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Approval of the Code of Administrative Procedure 0
23 setembro 2022

Approval of the Code of Administrative Procedure

 

The Law no. 31/22, of 30th August approved the Code of Administrative Procedure (hereinafter referred to as the "Code") and subsequently revoking the previous regime in this subject laid out in the Decree-Law no. 16-A/95, of 15th December.

 

Regarding transitory rules, Law no. 31/22, of 30th August, begins by referring, in its article 2, to the applicability of the regime established in the Code to all procedures and proceedings initiated and not concluded on the date of its entry into force.

 

Regarding its entry into force, article 5 stipulates a vacatio legis of 180 days, counting from the date of publication of the Code, bearing in mind the date of August 30, as the date of publication in the Official Gazette (“Diário da República”) – this new regime will take full effect on February 27, 2023.

 

Having made these brief remarks, we note the following:

 

  1. Part I, under heading “General Principles,” in addition to the so-called traditional Principles, added a set of other relevant principles, of which we highlight the following:

    1. Principle of pursuing the public interest and respecting the rights and legally protected interests of individuals (article 16).
    2. Principle of prior hearing (article 23);
    3. Principle of good administration (article 25);
    4. Principle of due process (article 26);
    5. Principle of digital Administration (article 29);
    6. Principle of administrative transparency (article 30).

  2. In Part II, we highlight Chapter II dedicated to “Interested Parties”, where the following is noted:

    1. Expansion of the concept of legitimacy, encompassing:

      1. Associations dedicated to the defense of collective interests; and
      2. Local government bodies in the respective area, as well as individuals who can "help in the search for the best administrative decision", even if limited to giving opinions and submitting requests to the Public Administration to conduct certain procedures.

  3. In Part III, that introduces the Administrative Procedure Processing, the following stand out:

    1. The rules concerning the express establishment of a duty of expeditiousness (article 95).
    2. The establishment of a general time limit for the conclusion of the administrative procedure, set at 60 days, save in exceptional circumstances. Particular attention is drawn to the provisions of article 96(3), which stipulates that failure to take a decision within the time limits stipulated in this rule will generate liability for the agent involved who, without prejudice to other sanctions, may suffer a deduction of up to 15% of his monthly wage.

  4. In Chapter II of Part III, within the scope of the materialization of the “Right of Individuals to Information” it is worth noting the maximum period of 7 days for the approval of direct consultation or the issuing of certificates or photocopies requested by the interested parties.

  5. Chapter III focuses on Notifications and Time Limits, highlighting the following:

    1. Shortening of the time limit previously provided for the notification of administrative acts, from 8 to 5 days (article 107);
    2. Broadening the form of notifications, thus including the possibility of being made by electronic mail or electronic notification automatically generated by a system incorporated in an electronic site belonging to the department or whenever the addressee provides an access link for this purpose [as per paragraph e) of article 108 (1)];
    3. The rules regarding the counting of time limits are maintained, with suspension on non-working days, providing, however, for an exception in the case of time limits legally set at more than 6 months (as per article 110 (3));
    4. An extension of time limits is now made possible, upon justification, by the Public Administration, if there is no prejudice to the parties.

  6. Section II of Chapter IV (Decision-Making Procedure) deals with the Provisional Measures. Their cumulative requirements are:

    1. Necessity;
    2. Urgency;
    3. Prevention;
    4. Efficiency – the damage resulting from the order must not be greater than that intended to be avoided by its imposition (as per article 123);
    5. It is also foreseen a time limit for its enactment of 5 days, otherwise it will be considered as tacit approval (as per article 124).

  7. Section III deals with the Instruction phase. The following rules are highlighted:
    1. Time limit for appointing an instructor (5 days from the admission of the case);
    2. Time limit for the conclusion of the instruction phase (30 days); 
    3. Shorter time limits for so-called urgent cases – where the claimants are over 70 years of age or cases where, due to the gravity of the matter, decisions must be taken immediately – where Inquiry phase cannot exceed 8 days.

  8. Subsection IV of Section III regarding the Hearing of Interested Parties. The following rules stand out:

    1. Holding the hearing after 5 days of notification of the interested parties (as per article 151); 
    2. Exceptions to the above-mentioned rule time limit are the time limits provided in articles 153 and 154, regarding written and oral hearings. Here it is foreseen, minimum time limits of 10 and 8 days, respectively, for the holding of hearings after notification of the interested parties.
    3. Article 160 of the Code also establishes a time limit of 7 days for the issue of a decision after receiving the report on the procedure drawn up by the investigator.

  9. Section IV concerns to the “Decision and other causes of termination of the procedure”. Emphasis on the rules of formation and valuation of the implicit act:

    1. Article 165, no. 2 now provides for tacit approval if the notification of the act is not sent by the first business day following the end of the decision time limit.

  10. Part IV (and last one of the Code) regulates the Administrative Activity, of which we highlight the provisions of article 205, which foresees the possibility of reopening and reviewing the procedure, depending on the cumulative verification of the following conditions:

    1. One year has elapsed since the deadline for challenging an administrative act; 
    2. There is new evidence that would have led to a more favorable decision for the interested party;
    3. Damage resulting of the permanence of the act for more than 4,000 individuals; 
    4. Demonstration and weighing of the damage associated with the opening of the procedure.
    5. Confirmation by a Court of Law.

  11. In Section VI, we highlight the rules on the complaint and the hierarchical appeal.

    1. Art. 239 sets at 15 days the time limit for the presentation of a complaint, counting from:

      1. The publication of the act in the Official Gazette (“Diário da República”) or in any other public gazette when such publication is mandatory; 
      2. Of the notification of the act, when it has been done, if publication is not mandatory;
      3. The date on which the interested party has knowledge of the act, in the remaining cases.

    2. Article 239(2) establishes the possibility of filing, within a period of one year from the date of the breach of the duty to decide, complaints against the illegal omission of an administrative act. The same rule is foreseen for the filing of hierarchical appeals (as per article 244(2)).

  12. In Subsection IV, a new optional appeal is foreseen, notably, the supervisory appeal, a legal figure close to the former so-called "improper appeal". This appeal may only take place in the following circumstances and only allows the proposition of solutions to the supervised entity:

    1. For body of the same legal entity that exercises supervisory powers; 
    2. For the collegial body, of acts or omissions of any of its members, committees, or sections; 
    3. In situations where there is non-hierarchical delegation of powers.

  13. In Chapter IV of Part IV, under heading “Regulation of Other Matters", We find the regulation of the so-called material acts, regulating factual situations.
     
    1. Article 277 provides that the practice of material acts is subject to the reserve of the procedure, and, therefore, all acts performed outside this context are illegal (a rule that we consider difficult to understand).

 

 

At the end of this brief excerpt on the new regime established by Law no. 31/22, of 30th August, we will also present, shortly, an Informative Note on Law no. 33/22, of 1st September, which approved the Code of Procedure of Administrative Courts, complementary to the law here analyzed.

 

We remain at your disposal for any clarifications that, in the meantime, may be necessary.

 


António Vicente Marques – Sociedade de Advogados, RL
Luanda, September 2022

 
 
 
 

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