INTRODUCTION

OVERVIEW

The evolution observed in the Portuguese legal order led to the consecration in the 1976 Constitution of a general constitutional principle of liability of public authorities (meaning the State and other public entities), as well as their officials, arising out of functional acts or omissions causing violation of ‘rights, freedoms and guarantees’ or damage to someone (art 22).

This principle is understood as a principle that implies direct liability of the State and other public entities irrespective of the State function (legislative, administrative or judicial), the way in which they carry out their activity (public or private) and the cause of the obligation to compensate (unlawful conduct and fault, lawful conduct implying sacrifice or mere risk inherent to hazardous things, activities or services).

Moreover, this principle is considered to be an expression of the rule of law principle which implies a general duty to compensate even in cases which may not be covered by the general principle of State liability laid down in art 22 of the Constitution.

The principle of direct liability of the State and other public entities is considered to be a general principle regarding fundamental rights and has been considered by the Constitutional Court to be directly applicable at least regarding liability for unlawful and faulty acts or omissions (decision no 107/92) meaning that it can be invoked against the law or in the absence of law.

The intervention of the legislator to develop the constitutional principle is therefore desirable although not indispensable, namely to establish the regime of the public liability and requirements of the obligation to compensate. Only in 2007 was a new law on the liability of the State and other public entities, according to the constitutional principle, approved by Parliament – which is the law in force foreseeing the rules on the liability of the State and other public entities.