Exclusive competence of Parliament to define the assets that constitute the public domain of the state, the public domain of the autonomous regions, and the public domain of the local authorities
Public maritime domain
Public hydric domain
Beds and banks
Important interest pertaining to national defence
RULING Nº 131/03
11 of March of 2003
It is for legislation (the exclusive competence of Parliament, according to Article 165.1.v of the Constitution) to define the assets which constitute the public domain of the State, the public domain of the autonomous regions and the public domain of the local authorities, and also the rules applicable thereto, the conditions of use and the limits (Article 84.2 of the Constitution), entailing not only the delimitation of certain assets vis-à-vis the exterior (public maritime domain, etc.), but also vis-à-vis adjoining private property.
It is a necessary consequence of the fact that it is impossible to transfer the assets of the public maritime domain of the State that it is impossible to transfer the powers inherent in the "ownership" (dominialidade), that is to say, those necessary to its conservation, delimitation and defence, so that these assets continue to be capable of attaining the public-interest aims which justified their allocation to the public domain.
The organs of the regional governments are not competent in matters relating to the internal or external security of the State, and legislation cannot delegate to the autonomous regions powers proper to the sovereignty. The law reserves to the Government of the Republic, in particular, the spheres of external relations, defence and the administration of air and maritime space. Thus, functions such as those of national defence, the control of airspace and the public maritime domain cannot be transferred to the regions. That is to say, the autonomy of the regions does not encroach upon the sovereignty of the State, and all powers regarded as constitutionally necessary to the unitary functioning of the system must for that purpose be reserved to the State apparatus.
The President of the Republic brought an action for preventive review of the constitutionality of a number of provisions of a Decree of the Parliament which amends, as regards the autonomous regions, the statutory definition of the delimitation of the width of the sea shore and also of the shores of navigable or floatable waters subject to the jurisdiction of the maritime or port authorities. According to the measure in question, all powers over the public water domain which were formerly attributed to the State would, at present, in the autonomous regions, be within the competence of the regional self-government organs. Being of the view that the maritime public domain is by nature of crucial interest to the national defence, the President of the Republic asked the Constitutional Court whether such decentralisation of powers is contrary to the principle of a unitary State.
The Constitutional Court observed that in Portugal the public maritime domain includes, in addition to territorial waters, with their contiguous sea beds and assets ( Articles 5.1 and 84.1.a of the Constitution), inshore maritime waters and, in addition, other tidal waters, and also their respective beds and shores, provided that the land belongs to the State. Territorial waters, together with their beds, inshore maritime waters, with their beds and shores, and the continental shelf are regarded, for the purposes of the property of the State, as forming an integral part of the public domain of the State.
The public maritime domain as defined by law must include the strips of land, classified in law as shores, adjacent to the sea or to other tidal waters. The problem of shores comes within the context of the public water domain, which refers to public waters and includes the public maritime domain, the public river domain, the public lake domain and also other waters. It includes, moreover, not only the waters but also land which concerns or which may concern the full production or the defence of the public interest of those waters, such as, for example, the beds and shores.
The Court held that in so far as Parliament left the determination of the limits of the shores to the detailed "deliberation" of the different regional governments, but failed to lay down substantial criteria, it failed to establish criteria for the definition of the limits of those shores, which is constitutionally unacceptable. Consequently, the measure in question infringes the principle of the domain reserved for the law that follows from the combined provisions of Articles 165.1.v and 84.2 of the Constitution.
The Court also concluded that the transfer of certain assets, in particular those which incorporate the public maritime domain, a public domain of the State, to the regional governments is impossible, owing in particular to the principle of the unity of the State and the latter's obligation to guarantee the national defence. Thus, the rule allowing a transfer of the powers of the State inherent in the "ownership" of the land in the public maritime domain to the organs of the regional governments infringes the principle of the unity of the State and of the State's obligation to guarantee the national defence.