Legal Research in Portugal: A Guide

 

By Tiago Fidalgo de Freitas

 

Tiago Fidalgo de Freitas holds a licenciatura law degree, magna cum laude, from the University of Lisbon School of Law (2004); the Diploma of the Academy of European Public Law (2005); and an LL.M. from New York University School of Law (2007), where he was a Hauser Global Scholar. A lawyer at Sérvulo Correia & Associados – the leading Portuguese law firm in Public Law – and a member of the Portuguese bar association, Tiago Fidalgo de Freitas has published and has forthcoming articles in constitutional law and European Union law and has participated in national and international conferences as a guest speaker.

 

Published June/July 2007

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Table of contents

  1. The Constitution of the Portuguese Republic of 1976

1.1.      Introductory remarks

1.2.     The Form of Government

1.3.     The regional autonomies

1.4.     Municipal government

  1. Legislation

2.1.     Types of laws

2.2.     Most relevant legal codes            

  1. Case-law

3.1.     The Constitutional Court

3.2.     The civil jurisdictional order

3.3.     The administrative and tax jurisdictional order

3.4.     The Audit Court

  1. Law schools and legal scholarship

4.1.     Law schools

4.2.     Law reviews

4.3.     Major publishers

4.4.     Treatises and textbooks by subject

A)   Introductory books to (Portuguese) law

B)    History of (Portuguese) law

C)    Public law

D)    Private law

 

1. The Constitution of the Portuguese Republic of 1976

1.1 Introductory remarks

The Constitution of the Portuguese Republic of 1976 was approved after the revolution of the 25th April 1974. This revolution put an end to the authoritarian dictatorship of the Estado Novo, which had risen with the approval of the Constitution of 1933. It has undergone seven amendments in 1982, 1989, 1992, 1997, 2004, and 2005. With 296 articles, it is one of the longest Constitutions in the World. It is the sixth Constitution in the Portuguese history and the third Republican one.

 

The 1976 Constitution establishes a democratic republican form of government under the rule of law and a comprehensive system of fundamental rights and freedoms. Initially very strongly socialist-oriented, later amendments to the Constitution made it more liberal. The Portuguese Constitution is further open to international law and committed to the European Union objectives.

1.2 The Form of Government

The President of the Republic, the Assembly of the Republic, the Government and the Courts are the bodies which exercise sovereign power. The fashion the Constitution shapes the inter-relations among these bodies results in a semi-presidential regime.

 

The President of the Republic shall represent the Portuguese Republic, shall guarantee national independence, the unity of the state and the proper functioning of the democratic institutions, and shall be ex officio Commander-in-Chief of the Armed Forces. The President of the Republic is elected for five years by the universal, direct, secret suffrage of all Portuguese citizens. Its competences are essentially political.

 

The Assembly of the Republic has a minimum of one hundred and eighty and a maximum of two hundred and thirty Members (its present composition) and represents all Portuguese citizens. Members are elected for plurinominal constituencies geographically defined by law in proportion to the number of citizens registered to vote therein. Each legislature lasts for four legislative sessions. All the discussions held in the Assembly are available in the Diário da Assembleia da República. The Assembly of the Republic has political, legislative and oversight competences, as well as the competence to amend the Constitution.

 

The Government is the body which conducts the country’s general policy and the supreme authority in the Public Administration. It is composed of the Prime Minister, Ministers and Secretaries and Under Secretaries of State. The President of the Republic appoints the Prime Minister after consulting the parties with seats in Assembly of the Republic and in the light of the electoral results for such Assembly. The remaining members of the Government are appointed by the President of the Republic upon a proposal from the Prime Minister. The Prime Minister is therefore responsible to the President of the Republic and, within the ambit of the Government’s political responsibility, to the Assembly of the Republic. The Government has broad political, legislative and administrative competences.

1.3 The Regional Autonomies

Although Portugal is a unitary State, the Azores and Madeira archipelagos are autonomous regions with their own Political and Administrative Statutes and self-government institutions.

 

For each of the autonomous regions there shall be a Representative of the Republic. As self-government institutions, each Autonomous Regions has a Legislative Assembly and a Regional Government. The Legislative Assembly of Azores and the Legislative Assembly of Madeira are elected by universal, direct and secret suffrage in accordance with the principle of proportional representation. They have legislative and administrative competences. The Regional Government of Azores and the Regional Government of Madeira are politically responsible to the Legislative Assembly, and the Representative of the Republic shall appoint its President in the light of the results of the regional elections. It only has administrative competences.

1.4. Municipal government

On the mainland, local authorities shall comprise parishes, municipalities and administrative regions (which, however, have not been institutionalized yet), whereas within the Autonomous Regions of Azores and Madeira it shall only comprise parishes and municipalities.

 

Parishes’ bodies are the Parish Assembly (its decision-making body, which is elected by universal, direct and secret suffrage of the citizens who are registered to vote in the area of the local authority in question, in accordance with the proportional representation system) and the Parish Authority (its collegiate executive body). The latter is answerable to the former.

 

Municipalities’ bodies are the Municipal Assembly (its decision-making body, which is composed of directly elected members and the presidents of the municipality’s parish authorities) and the Municipal Authority (its collegiate executive body).

 

2. Legislation

2.1 Types of laws

Legislation comprises leis (laws), decretos-leis (decree-laws) and decretos legislativos regionais (regional decree-laws). Leis are approved by the Assembly of the Republic, decretos-leis are approved by the Government and decretos legislativos regionais are approved by the Legislative Assemblies of the Autonomous Regions of Azores and Madeira.

 

The Assembly of the Republic has three types of legislative competences: (i) exclusive competence, (ii) partial exclusive competence, (iii) and shared competence. Over the areas included in its (i) exclusive competence, only the Assembly of the Republic can validly legislate. Over the subject areas included in its (ii) partial exclusive competence, it can legislate, but it can also delegate the task to the Government by means of a law of legislative authorization; the Government then approves a decreto-lei, within, which must respect the object, purpose, the extent and the duration of the authorization. Apart from these exclusive competences, the Assembly of the Republic is entrusted with (iii) the power to legislate on all matters, except for those which are the exclusive responsibility of the Government.

 

The Government has four types of legislative competences: (i) exclusive competences; (ii) delegated competences; (iii) development competences, and (iv) shared competences. To begin with, the Government has (i) exclusive competence over matters that concern its own organization and proceedings. Additionally, when the Assembly of the Republic has enacted a law of legislative authorization and within its limits, (ii) the Government may legislate in such subject area. The Government may also (iii) develop the basic principles set out by parliamentary laws, as long as they are not within the exclusive competence of the Assembly of the Republic. Lastly, the Government can (iv) legislate over all matters that are not within the exclusive responsibility of the Assembly of the Republic; this competence gives the Government the widest range of legislative competences over Western democracies.

 

Both leis and decretos-leis possess equal force, being mutually revocable. However, some laws possess superior force due to its character (e.g., organizational laws or laws which are compulsory legal prerequisites for other laws or which must be obeyed by other laws) or reinforce approval procedure (e.g., required qualified majorities).

 

The Legislative Assemblies of the Autonomous Regions have several types of legislative powers too. All decretos legislativos regionais share, nonetheless, some common characteristics: they must have a regional scope and address such matters set out in the Political and Administrative Statute of the Autonomous Region in question which are not of the exclusive competence of the bodies that exercise sovereign power. In the absence of specific regional legislation on a matter which is not the exclusive responsibility of bodies that exercise sovereign power, the current provisions of the law of the Republic are to be applied to the autonomous regions.

 

All leis, decretos-leis and decretos legislativos regionais must be published in the official journal: Diário da República.

2.2 Most important codes of laws

 

 

3. Case-law

3.1 Constitutional court

The Tribunal Constitucional (Constitutional Court) is the court entrusted with specific responsibility for administering justice in matters of a legal and constitutional nature. The Constitutional Court is composed of thirteen judges, ten of whom are appointed by the Assembly of the Republic and three co-opted by those ten for a single mandate of nine years. Six of the judges who are appointed by the Assembly of the Republic or are co-opted shall obligatorily be chosen from among the judges of the remaining courts, and the others from among jurists.

 

Among other competences, the Constitutional Court performs ex ante and a posteriori abstract and concrete judicial review of legislation. The case law of the Constitutional Court is available here.

3.2 The civil jurisdictional order

The Supremo Tribunal de Justiça (Supreme Court of Justice) and the Tribunais da Relação (second instance courts) and the Tribunais de Primeira Instância (courts of law of first instance) compose the civil jurisdictional order. There are five second instance courts, divided according to the geographical area they cover; they are: the Tribunal da Relação de Lisboa, the Tribunal da Relação do Porto, the Tribunal da Relação de Coimbra, the Tribunal da Relação de Évora, and the Tribunal da Relação de Guimarães.

 

Within the civil jurisdictional order, the Supreme Court of Justice is the senior body in the hierarchy of courts of law.

 

The courts of law are the general courts in civil and criminal matters and have jurisdiction over every area that is not allocated to other judicial bodies. Certain courts of first instance possess specific responsibilities or are specialized in the trial of certain matters.

 

The case-law of the Supremo Tribunal de Justiça is available for search here. The case-law of the Tribunais da Relação can be found here: Lisboa, Porto, Coimbra, Évora, Guimarães.

3.3 The administrative and tax jurisdictional order

The administrative and tax courts try suits and appeals, the purpose of which is to settle disputes arising from administrative and fiscal legal relations.

 

The Supremo Tribunal Administrativo (Supreme Administrative Court), the Tribunais Centrais Administrativos (second instance administrative and tax courts) and the Tribunais Administrativos e Fiscais (first instance administrative and tax courts) compose the administrative and tax jurisdictional order. There are two second instance administrative and tax courts, also divided according to the geographical area they cover; they are: the Tribunal Central Administrativo Sul and the Tribunal Central Administrativo Norte.

 

Within the administrative and tax jurisdictional order, the Supreme Administrative Court is the senior body in the hierarchy of administrative and tax courts.

 

The case-law of the Supremo Tribunal Administrativo can be found here. The case-law of the Tribunais Centrais Administrativos is available for search here: Sul, Norte.

3.4 The audit court

The Audit Court is the senior body with authority to scrutinize the legality of public expenditure and judge such accounts as the law may require to be submitted to it. Its case-law can be found here.

 

4. Law schools and legal scholarship

4.1 Law schools

 

4.2 Law reviews

General reviews:

 

Specialised reviews in Portuguese and European constitutional and administrative law:

 

Specialized reviews in tax law:

 

Specialized reviews in criminal law:

 

Specialized reviews in private law:

 

Other law reviews:

4.3 Major publishers

 

4.4 Treatises and textbooks by subject

The following selection comprises only the most influential treatises and textbooks among Portuguese scholars. It is not therefore an exhaustive compilation of all the existing volumes. The books are grouped by subject areas. All masters and doctoral dissertations have been excluded. Only books globally up-to-date with legislation in force have been referred.

A) Introductory books to (Portuguese) law

B) History of (Portuguese) law

 

                 

C) Public law

(i)        Constitutional law

·       Amaral, Maria Lúcia – A forma da República. Uma introdução ao estudo do direito constitucional, Coimbra: Coimbra Ed., 2005.

·       Canotilho, José Joaquim Gomes – Direito constitucional e teoria da Constituição7, Coimbra: Almedina, 2003

·       Canotilho, José Joaquim Gomes / Moreira, Vital – Fundamentos da Constituição, Coimbra: Coimbra Ed., 1991; Constituição da República Portuguesa anotada3, Coimbra: Coimbra Ed., 1993; Constituição da República Portuguesa anotada, I4, Coimbra: Coimbra Ed., 2007.

·       Miranda, Jorge – Manual de direito constitucional, I7, Coimbra: Coimbra Ed., 2003; Manual de direito constitucional, II5, Coimbra: Coimbra Ed., 2003; Manual de direito constitucional, III5, Coimbra: Coimbra Ed., 2004; Manual de direito constitucional, V3, Coimbra: Coimbra Ed., 2004; Manual de direito constitucional, VI2, Coimbra: Coimbra Ed., 2005.

·       Miranda, Jorge / Medeiros, Rui – Constituição Portuguesa anotada, I, Coimbra: Coimbra Ed., 2005; Constituição Portuguesa anotada, II, Coimbra: Coimbra Ed., 2006.

·       Morais, Carlos Blanco de – Justiça constitucional, I2, Coimbra: Coimbra Ed., 2006; Justiça constitucional, II, Coimbra: Coimbra Ed., 2005.

·       Novais, Jorge Reis – Os princípios constitucionais estruturantes da República Portuguesa, Coimbra: Coimbra Ed., 2004.

·       Pinheiro, Alexandre Sousa / Fernandes, Mário João de Brito – Comentário à IV revisão constitucional, Lisbon: AAFDL, 1999.

·       Sousa, Marcelo Rebelo de / Alexandrino, José de Melo – Constituição da República Portuguesa comentada, Lisbon: Lex, 2000.

 

(ii)     Fundamental rights and freedoms

 

(iii)  General administrative law

 

(iv)    Administrative litigation

 

(v)       Government contracts and public procurement

 

(vi)    Land use planning and construction law

 

(vii)  Environmental law

 

(viii)   Economy law

 

(ix)    Public finances

 

(x)       Tax law

 

(xi)    Criminal law

 

(xii)  Criminal procedure

 

(xiii)   Civil procedure

 

D) Private law

(i)       General theory of civil law

·       Almeida, Carlos Ferreira de – Contratos, I3, Coimbra: Almedina, 2005.

·       Ascensão, José de Oliveira – Direito civil. Teoria geral, I2, Coimbra: Coimbra Ed., 2000; Direito civil. Teoria geral, II2, Coimbra: Coimbra Ed., 2003; Direito civil. Teoria geral, III, Coimbra: Coimbra Ed., 2002.

·       Cordeiro, António Menezes – Tratado de direito civil português, I-13, Coimbra: Almedina, 2005; Tratado de direito civil português, I-22, Coimbra: Almedina, 2002; Tratado de direito civil português, I-32, Coimbra: Almedina, 2007; Tratado de direito civil português, I-4, Coimbra: Almedina, 2005.

·       Fernandes, Luís Alberto de Carvalho – Teoria geral do direito civil3, Lisbon: Universidade Católica Editora, 2001 [two volumes].

·       Hörster, Heinrich Ewald – A parte geral do Código Civil português. Teoria geral do direito civil, Coimbra: Almedina, 1992.

·       Lima, Fernando Pires de / Varela, João de Matos Antunes – Código Civil anotado, I4, Coimbra: Coimbra Ed., 1987.

·       Pinto, Carlos Alberto da Mota / Monteiro, António Pinto / Pinto, Paulo Mota – Teoria geral do direito civil4, Coimbra: Coimbra Ed., 2005.

·       Sousa, Rabindranath Capelo de – Teoria geral do direito civil, Coimbra: Coimbra Ed., 2003.

·       Telles, Inocêncio Galvão – Manual dos contratos em geral4, Coimbra: Coimbra Ed., 2002.

·       Vasconcelos, Pedro Pais de – Teoria geral do direito civil3, Coimbra: Almedina, 2005.

 

(ii)     Law of obligations

 

(iii)  Property law

 

(iv)    Family law

 

(v)      Succession law

 

(vi)    Labour law

 

(vii) Commercial law

 

(viii)   Intellectual and industrial property

 

(ix)    Insolvency law

 

(x)      Corporate law

 

(xi)    International private law