Portugal / Constitutional Court / 117/12 A. Limited and B.

Key facts of the case:

The case deals with an appeal submitted by the Public Prosecution regarding a Judgement handed down by the Oporto Court of Appeal which considered that Article 14 (1) in Decree-Law 282/2003 of 3 November was unconstitutional. The law sanctions the application of administrative offences that are levied by the Gaming Department of the Lisbon Santa Casa da Misericórdia which owns the concession to run the State’s gaming interests. There are basically two legal questions raised in the Appeal: the first centres on learning whether Article 20 (4) in the Constitution – interpreted in the light of Article 47 in the Charter guaranteeing the right to a fair trial that is judged by an independent, impartial court – applies to administrative cases involving administrative offences and raised by the appelants; the second question concerns learning whether Article 47 in the Charter may be applied to the provision which the Oporto Court of Appeal deemed unconstitutional given what is laid down in Article 51 of the Charter and raised by the Constitutional Court.

Paragraphs referring to EU Charter: 


Before dealing with the question of constitutionality properly speaking, it is important to point out that what is said, is not fully understandable, whether it appears in the counter-allegations submitted by the appellants or in the decision that is being appealed as regards materialising the fundamental right to a fair trial, ‘in the only sense that is laid down in Article 47 in the EU Charter of Fundamental Rights’. This is because it should always be kept in mind that the rules enshrining fundamental rights and issuing from the EU Charter of Fundamental Rights, only ‘has as its addressees, Union institutions, bodies and organisations, in observance of the principle of subsidiarity, as well as Member-States only when they apply Union law [cf. Article 51 (1) in the Charter]. Now, in the present court records, only the application of rules that have to do with internal legislative acts are mentioned and not the sources of European Union Law, this being the reason why the above-mentioned Article 47 in the Charter does not appear here". “Without jeopardising any interpretative opening afforded in Portuguese Fundamental Law – particularly owing to the opening clause about fundamental rights (cf: Article 16 (1) in the Portuguese Constitution), what is certain, is that in this case, the interpretation to be extracted from the rule enshrining ‘the right to a fair trial’ (cf: Article 20 (4) in the Constitution), is not found to be directly bound up in the hermeneutical assessment emitted by the Charter. Rather, it is due to an autonomous interpretation, founded within the precinct of internal constitutional rule-making, even if it is unable to disregard the enlightening function of other external sources about the contents of the fundamental rights in question.

Deciding body (original language): 
Tribunal Constitucional