The “speciality” of Social Rights: guarantees of public employment in the Portuguese Constitution before European Union Law

by Ricardo Sousa da Cunha, PhD (JUSGOV/UMinho, ESG/IPCA)

The Constitution of the Portuguese Republic (CRP) enshrines in article 47.º, n.º 2 a guarantee of public employment after a public tender that has been challenged in the application of European Union Law by the domestic courts.

This constitutional guarantee was the basis for the decision of the Constitutional Court n.º 368/00, of 11 July 2000, which upheld the challenges on the constitutionality of legal provisions (art. 10.º, n.º 2 of Law n.º 23/2004, of 22 June, and art. 14 of DL n.º 427/89, of 7 December) determining the nullity of labor contracts of public entities with civil servants that had not been selected by a public tender. The basis for this decision was the fulfilment of the constitutional principle of equal sharing of public benefits and costs as a consequence of the principle of the rule of law.

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Portuguese Constitutional Court’s decision n.º 591/2016, of 9 November 2016 or when the Constitutional Court looked to EU law legal aid matters: figuring out the treasure’s map…

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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.

Continue reading “Portuguese Constitutional Court’s decision n.º 591/2016, of 9 November 2016 or when the Constitutional Court looked to EU law legal aid matters: figuring out the treasure’s map…”