Legal alert no. 105
Regime of the resolution of jurisdiction conflicts between judicial courts and administrative and tax courts, regulating the composition, competence, operation and process before the Courts of Resolution of Jurisdiction Conflicts
On the past September 4th, it was published, in the Portuguese Official Gazette, Law no. 91/2019, which foresees the regime of the resolution of jurisdiction conflicts between judicial courts and administrative and tax courts, regulating the composition, competence, operation and process before the Courts of Resolution of Jurisdiction Conflicts.
Pursuant to the above-referred law, the Courts of Resolution of Jurisdiction Conflicts are competent to decide over (i) requests of resolution of jurisdiction conflicts, (ii) prejudicial queries regarding jurisdiction subjects and (iii) appeals in which the Court of Appeal has determined the judicial court to be incompetent, having ruled that the claim must be litigated and decided in the scope of the administrative and tax jurisdiction.
In this context, in order for the Courts of Resolution of Jurisdiction Conflicts decide over requests of resolution of judicial conflicts, it is required that two or more courts, integrated in different jurisdictions, claim or deny the power to decide over the respective legal matter, providing that the referred legal matter may be subject to ordinary appeal. On the other hand, the request of resolution of judicial conflicts may be required as per follows: (i) by the court itself, upon the arising of the judicial conflict, (ii) by any of the parties or (iii) by the Public Prosecution.
Once the process is provided to the reporting judge, and as long as he does not decide that the request is manifestly unjustified or that the legal matter is simple, it is draft a project of the decision, in 15 days, by the referred judge; afterwards, the process is registered in a judicial chart.
In turn, on the day of the trial, the reporting judge briefly presents the project of the decision, which, afterward, is voted by the remaining judges of the Court of Resolution of Jurisdiction Conflicts. In this regard, it shall be noted that the presence of, at least, two judges, one from the Supreme Court of Justice and other from the Administrative Supreme Court is required for the trial of the conflict.
Finally, the decision is taken by the majority of the judges (being the respective discussion managed by the chairman which has casting vote, if a majority cannot be formed) and shall specify the relevant competent court.
On the other hand, and in what regards to prejudicial queries concerning jurisdiction conflicts, if the relevant court or the respective parties have justified doubts regarding the competent jurisdiction, during any lawsuit, procedural issue, injunction or appeal, they may submit those to the appreciation of the Court of Resolution of Jurisdiction Conflicts, providing that the referred doubts do not arise in the scope of an urgent process.
In this regard, it shall be noted that the decision of the Court of Resolution of Jurisdiction Conflicts binds the court which raised the jurisdiction queries, as well as other courts which may intervene in the litigation. However, this decision does not bind the Court of Resolution of Jurisdiction Conflicts regarding to new rulings which it may be issued in future over the same query, concerning new lawsuits.
Finally, Law no. 91/2019, dated from September 4th, revokes the following laws:
i. Decree-Law no. 23185, dated from October 30th of 1933;
ii. Decree-Law no. 28105, dated from October 22nd of 1937;
iii. Decree-Law no. 30317, dated from March 15th of 1940;
iv. Decree-Law no. 31571, dated from October 14th of 1941;
v. Decree-Law no. 31663, dated from November 22nd of 1941;
vi. Decree-Law no. 36395, dated from July 4th of 1947;
vii. Decree-Law no. 38517, dated from November 20th of 1951;
viii. Decree-Law no. 39604, dated from April 9th of 1954;
ix. Decree-Law no. 39874, dated from October 28th of 1954;
x. Decree-Law no. 18017, dated from February 28th of 1930;
xi. Decree-Law no. 19242, dated from January 16th of 1931; and
xii. Decree-Law no. 19438, dated from March 11th of 1931.
Law no. 91/2019, dated from September 4th, is only applicable to (i) requests of resolution of judicial conflicts raised after the referred law enters into force and (ii) appeals to the Court of Resolution of Jurisdiction Conflicts of decisions ruled after Law no. 91/2019, dated from September 4th, has entered into force.
This Law enters into force on October 4th of 2019.
To access the complete text of Decree-Law no. 128/2019, of August 29th, please click here.