Key Benefits:
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PROPOSED LAW NO. 155 /X
Exhibition of Motives
The new Statute of the Administrative and Fiscal Courts and the Code of Procedure in the
Administrative Courts, which proceeded to the reform of administrative litigation,
have assigned new and important competences to the administrative courts, which has implicated
the extent of its network, so as to bring justice closer to the citizens and to disfocus
competencies.
The Act No. 13/2002 of February 19 approving the Statute of Administrative Courts
and Fiscal, imposes the creation of a scheme for the recruitment and training of the new
magistrates, task which arises thus as a priority measure to be promoted by the
Ministry of Justice, constituting a determining element for effecting effective
of the reform.
With the creation of a new paradigm of Justice for the Administrative Courts and
Taxation, translated by the new organization of these courts, by the transfer of the guardians of the
Tax Courts for the Ministry of Justice, by the gamble on computerization of the
Administrative Tribunals and, in future, with the computerization of the Tax Courts,
aim to give a new breath to the reforms that come with being implemented in this sector.
The reform inspired itself in the purpose of creating conditions for administrative justice
could address the progressive growth of litigation in this matter by creating a
network of courts of first instance able to ensure proper coverage of the
national territory, as well as, realizing the transfer of the tax courts to the
functional dependence of the Ministry of Justice, incorporating these courts into the new network
which, therefore, was born as a network of aggregated administrative and tax courts.
Equally, he has retired in the introduction of innovative solutions in the fields of the organisation
internal of the courts and the means of process management, directed to potentiate the achievement
of higher standards of rationality and, therefore, higher levels of efficacy and
of efficiency of this sector of justice.
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Decorations two years on the beginning of the reform of administrative litigation the Ministry
of Justice proceeded to an assessment of the main carected areas of improvement, whether in what
respects the appropriate sizing of these courts between the administrative and the
tax wants with regard to the admission and training of magistrates for the Courts
Administrative and Fiscal.
From among the various areas that lack the implementation of suitability solutions checks-
if that, despite the fact that the Statute of the Administrative and Fiscal Courts establishes the lines
general of the recruitment model adopted for the ticket of magistrates in this
jurisdiction, there is not yet a diploma that establishes and regulates your admission.
The process of recruitment and training of magistrates, with particular emphasis on the various
areas of expertise, is a critical factor of success of any reform.
The archetype of recruitment provided for by the Statute of Administrative and Fiscal Tribunals
is based on a clear option for the valorisation of the prior professional criterion and, on the other, by the
guarantee of the maintenance of a high qualitative standard of the candidates,
regardless of their origin, through the realization of written evidence in the subjects
relevant.
The new system, clearly differentiated from the current model presently in force for the
judicial magistrate, translates a model of pluralistic recruitment to the judgeship
in the tendential approximation of modern systems adopted by various countries of the
Europe as succeeding in Spain, France, Germany, Italy and the Netherlands.
On the other hand, the reform of the law governing the admission and training in the
Center for Judicial Studies, understood-if there are no background reasons for CEJ
to maintain a function in the formation of judicial magistrates and another, substantially
different, in the formation of judges of the Administrative and Fiscal Tribunals.
For what a clear option has been taken: to integrate the recruitment and training process of the
magistrates of the administrative and tax courts, on a level of equality face to the
judicial magistratures, within the framework of the CEJ and, as a result, to also be passed on to
representation of the Superior Council of Administrative and Fiscal Tribunals in the organs of the
CEJ, in analogous terms to that of the Superior Councils of Magistrature and the Ministry
Public.
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However, and despite the ongoing reform, the Ministry of Justice cannot ignore the
pressing need for urgent conscription of magistrates, so that one can
going forward with the creation of the six new Fiscal Liquidator Courts-to which it enters into the
programme of action for the modernisation of tax justice and a set of measures
that have been carried out by the Government to improve the effectiveness of tax fairness.
Thus, it is necessary, as an interim measure, the provisional regulation of a contest
exceptional for the recruitment of 30 magistrates assigned to the Tax Courts.
Ascertained the urgency of the procedure, it was also found not to be the same compatible
with an open recruitment to a potentially infinite universe of candidates. If so
it would be necessary to carry out various proofs of selection, with written and oral stages,
ante whose morosity are not allowed to compd the real needs of our system
judicial.
For what has been chosen, in an exceptional way, to limit the recruitment to judicial magistrates
and of the Public Prosecutor's Office, which, once they have already provided evidence, will be selected
only on the basis of a mere curricular evaluation.
After the selection, the magistrates are expected to attend a specific training course,
composed of 12 modules of specialization in the administrative and fiscal areas. During the
course of specialization the magistrates will be assessed for graduation purposes and, when
they fulfil the necessary requirements, they will be appointed in accordance with the provisions of the Statute
of the Administrative and Fiscal Courts.
The Superior Council of the Magistrature, the Superior Council of the Courts, were heard
Administrative and Fiscal, the Superior Council of the Public Prosecutor's Office and the Order of the
Lawyers.
Compliance was given to the collective bargaining procedure, pursuant to the Law n.
23/98, of May 26.
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposal for a law:
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Article 1.
Exceptional admission competition for the Administrative and Fiscal Courts
1-Within 60 days of the date of publication of this Law, tender shall be opened
of exceptional ticket to fill 30 vacancies of magistrates for the
Administrative and Fiscal Courts, competing for the Director of the Center for Studies
Judiciary (CEJ) to make publishing in Journal of the Republic the respective warning.
2-From the notice referred to in the preceding paragraph shall be required by the following
elements:
a) Requirements for admission to the contest;
b) Methods of selection to be used;
c) Final classification system to be used;
d) Entity to which the application application must be submitted, respective
address, delivery time, form of presentation, documents to be joined and others
indications necessary for the formalisation and instruction of the application;
e) Indication that the non-presentation of the supporting documents of the
requirements demanded and indicated in the notice, save those in this consideration
temporarily dispensable, determines the non-admission to the contest;
f) Forms of publicising the list of admitted and non-admitted candidates and the
results of the application of selection methods, as well as of the lists of
final and undergraduate classification.
3-The contest is valid for three years, period in which the magistrates who carry out with
approval the course of specialization but which do not stay classified in a position of
joining the Tax Courts will be able, after deliberation of the Higher Council
of the Administrative and Fiscal Courts, according to the final classification of the course,
join these courts when you check for desistance, remoteness or exclusion
of some of the magistrates assigned to this magistrate.
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Article 2.
Rules of the Contest
The ticket contest complies with the following rules, applying for the same as a subsidiary
constant provisions of the law regulating the structure and functioning of the CEJ and the Statute
of the Administrative and Fiscal Courts:
a) They are only admitted to the contest judges and magistrates of the Public Prosecutor's Office;
b) The application is made upon application addressed to the Director of the CEJ on the deadline
of 15 days from the date of the publication of the notice of openness;
c) The fulfillment of the admission requirements to the contest provided for in the paragraph a) is
verified by a selection jury composed of seven elements, being:
i) A member designated by the Superior Council of Courts
Administrative and Fiscal, which presides over the jury and has a vote of quality;
ii) A member designated by the Superior Council of Magistrate;
iii) A member designated by the Higher Council of the Public Prosecutor's Office;
iv) A member designated by the Center for Judicial Studies;
v) Three Professors doctorates in law, from the areas of law
Administrative, Fiscal and Procedural, appointed by dispatch of the Minister of
Justice;
d) For candidates admitted to the contest, the method of selection to
apply is that of the curriculum assessment;
e) The jury provided for in the c) repart-if in two for the curriculum evaluation,
maintaining, in odd numbers and in each jury, the following composition:
i) A magistrate, from among those referred to in points a) and b) of the preceding paragraph;
ii) A representative of the Center for Judicial Studies;
iii) A doctoral Professor in Law;
f) The curriculum assessment aims to take the following aspects into account:
i) The service classifications up to the date of the contest-40%;
ii) The university and postgraduate curriculum-20%;
iii) Scientific work in the areas of administrative or tax law-
20%;
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iv) Antiquity-10%;
g) Other relevant factors that respect the specific preparation, suitability and
capacity of the candidate for the role-10%;
h) The classification is expressed on a value scale of zero to 20 values, having
into account the coefficients indicated in the preceding paragraph;
i) The graduation of the candidates is made by descending order of the respective
classification;
j) The list of candidates excluded from the concourse and the concurrent are published simultaneously.
the graduation list of the admitted candidates;
l) They are enabled by training the admitted candidates, by order of graduation,
in number equivalent to the number of vacancies, increased by 10;
m) It is admitted to complain of the lists referred to in the preceding paragraph, within 10
days after publication, being the complaints decided by the full jury;
n) The training comprises a course of expertise.
Article 3.
Course of specialization
1-Approved magistrates attend a specialization course organized by the
CEJ.
2-The training course is mandatory, it starts immediately after the publication of the
undergraduate list and has the maximum duration of three months.
3-Magistrates attend the following specialisation modules:
a) Group I:
i) Principles of Financial and Fiscal Accounting;
ii) Legal regime of the IRS;
iii) Legal regime of the IRC;
iv) Legal regime for VAT;
v) Legal regime of the IMT, IMI, stamp duty and other taxes;
vi) Customs law and customs litigation.
b) Group II:
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i) Public procurement;
ii) Administrative acts;
iii) Constitutional principles of tax law and theory of legal relationship
tax;
iv) Administrative litigation: the regime of the Code of Procedure in the
Administrative Courts;
v) Litigation tax litigation: the procedural regime of the Code of Procedure and
Tax Process;
vi) Community law with implications in administrative and tax law
national.
4-Legal modules are lectured by lecturers from the Faculties of Law or by
Masters or Doctors in Law, from the areas of Administrative or Fiscal Law,
appointed by the Minister of Justice, on a proposal from the Director of the CEJ.
5-Modules are subject to evaluation, to which will determine the final classification.
6-A The assessment of trainees, in each module, results from obtaining a grade in exam
or final work, valued on a scale of zero to 20 values.
7-A The final classification of the course corresponds to the arithmetic mean of the classifications
obtained in each module, according to the following weighting:
a) Group I is worth 40%;
b) Group II is worth 60%.
8-The undergraduate lists are published 10 days after the end of the specialization course.
9-During the course of specialization the candidates retain their remunerative status,
your rights, duties and incompatibilities being accounted for, for the purposes of
seniority, the period of training, resuming the respective posts or functions without
loss of seniority in the event of exclusion or justified forfeittance.
10-Without prejudice to the provisions of the following number, the time of service in the courts
judicial releva for the purposes of seniority in the judgeship and, well, for purposes
remunerations.
11-The time of service in the judicial courts, while judges or magistrates of the
Public prosecutor's office, not releva for the purposes of:
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a) Seniority in the administrative and tax jurisdiction, where it will only reliefs the exercise
of duties as a judge of these courts;
b) Contest for the Administrative Central Courts in which they will always be
demanded five years of service as a judge in the circle administrative courts
or in the tax courts and classification not less than Good with distinction
relative to that service.
12-Judges appointed in the scope of this contest shall be subject to a period of
minimum stay of three years in the courts of the jurisdiction in which they were placed,
may not be provided in courts of another jurisdiction prior to the course of the same
and without that they are previously consulted on their respective boards.
Article 4.
Amendment to the Status of Administrative and Fiscal Courts
Article 58 of Law No. 13/2002 of February 19 approving the Statute of the Courts
Administrative and Fiscal, with the amendments introduced by the Leis n. 4-A/2003, 19 of
February, and 107-D/2003, of December 31, is replaced by the following:
" Article 58.
[...]
1-[...].
2-[...].
3-[...].
4-A progression in the career of judges of administrative and tax jurisdiction not
depends on the court in which they perform duties.
5-The judges of the administrative courts and the tax courts amount to the
circle judge category after five years of service in these courts with the
classification of Good with distinction. "
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Article 5.
Entry into force
This Law shall come into force on the day following that of its publication.
Seen and approved in Council of Ministers of July 5, 2007
The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs