by Joana Covelo de Abreu, Junior Editor
The dispute in the main proceedings
On 9th November 2016, the Portuguese Constitutional Court issued decision n.º 591/2016, concerning an incidental and concrete constitutionality control presented before this court.
In the litigation, a legal person presented before the competent national administrative authority (Instituto da Segurança Social, I.P. – Centro Distrital de Braga) a request for legal aid, which was refused without further consideration since article 7(3) of the Portuguese legislation (Lei n.º 34/2004) is clear when it states that “legal persons operating for profit and individual establishments of limited liability do not have the right to legal aid”[i].
Not accepting that decision, the legal person presented an action before the national first instance court where pleaded for the unconstitutionality of the mentioned article 7(3) of Portuguese legislation (Lei n.º 34/2004) and, simultaneously, for the infringement of article 47 of the CFREU.
The court ruled against the legal person because there was a “clear impracticability” in the litigation, understanding among others that the national legislation was not unconstitutional since article 20 of the Portuguese Constitution demands concretization approaches and, for that matter, the limitation steaming from the national legislation was not compromising the Constitution’s setting since other legal mechanisms could be used by the litigator so that it could react under financial stress.
However, the national court did not mention anything concerning EU law and the interpretation national legal rules should meet under EU general principles.