to the trademark H. Upmann of the firm Menendez, García y Compañia). However, the judicial decision (Decision of 6 June 1989, case 076578, Boletim do Ministério da Justiça, 388, p. 537) was not as interesting as the legal opinions delivered in the case, which considered the conformity of such a measure with constitutional law, public international law, private international law and also the general public policy clause. João Baptista Machado and Rui Manuel Moura Ramos, considered that the principle of inapplicability of political foreign laws conduces to the fact that executive support or “legal enforcement” should be refused to them, not allowing them to constitute, modify or terminate new legal situations that violate the expectations protected by private international law. These authors consider that the international public policy is not applicable because the foreign law is not called upon the conflict of law rules, but continue to uphold that the public policy of the Portuguese Constitution of 1933 would have opposed such confiscatory measure (Machado 1985, p. 11 ff.), José de Oliveira Ascensão, considers that the confiscatory act cannot be effective towards property situated in Portugal in two senses: because the Cuban rules are not applicable (they refer themselves to an object that is in another State borders) and also because it infringes the Portuguese public policy (Ascensão 1986, p. 15 ff.).

That implements Council Framework Decision 2005/214/JHA of 24 February 2005.

As does fraud, mostly according to European Union Law (see Decision of 23 September 2003, in case C-109/01, Akrich; Decision of 25 July 2008, in case C-127/08, Metock; Decision of 26 June 2008, in joined cases C-329/06 and C-343/06, Wiedemann; Decision of 2 March 2010, in case C-135/08, Rottman).

Double functionality of the internal rules of competence seems to be the preferred criterion to fill in this gap (Silva 2010a, p. 12; Roque 2013, p. 173).

Ferrer Correia considers that a State should only demand that a judicial decision respects the exclusive competence of the recognising State. Beyond this criteria only exorbitant competences (the ones that are not based in a sufficient link between the State jurisdiction and the dispute) can be used to refuse recognition (Correia 2000, p. 479; Roque 2014b, pp. 1170–1175).

This is not, however, undisputed. Paulo Otero considers that the control of competence is relevant as a requisite of validity and recognition of the act according to the foreign administrative laws (Otero 2007, p. 503). Lima Pinheiro, criticizes the lack of compete control, defending that foreign authorities should be considered to be competent if the title for their competence is similar or equivalent to the competence of Portuguese judicial authorities and there is no exclusive competence of the Portuguese authorities (Pinheiro 2012, p. 553).

A listing is available at the official site of the Portuguese Documentation and Comparative Law Cabinet, an organ of the Portuguese General Attorney (http://​www.​gddc.​pt).

There is also more literature on extraterritoriality and recognition not only in the commercial and competition areas, but mainly in the realm of criminal and taxation law.

The author defines and exemplifies the notion (mostly in the migration field) and notices that transnational acts although based, direct or indirectly on European Union Law, continue to be State administrative acts and not supranational forms of action, which still showcases the continuous importance of States in the administrative sphere.

The author exposes several types of transnational acts and their link to mutual recognition, focusing also in the interconnections between several types and levels of administration.

The author prefers the terminology transterritorial acts in order to avoid the traditional State stigma and deepens the dogmatic behind them.

In this book, the author approaches systematically this new form of administrative action, giving indications for its legal development.