This blog post is part of a series on failed legal transplants in European countries (for the overall presentation: here). In this case, a legal institute from Germany was transplanted to Portugal but was left mainly without implementation by the administration.
The Portuguese Code of Administrative Procedure (Código do Procedimento Administrativo, CPA) follows the European continental tradition of codification of all the activity of the Public Administration, namely the procedures leading to the adoption of an administrative decision (acto administrative), a regulation, or a contract, as well as the regimes applicable to those types of administrative acts.
The first Portuguese CPA was enacted in 1991 and revised only once, in 1996. This meant that, when it was finally replaced in 2015, the original CPA revealed a lack of conformity with amendments that had been made in the meantime to the Constitution and ordinary law, as well as changes in the framework of administrative action due to the European Union law. There was a consensus that the administrative procedure rules should be simplified and modernized. The committee of experts entrusted with the revision of the Code also used comparative law to find solutions that could be useful to the Portuguese legal system. That committee prepared a preliminary draft revision, which was submitted for public discussion. The proposal that resulted from the preliminary draft and the comments made in the public discussion was enacted as the new CAP of 2015.
The transplant of Amtshilfe for the Portuguese CPA
One of the comparative law inspirations was the German Law on Administrative Procedure (VwVfG) and the regime of Amtshilfe (administrative assistance), established in §4 to §8 VwVfG. The fact this was transplanted from a different legal order was expressly admitted in para. 9 of the statement of reasons of the CPA which stated that Article 66(1) of CPA sets out a regime which, ‘although in a simplified form, [is] based on Article 5(1) of the German Law on Administrative Procedure’.
Article 66(1) CPA provides that the body competent for the final decision in an administrative procedure may request the assistance of any other bodies of the Public Administration by asking them to undertake investigations; to share data or documents they possess; or to make available personnel or technical means. The regime was of a supplementary nature, being applicable only when there is no other legal duty of intervention of other bodies in the procedure. Article 66(2) of the CPA provides that the restrictions set out in Law of Access to Administrative Documents (LADA) for the sharing of documents or data is also applicable in this case. Finally, Article 66(3) establishes the regime applicable where administrative assistance requested in accordance with paragraph 1 is refused or delayed. The regime established is not very long, but its implementation may be considered quite complex.
Even though this regime was hailed as one of the innovations brought by the new CPA, the regime remains mainly unused. There is no case law on its application and no news of its general use.
Administrative assistance in Portugal before Article 66 of the CPA
The introduction of the regime of administrative assistance in the CPA was not an absolute innovation. As the statement of reasons also admits, Article 92 of the previous version of the CPA provided that during the administrative procedure, the examining body could ‘request the performance of evidentiary proceedings from other services of the central, regional or local administration, when they [could not] be performed by itself’.
Besides this, in terms of access to information held by other administrative entities, administrative bodies could also (and still can) resort to the LADA, which provides, in Article 5, that ‘everyone, without the need to declare any interest, has the right of access to administrative documents, which includes the rights of consultation, reproduction and information about their existence and content’. All administrative bodies are also included in the scope of application of this provision, thus having the power to access administrative documents held by other public bodies. It would make no sense to exclude the legitimacy of administrative entities, which pursue the public interest, to access administrative documents available to private entities. It is for these purposes that the Commission of Access to Administrative Documents (CADA) is empowered to ‘issue opinions on the communication of documents between services and bodies of the Public Administration, at the request of the requested entity or the interested party, unless there is a foreseeable risk of interconnection of data, in which case the matter shall be submitted to the National Commission for Data Protection’ (Article 30(1)(d) of the LADA).
This is the regime most of the administrative bodies still use to have access to documents and data held by other entities. This is demonstrated by the opinions of the CADA on this subject.
Why did the transplant fail?
A possible first reason for the failure of the transplant of the regime of Amtshilfe for the Portuguese CPA is the fact that it was not needed. No exact reason was given by the committee of experts to the transplant, there was no specific discussion around it during the public discussions, and it was not based on any study demonstrating its need or a lack of cooperation between public administrations in Portugal. The impulse for its implementation seems to stem from a desire to import a figure from the German legal system, in the conviction that it would be useful in the Portuguese legal system. This intention is not objectionable. There is no problem with importing foreign procedural institutes if they are duly framed in the Portuguese legal system and prove useful. What may be criticised in this case is the apparent lack of conciliation with the already existing institutes (LADA).
A second possible reason for the failure is its incomplete and unclear nature. The Portuguese legislator, wishing to create an administrative assistance regime similar to that of the German Amtshilfe, but simplified, ended up creating an incomplete regime. Important aspects of the regime remain unregulated, such as the cases in which the requested body may refuse the assistance, the establishment of legal criteria for the choice of the entity from which the assistance is requested (when there is more than one) and, especially, the rules concerning the legal regime applicable to the requested activity, the sharing of the respective costs, as well as the sharing of the responsibility for the administrative activity in question. In wishing to simplify, the Portuguese legislator, for lack of regulation, has complexified the regime.
Added to this situation is the problem that the regime itself is opaque with regard to certain legal solutions, as in the case of the resolution of situations of undue refusal of assistance. The problems mentioned, together with the relative novelty of the institute (at least in this formulation) and the lack of need for it by the administration (at the light of the LADA), gave rise to a reluctance to use it. There is therefore a very serious risk that this institute has little or no practical application now and in the future.
Posted by Rui T. Lanceiro (University of Lisbon School of Law)
Rui T. Lanceiro is an Assistant Professor at the University of Lisbon Law School and a Senior Research Fellow in the Lisbon Centre for Research in Public Law.
Suggested citation: R Lanceiro, “How do you say “Amtshilfe” in Portuguese? A legal transfer that did not work”, REALaw.blog available at https://realaw.blog/2022/04/10/1219/