Legitimacy of "legislative experimentation" in the civil-law procedural system
RULING No. 69/2008
Case no. 240/2007
Rapporteur: Justice Maria Lúcia Amaral
Ruling of the Constitutional Court sitting in Plenary
1. A., Lda. brought a summary civil action against B., Lda. before the Oporto Civil Court, in which it asked the court to order “the defendant to pay the plaintiff the sum of 14,000.00 euros plus interest at a rate of 9.25% from the moment in time when it was served, and at the standard legal rate for the rest of the time”.
In an order dated 13 December 2006, the 1st Section of the 3rd Bench of the Oporto Civil Court decided that, “as the plaintiff indicated in its initial suit and in accordance with the provisions of Articles 462, and 783 et seq. of the Code of Civil Process (CPC), the present civil action will henceforth be conducted under the common summary process, wherefore the case will be allocated to a new judge and reclassified as a type-2 case, and the previous allocation will be cancelled (see Articles 220a, 221 and 222 of the CPC).”
In explaining the above decision, against which the present appeal has been lodged, the court said that it reached this conclusion on the grounds that “application of the sole Article in Ministerial Order no. 955/2006 of 13 September 2006 and of the rules set out in Article 21 of Executive Law no. 108/2006 of 08/06/2006, when interpreted in a such a way as to constitute sufficient authorisation for the implementation of the measure which the Ministry of Justice established by means of the said Ministerial Order”, should be denied “because the Court considers both rules to be in breach of the principle of equality provided for by Article 13 of the Constitution of the Portuguese Republic (CRP), and consequently hereby decides not to apply the Experimental Civil Process System (RPCE) approved by the aforesaid Executive Law, to this case.”
According to the court’s explanation of the grounds it gave for this decision, “the question that must necessarily be posed is whether or not there are legally valid reasons that justify the imposition of this application, and its simultaneous restriction, to such a small number of courts with competence in Civil Law – in other words, given the geographic competence rules provided for by Articles 73, 74, 76, 85 to 87, and 89 of the CPC, to such a small number of persons and enterprises in a democratic state based on the rule of law like the Portuguese Republic (Article 2 of the CRP)”. The court of first instance admitted to its “total perplexity in the face of the list and number of arguments used to provide grounds for the unequal treatment of persons and enterprises at the level of the exercise of subjective rights and interests via recourse to the courts. We even feel that such arguments, which are based on mere considerations of an abstract, vague and imprecise nature, are far from constituting an objective and rational justification for anything at all.” “Quite apart from anything else, we consider that history has established the idea that the mere geographic location of a suit, which is in turn a consequence of the location of the persons, things or interests deemed relevant, can never – at least in a Democratic and Unitary State Based on the Rule of Law – constitute a legitimate criterion for providing grounds for the application of different forms of process to the same type of suit, which is the same as saying the application of different sets of structured acts founded on differing concepts as to the most appropriate means for achieving the just jurisdictional resolution of the same kind of conflicts of interest.” Which is why the court goes on to ask: “In reality, how could anyone believe that the mere fact that a property is located in Oporto necessarily means that an action for ejectment will possess a different procedural form than an action for ejectment whose object is a property located in Vila Nova de Gaia, or Vila Velha de Ródão, or Vila Flor?!”
The court of first instance goes on to say: “But even in the light of the selection criteria set out in the Ministerial Order under analysis, the choice of the only four courts mentioned there as possessing competence for the obligatory application of the RPCE cannot but deserve to be described as an act which is deprived of rational and objective justification, and which is therefore arbitrary.” And later on in the grounds for its decision, the court asks: “In the light of the criteria which the Ministerial Order deems legitimate for justifying the different treatment of persons and enterprises in the process of securing the resolution of a dispute between private interests via the courts, how can we rationally understand the fact that in the Oporto Metropolitan Area, only the civil benches and the small civil claims benches fulfil the requirements that are indispensable if they are to deserve to apply the new procedural system?” “And where the Lisbon Metropolitan Area is concerned, what should we say when it is considered that only the Almada and Seixal civil benches deserve to play an active role in such a marvellous modern-day legislative experiment?!”
Again in the words of the court whose decision is the object of the present appeal, “one would do well to be aware that the experimental nature of the system in question does not offer any benefit that would objectively and rationally warrant an affirmative answer to the question posed in point III.” “In truth, the system in question is no more or less experimental than any other system, in the sense that while it is in effect in the Portuguese legal order it will inevitably produce concrete legal effects, and will consequently affect the balance of the whole community’s legal relationships. Like any other legal system in force, it will inevitably be subject to a constant assessment of its political/legislative conformity, and at any time may become the object of revision or revocation by a body to which the Constitution entrusts the power to do so.” “At the end of the day, the originality of this experimentation lies solely in the fact that it only applies to some legal suits, while other suits of the same type are excluded.” “As such, it is the new system’s experimental nature itself, as per the definition it itself provides, which we take to be the reason for the existence of the materially unjustified unequal treatment that we are witnessing as time goes by. To express it in another way, to justify discriminatory treatment on the basis of that treatment’s experimental nature is to quality such an experiment as discriminatory, and is therefore intolerable.” “Application of the rules of the RPCE on the one hand, or of the summary process rules provided for by the CPC (which are applicable to identical suits in the other judicial districts around the country, except for the Almada and Seixal Judicial Districts) on the other, will certainly affect the outcome of the case before us (otherwise we would not be, in the words of the legislative authorities themselves, in the presence of ‘a major change in a sensitive domain’.”
2. The Public Prosecutors’ Office lodged an appeal against this court order under the terms of Article 70(1)a of the Law governing the Constitutional Court (Law no. 28/82), in which it asked “for consideration of the declared unconstitutionality of the sole Article in Ministerial Order no. 955/2006 of 13 September 2006 and of the corresponding rule set out in Article 21 of Executive Law no. 108/2006 of 8 June 2006”.
The Public Prosecutor’s Office submitted its arguments to this Court, which it concluded as follows:
To the extent that they restrict the applicability of the “experimental procedural system” for which they provide to certain judicial circuits, the rules set out in Article 21 of Executive Law no. 108/2006 of 8 June 2006 and in the sole Article in Ministerial Order no. 955/2006 of 13 September 2006, do not injure the constitutional principle of equality.
In reality, the difference between the procedural treatment afforded to parties who litigate before the courts where the said system is already in effect, and that afforded to those who litigate before the courts based in the remaining circuits, is a result of the pursuit of an interest that is important to the administration of justice, inasmuch as it avoids the inconveniences that would inevitably derive from the generalised application of solutions which are open to debate, drastically innovative, and insufficiently tested by judicial practice.
As such, the present appeal should be upheld in a finding of the non-unconstitutionality of the rules that the decision against which this appeal has been brought refused to apply.
A., Lda. did not submit arguments.
Following a reallocation as a result of the new composition of the Constitutional Court, the Court must now consider and decide.
Grounds for Decision
The question of constitutionality
3.The rules before us
What are at stake in the present appeal on the grounds of constitutionality are the rules set out in Article 21 of Executive Law no. 108/2006 and in the sole Article of Ministerial Order no. 955/2006.
Article 21 of Executive Law no. 108/2006 reads as follows:
1–The present Executive Law shall apply in such courts as are to be determined by Order of the Ministry of Justice.
2–The courts to which the previous paragraph refers shall be chosen from among those with a large caseload, while bearing in mind the predominant objects of the litigants’ actions and their areas of economic activity.
The sole Article in Ministerial Order no. 955/2006 in turn says the following:
The experimental procedural system approved by Executive Law no. 108/2006 of 8 June 2006 shall apply to the following courts:
a) Benches with Specialised Civil Competence belonging to the Almada Judicial District Court.
b) Civil Benches belonging to the Oporto Judicial District Court.
c) Small Civil Claims Benches belonging to the Oporto Judicial District Court.
d) Benches with Specialised Civil Competence belonging to the Seixal Judicial District Court.
The court against whose decision the Public Prosecutors’ Office has lodged an appeal to the Constitutional Court (in the first place, under the terms of Article 280a of the Constitution) denied the application of these rules on the grounds that they are in breach of the principle of equality enshrined by Article 13 of the CRP.
However, it is impossible to understand the meaning and scope of the question of constitutionality which has thus been brought to this Court, unless we first interpret the rules before us within the regulatory context of which they form a part.
4.The experimental civil procedural system
Basing itself on the principle – expressed in its Exposé of reasons – according to which “(the) current socio-economic reality is considerably different to that which saw the birth of the Code of Civil Process”, Executive Law no. 108/2006 approved a system which calls itself an ‘experimental procedural system’ (Article 1), for application in civil actions which are not subject to special process, and in special actions seeking fulfilment of pecuniary obligations arising from contracts. Designed (again according to the abovementioned Exposé of reasons) under the “sign” of “simplicity, flexibility” and confidence in “both the ability of the persons and bodies who intervene in the judicial process to quickly, efficiently and fairly resolve disputes in court, and their interest in doing so”, this experimental procedural system is structured around a number of essential rules and principles, which the decision against which the Public Prosecutors’ Office has brought the present appeal does a good job of characterising. Among other things, the system: emphasises the duty to manage the process (Article 2); makes it possible for procedural acts to be undertaken electronically (Article 3); provides for a daily allocation of cases (Article 4), and that service by publication be made in the shape of announcements on a public-access webpage (Article 5); creates the ‘combined actions’ format, and admits the possibility that ‘official acts may be made individually’ (Articles 6 and 7); allows questions of fact to be decided in sentences, and that the latter can be limited to just the actual decision section (Article 15); allows the finding about the main issue in a case to be decided in injunction proceedings (Article 16); and, as a general rule, restricts the number of articulated pleadings to one by each party (Article 8).
However, the “soul” of the system appears to lie in the duty to manage the process created by Article 2, which is naturally incumbent on the judge. While at this point we do not propose to discuss – because it is useless to do so – the question of whether, given the existing provisions of Articles 265 and 265-A of the Code of Civil Process, such a duty is new, the truth is that the amplitude with which it is now restated (by Article 2 of the RPE) would seem to indicate that here the intention of the ordinary legislative authorities is clear. On the one hand, the experimental procedural system establishes a relatively simplified paradigm for the details of the way in which the legal process is conducted – one which is applicable to all civil actions, whatever their declared monetary value; but on the other hand – and precisely because there is now a broad duty on the part of the court to manage the judicial process, which is seen as the “duty to adapt the procedural details to the specificities of each suit” – this simplified paradigm for the procedural details does not appear to be more than a “standard model” to which the judge may adhere, but one on the basis of which he himself can also “construct” the (more complex) procedural details that are appropriate to the case before him. If this is true, abandoning the principle that procedural forms must precisely comply with the law and be type-based (in favour of a new principle – that of the possibility of the case-by-case construction of those forms by the judge) seems to be the essential core of the experimental procedural system (in this sense, see Luís Filipe Brites Lameiras, Comentário ao Regime Processual Experimental, Coimbra, Almedina, 2007, p. 31.)
It was the legislative authorities themselves that described this system as “experimental” (Article 1 of Executive Law no. 108/2006); and given that all “experimentation” implies that there will be a “test or a trial run” before any solution is “definitively” adopted, those authorities – in a way that is coherent with the description they themselves gave – resolved to limit the time and space within which the system would remain in effect, so as to be able to assess its effects before ordering that the new paradigm take “full effect”. They therefore laid down in its own Article 20 that Executive Law no. 108/2006 be reviewed within two years of the date of its entry into force (16 October 2006); and that throughout this initial period in which it was to be in effect, it should be the object of the “respective legislative assessment via the departments of the Ministry of Justice with the responsibility and authority to do so”. Just as they also ordered that during the “experimentation” period, the new civil procedural model apply only to certain courts, “to be determined by Order of the Ministry of Justice” (Article 21).
5. The object of the appeal
It is exactly to the latter legislative provision – and its implementation by Ministerial Order – that the question of constitutionality which has been posed to the Court in the present appeal refers.
The fact is – as the representative of the Public Prosecutors’ Office at this Court underlines in his argumentation – the object of the appeal does not include the question of whether one or more of the rules in the new procedural format is/are in conformity with the Constitution when taken individually. Rather, that which we are seeking to find out is whether the legislative decision to apply the whole of this system of rules only to certain judicial circuits and not others – a decision that was specifically taken in the shape of Article 21 of Executive Law no. 108/2006 and implemented by the sole Article in Ministerial Order no. 255/2006 – complies with the Constitution, and more precisely, with the principle of equality.
As we have already seen, such a decision can be “explained” by the “experimental nature” which the new model itself admits to possessing. The legislative authorities did not want that model to be seen as “definitive”, or as capable of immediately replacing the current procedural system. Instead, what they wanted was “to test and perfect the existing provisions for speeding up and simplifying the process and making it more flexible, before expanding the extent of its application” (Exposé of reasons for Executive Law no. 108/2006, our italics). A similar desire for “experimentation” meant that not only was the period for which the Executive Law was to remain in effect limited by the order that it be obligatorily reviewed within two years, but also that the legislative authorities should “opt to initially restrict the system’s application to a set of courts that was to be chosen for their large caseload…” (Exposé of reasons for the Executive Law).
There are thus close links between the question of the system’s “experimental nature” and the question of its geographic limitation (to the small number of courts named by the Ministerial Order). The decision against which the present appeal has been brought is perfectly aware of this close tie when it argues that “it is the new system’s experimental nature itself, as per the definition it itself provides, which we take to be the reason for the existence of the materially unjustified unequal treatment that we are witnessing as time goes by” (sheet 32 of the case file).
As such, we must look at the question of constitutionality which the present appeal poses the Court in the following manner: is it constitutionally tolerable – first of all, as regards the principle of equality – that, because it is an experimental system, the civil procedural system instituted by Executive Law no. 108/2006 should only be applicable to the judicial circuits named (under the authority granted by the Executive Law) by the sole Article in Ministerial Order no. 255/2006? This question includes two problems which, for methodological reasons, must be distinguished from one another: (i) the problem of whether or not the application of the civil procedural system to those, and only those, judicial circuits that were, under the authority granted by the Executive Law, named by the regulatory provisions in question is in conformity with the Constitution; and (ii) the problem of whether the “legislative experimentation” itself can be censured in constitutional terms. As we have already seen – and as the arguments we develop below will show – the two problems are closely related; the distinction between them is only operable from a methodological point of view.
The Experimental Civil Procedural System and the Principle of Equality
6. The constitutional parameter
The constitutional jurisprudence that has gradually brought greater precision to the content of the principle of equality set out in Article 13 of the CRP – or rather, the only aspect of it which is of interest to us in this case: that of a specific requirement on the part of the legislative authorities, and not that of a principle which is applicable to the administrative and/or judicial authorities – is both longstanding and firm. It is well known that the Court has always said that, as regards this particular aspect of the principle, “equality” does not signify the prohibition of differentiated legal treatments; instead it means the prohibition of differences that affect people and do not possess due grounds in the light of the constitutional system itself. In the words of Ronald Dworkin, what is at stake here is not – cannot be – a “right” that accrues to people to be treated the same in every identical case; it is the “right” to be treated as equals (Ronald Dworkin, Sovereign Virtue, The Theory and Practice of Equality, Harvard University Press, 2000, p. 11).
The Court has always subscribed to this guideline in a body of jurisprudence which, because it is vast, we cannot refer to in full here. It is enough to recall, for example, its recent continuation in Rulings nos. 442/2007 and 620/2007; and in Ruling no. 232/2003, which offers a summary that expresses the whole of the Court’s earlier jurisprudence in this domain (all three available at www.tribunalconstitucional.pt).
However, and while we are still in this field, it is too vague to identify the content of the principle of equality solely with reference to the “category” of the prohibition of differences (in terms of the way legislation treats a subject) for which there are no due grounds from the point of view of the constitutional system.
As the Court said in Ruling no. 412/2002 (also mentioned in Ruling no. 232/2003), “the principle of equality fundamentally covers three dimensions or aspects: the prohibition of arbitrariness; the prohibition of discrimination; and the obligation to differentiate. The first of the three means the requirement for equal treatment for equal situations, and the prohibition of equal treatment for situations that are manifestly not the same (...); and the second, that any differentiation in treatment which is based on subjective criteria (e.g. ancestry, race, language, place of origin, religion, political or ideological beliefs, education, financial situation, or social circumstances) is illegitimate; while the last is a way of compensating for unequal opportunities.” (Acórdãos do Tribunal Constitucional, Vol. 54, p. 417)
This means – leaving aside for now the last of these three “dimensions”, which poses the complex problem of the so-called “positive forms of discrimination”, which it is of no use to address at this point – that we must bring a distinguo into this broad class of “(constitutionally) unjustified differences” whose imposition is prohibited by the principle of equality when the latter is directed at the legislative authorities. It is one thing to prohibit arbitrariness, or legislatively imposed differences that are not justified by any form of sufficient rational grounds; it is another to prohibit discrimination, or differences that are justified by certain ‘subjective criteria’ which the Constitution, because of their close connection with personal dignity, felt should at first sight be incapable of warranting the existence of different sets of legal rules. The usefulness of the ‘distinguo’ – the Court has said so, for example in Ruling no. 191/88 (Series I of Diário da República no. 231, p. 4080) – lies not only in the fact that it has a place in the text of the Constitution itself, which dedicates paragraph (2) of Article 13 to setting out the prohibition of discrimination separately from anything else; but also – and above all – in the fact that the two “aspects of equality” correspond to tests of constitutionality that are defined with different degrees of precision. The thing is that “where a differentiation that relies on one of these factors” (the aforementioned ‘subjective criteria’ which, at first sight, seem incapable of warranting differences between the ways in which people are treated) “is established on the normative level”, then “we must presume, at least to begin with, that we are in the presence of a constitutionally inadmissible discrimination”, and “if subsequent investigation reveals that that factor is the one and only cause of the differentiation in question, then there can be no doubt that there will be a breach of the constitutional principle of equality” (Ruling no. 191/88, loc. cit.). However, if the reasons that formed the basis for the difference were other, different ones, then the test of constitutionality which must be applied to them will also be different. At that point the instance with the competence to perform such a ‘test’ will have to gauge the rationality and objectivity of the reasons which served as grounds for the difference, and the legislative authorities will be subject to censure when – and only when – it is demonstrated that their “reasons” were arbitrary or absurd, because they did not include any that were “rational” and “objective” – or were intersubjectively capable of being seen as such – and could justify them.
The decision which is the object of the present appeal argues that the rules before us breach Article 13 of the Constitution; and although on several occasions it says that that injury involves “legislative arbitrariness” – because the court felt that the decision by the legislative authorities to apply the experimental procedural system solely to the courts listed by Ministerial Order no. 955/2006 is lacking in any rational and objective justification – at other points it also refers to the injury to the principle that is identified with the prohibition of discrimination. It does so not only when it supports its argument with reference to a legal-theoretical interpretation of the constitutional parameter that does not exclude either or the two dimensions (sheet 25 of the case file); but also when it says that the legislative “experimentation” in question is intolerable in its own right, because it is discriminatory (sheet 32). However – and for the reasons we have already given – it is important to make a distinction here.
7. The rules before us and the prohibition of discrimination
The prohibition of discrimination set out in Article 13(2) of the CRP – seen in the context of the present case as a principle that binds the legislative authorities – corresponds to a deep-rooted constitutionalist tradition that can be understood with reference to three fundamental elements, all of which are interrelated. First, the particular “precision” and “weight” of the control to which the legislative authorities’ choices are subjected whenever they create differences between sets of legal rules, which might fall foul of that prohibition. Second, the particular nature of the reasons which, in this domain, explain the prohibition of legislative differences. Third, the content itself of the discriminatory legislative act – i.e. the degree and kind of differences which, when they are accepted by the legislative authorities, should be seen as discrimination. We have already talked about the first of these elements – that concerning the “precision” and “weight” of the control – so we will not cover the same ground again. Let us now focus our analysis on the second and third elements.
Article 13(2) of the CRP lists the reasons that provide the grounds for the prohibition of discrimination – reasons which are in harmony with constitutional orders that are close to our own (see, for example, Article 3 of the German Constitution, and Article 14 of the Spanish Constitution). However, and given that this “list” of items cannot be seen as exhaustive (but rather just as a list that helps to provide a “definition”; in this respect see, for example, Ruling no. 191/88, loc. cit.), the technique of providing lists, which exists in our constitutional order and in others that are close to it, does not preclude the need for abstraction and conceptualisation in this domain. These reasons, which provide the grounds for the fact that the Constitution prohibits discrimination in every case, must possess some kind of special nature. Legal theorists have normally felt that this special nature must be sought in the constitutional value that every person possesses an equal degree of dignity – or as Dworkin says, in the “right” that everyone enjoys to be treated as equal – such that discriminatory reasons or factors are deemed to be all those “which are exclusively based on (subjective) attributes over which people have no possible control, or on life options (…) which people are free to establish” (in this sense, see Jorge Reis Novais, Os Princípios Constitucionais Estruturantes da República Portuguesa, Coimbra Editora, 2004, p. 110). Similarly, US Law, which is rich in highly developed legal theory in this domain, calls these discriminatory “reasons” or “factors” – which, in the USA, are not even listed in positive law – by the flexible name of “suspect categories” (in this sense, see Lawrence H. Tribe, American Constitutional Law, The Foundation Press, 1988, 2nd edition, p. 1465).
As to the third element – the content of the differences which, if they are accepted by the legislative authorities, are of a sufficient nature and degree that they can be seen as discriminatory – we must say that the positive formulation of Portuguese Law means that it gives interpreters clearer guidelines than those provided by other legal systems. The fact is (once again, see the abovementioned examples of Article 3 of the Fundamental Law of Bonn, and Article 14 of the Spanish Constitution) that the texts of constitutions do not normally explicitly describe the content of discriminatory acts. Article 13(2) of the CRP on the other hand, says that “(n)o one shall be privileged, favoured, prejudiced, deprived of any right or exempted from any duty on the basis of (…)”. As we can see, an explicit statement gives interpreters clear guidelines as to just what “discrimination” itself consists of.
It is very clear that the rules before us in the present case lead to people being treated differently. The conjugated provisions of Articles 21 of Executive Law no. 108/2006 and the sole Article in Ministerial Order no. 955/2006 – which together say that that the experimental procedural system is only applicable to civil actions which are not subject to special process and to special actions seeking fulfilment of pecuniary obligations arising from contracts, which are brought before certain courts and not others – clearly mean that anyone who is a party in any such action will, for reasons that concern the mere geographic location of the suit, receive a “different treatment” to that given to other cases, to which the common procedural system will continue to apply. But that which is not at all clear is that this “different treatment” causes a discrimination that is prohibited by the Constitution, in the precise sense which we must attribute to that “prohibition” and which we have just identified.
The fact is that to begin with, it is quite doubtful whether the “mere reason of geographic location” – a decisive criterion for the application of the different system in the case at hand – can be seen as a discriminatory “criterion” or “reason” whose nature renders it analogous to those included in the open list provided by Article 13(2). It is certain that what we have here is a “reason” over which – to use the term employed in the guidelines we sketched earlier – “people have no possible control”; but it is also certain that it cannot be confused with any “subjective attribute” which, given its relationship to the principle that every person possesses an equal degree of dignity, must immediately be dismissed as grounds for constitutionally admissible forms of differentiation.
On the other hand, the content of the difference – or of the different treatment that results from the application of different procedural systems – does not mean that (anyone) will be “privileged, favoured (…) or deprived of any right” as described by Article 13(2) CRP. In reality – and contrary to that which seems to arise at a certain point as the result of the interpretation outlined in the decision against which the present appeal has been brought (sheet 22 of the case file) – none of the provisions of the Constitution allow us to deduce the existence of any right on the part of private individuals to a certain formatting of the (civil) process which would impose itself on the ordinary legislative authorities as a fixed standard for the details of the way in which the legal process is conducted and which would have to be adopted ne varietur. As the Court has always said (in this respect, see Rulings nos. 960/96, 222/90, 86/88 and 404/87), the way in which the legislative authorities shape civil process is bound to the principle of the due process of law, which the Constitution immediately enshrines in Article 2 and is derived from Article 20. That which derives from this principle is the right to a legal solution of conflicts, which must be secured within a reasonable period of time and must be dispensed with fulfilment of the guarantees of impartiality and independence and with a correct functioning of the principle of pleading and counter-pleading. Inasmuch as these are the binding provisions which the Constitution imposes on civil process, beyond them lies the space in which the legislative authorities are free to shape legislation, so those authorities are not limited in advance by the existence of a right to a certain, specific, detailed form of process.
There can be no doubt – and the decision which is the object of the present appeal says so on sheet 23 – the type of action and the type of procedure are never independent variables, so the existence of different forms of process can lead to the existence of different “types of action”. However, this is not enough for us to call the “difference” which the system before us undeniably renders possible, discriminatory. All that remains is thus to find out whether it is arbitrary.
8. The rules before us and the prohibition of arbitrariness
As we have already seen, the sole Article in Ministerial Order no. 955/2006 requires that the experimental procedural system be applied solely in the Benches with Specialised Civil Competence belonging to the Almada Judicial District Court, the Civil Benches belonging to the Oporto Judicial District Court, the Small Civil Claims Benches belonging to the Oporto Judicial District Court, and the Benches with Specialised Civil Competence belonging to the Seixal Judicial District Court. As we also already know, it does so in compliance with Article 21 of Executive Law no. 108/2006.
The decision against which the present appeal was brought says that the “arguments” that are used as grounds for this restriction on the geographic application of the experimental system, which are said to be “based on mere considerations of an abstract, vague and imprecise nature”, “are far from constituting an objective and rational justification for anything at all” (sheet 27 of the case file). It then goes on to advance a number of reasons which, in the court’s opinion, illustrate the “arbitrary” – i.e. neither “rational” nor “objective” – nature of the choices that the legislative authorities made in this domain.
First of all, the “fact” that the authorities chose the “mere geographic location of suits” (sheet 28 of the case file) as the key criterion for the application of the RPE: in this respect the decision against which the present appeal has been brought says that in a democratic and unitary state based on the rule of law, this can never constitute a legitimate criterion “for providing grounds for the application of different forms of process to the same type of suit” (ibid.). It then alleges that there is a discrepancy between the reasons that are thought to have led the legislative authorities to create a new procedural model on the one hand, and the scope of its application on the other: “[i]nitially designed to respond to particular needs of a certain type of litigation – that undertaken by the so-called ‘mass litigators’ (…), the new procedural system has ended up being applied to all the (common) civil declaratory actions brought before the aforementioned courts” (sheet 29). Finally, in the light of these same reasons, the decision questions the concrete choices that were made in geographic application terms, and asks (sheet 30): “how can we rationally understand the fact that in the Oporto Metropolitan Area, only the small civil claims benches fulfil the requirements that are indispensable if they are to deserve to apply the new procedural system? (…) And where the Lisbon Metropolitan Area is concerned, what should we say when (…) only the Almada and Seixal civil benches are included?”
So these were the “perplexities” that led the court of first instance to deny the application in the present case of the experimental system approved by Executive Law no. 108/2006, on the grounds of the arbitrary nature of the unequal treatment of persons and enterprises “at the level of the exercise of subjective rights and interests via recourse to the courts” that would be derived therefrom.
However, and as regards the principle that arbitrariness is prohibited, which is derived from Article 13(1) of the CRP, the Court has always emphasised two essential ideas that it is important to recall at this point. First of all, what is at stake here is not – cannot be – “judgements” as to the quality of legislative solutions; then, given that in this domain the Constitution only prohibits “differentiated treatment without sufficient material grounds, which is the same thing as saying without reasonable justification using constitutionally relevant value criteria” (Ruling no. 39/88, in AcTC, Vol. 11, p. 233 et seq.), we must find out what the ratio of the provisions in question is, so that we can use that ratio to assess whether or not those provisions possess “reasonable grounds” (Ruling no. 232/2003 and the legal theorists quoted therein: AcTC, Vol. 56, p. 39).
Now, as we have already seen, the ratio of the provisions before us lies in the “experimental” nature of this new procedural system, which is based on the principles of “simplicity”, “flexibility”, and confidence “in both the ability of the persons and bodies who intervene in the judicial process to quickly, efficiently and fairly resolve disputes in court, and their interest in doing so”. It is precisely because the legislative authorities wanted to “test” and “perfect” a system which was designed in that way before expanding the scope of its application that – and here we recall the Exposé of reasons for the Executive Law – to begin with they opted to restrict the system’s application to “a set of courts that were to be chosen for their large caseload”.
In the light of this reason, it is understandable that it was not possible to choose all the courts with a large caseload, but only some of them (the question which the decision that is the object of the present appeal poses as to the choice, within the Lisbon and Oporto Metropolitan Areas, of “just” those benches and not others thus has at least one reasonable answer). Just as it is understandable – again in the light of the same reason – that from the small number of courts that were chosen to “test” the system, it was decided that within them – a universe that was already limited in its own right – the new procedural model should be applied to all the civil actions. And finally, just as it is understandable that, once we accept the reasonableness of the “test” and the “trial run”, the latter could not be undertaken on the basis of any criterion other than the “mere geographic location of suits”.
There can be no doubt that this ratio results in people being treated differently. As the court of first instance says, because of it “a suit that is designed to pursue the civil liability arising from a road accident” can be subject to “another procedural system, depending whether the accident occurred in one place or in another (…)”. But it is also true that such differences are neither absurd, nor arbitrary: a raison d’être, an understandable basis, has been found for them – none other than the “experimental” nature of the new civil process system.
It is precisely because it agrees that this is the case – that the unequal treatment finds reasonable grounds in the experimental nature of the system – that the decision against which the present appeal was brought ends up disputing the “experimentation” in question itself: “having reached this point, it is time to discuss the self-proclaimed ‘experimental’ nature of the procedural system before us, in such a way as to determine whether or not that nature can constitute an objective reason (…) that would justify the discrimination (..)” (sheet 30-1 of the case file). We must say straight away that this question is entirely pertinent. As the Court has said in the past, it is not just any “reason” that can justify differences in the way people are treated. When the prohibition of arbitrariness is at stake, the only ones that are sufficient to avoid a judicial censure of the legislative authorities are those “reasons” or “sufficient material grounds” which match constitutionally relevant value criteria. It therefore remains to find out whether the phenomenon of “legislative experimentation”, taken in its own right, is included in that category.
Constitutional grounds for legislative experimentation
9. According to the description that was given to it by the legislative authorities themselves, the procedural system instituted by Executive Law no. 108/2006 is an “experimental system”. As we have already seen, this means that before the system’s adoption as a definitive regulatory model, an attempt was made to test or try the application of its rules by limiting that application in time and space, in such a way as to be able to better assess the ensuing effects.
As the representative of the Public Prosecutors’ Office at the Court points out in his arguments, such a legislative “method” is not new here in Portugal, and has indeed been discussed in depth in comparative law (for a complete overview, see Charles-Albert Morand [org.], Évaluation Législative et Lois Expérimentales, Presses Universitaires d’Aix-Marseille, 1993). That which characterises it is indecision on the part of the legislative authorities.
The fact is that “experimental rule-making” presupposes first of all the existence of legislative authorities who are undecided, or who are lacking in certainties as to the definitive regulations they ought to adopt in order to fulfil certain public policies or to discipline certain areas of collective life. So, instead of waiting for the Law to come to match the realities of life by means of a continuous process brought about by case law, or via a discontinuous process operated by successive legislative reforms – processes that we will call the “classical” method of rule-making – the “experimental legislator” first tests or tries out the application and effects of its rules in a limited space and time, in order to avoid the risks which the adoption of “definitive” normative systems might generate in situations in which there was a high degree of uncertainty as to the effects of certain regulations (Pierre-Henri Bolle, “Lois Expérimentales et Droit Pénal”, in Boletim da Faculdade de Direito, vol. LXX, 1994, pp. 321-335). Just like legislative authorities who take “measures” in relation to situations that are neither general nor abstract, legislative authorities who “experiment” would appear to be motivated by a technical/economic rationality that is likely to be different from that which guides the “common” methods of producing legislation.
The decision which forms the object of the present appeal argues that these “experimental” methods warrant constitutional censure in their own right, because they are themselves discriminatory.
However, we have already seen that in the case before us this is not so; and while there is no doubt that the Court is not precluded from formulating findings based on grounds other than those invoked in an appeal (Article 79-C of the Law governing the Constitutional Court), the truth is that we cannot see what other constitutional rules and principles might warrant censuring the legislative authorities for adopting the “experimental” method as such.
The fact is – and the Court has already said so several times: see Ruling no. 1/97, for example – there are no rules in the Constitution which would mean that here in Portugal, the legislative function should be seen in a way that would exclude in advance certain contents instead of others. As the Court said in the above Ruling, neither the fact that the Constitution lays down the principle of the separation of powers (Article 111 of the CRP), nor the rules governing the division of the legislative function between the Assembly of the Republic and the Government (Articles 161, 164, 165 and 198 of the CRP), entail such an exclusion.
It may be otherwise in other legal systems, where on the contrary there may have taken root a certain constitutional concept of law whose content means that the system is likely to be averse to the technical/economic rationality which is inherent in “experimental legislation”. This would seem to be the case with French Law. Following a finding by the Constitutional Council, the French Constitution had to be revised in such a way that the current Article 37-1 includes an express authorisation for the legislative authorities to issue “experimental legislation” (in this respect, see Florence Crouzatier-Durand, “Reflexões sobre o Conceito de Experimentação Legislativa”, in Legislação, Cadernos de Ciência de Legislação, no. 39, January-March 2005, pp. 5-29). In Portuguese Law, on the contrary, such an express constitutional authorisation is not necessary; an authorisation along these lines is implicit in the open concept of law that is protected by the CRP.
It is clear that inasmuch as here in Portugal an “experimental law” is a law like any other – i.e. an expression of the activities in which the Constitution allows the legislative authorities to engage – it must never fail to obey the constitutional principles (organic, procedural, and material) that govern the whole of the legislative function. As such, apart from anything else we must bear in mind: that the legislative authorities of a democratic state governed by the rule of law can never shirk the duty – a duty that falls to them – to seek to create a Law which is, as far as possible, stable; that there may be certain domains in the legal system where the nature, intensity and importance of the legal assets protected by that area of the law mean that their content is hostile to the use of the “experimental” technique; that whenever such a technique leads to special burdens or costs for people or bodies, they should be reduced to the minimum possible, in accordance with the principle of proportionality; and finally, that for reasons of security, legislative authorities who “experiment” must in any case say that they are doing so, in such a way as to make it clear what are the temporal and spatial limits on the application of the rules that are subject to assessment in the “trial run” or “experiment”.
Given that all these conditions and limits are met in the case before us, there is no reason why the legislative authorities would deserve censure in constitutional terms.
For these reasons we hereby decide to uphold the appeal, and to send the decision against which it was brought back for revision in accordance with this finding that there is no unconstitutionality.
Lisbon, 31 January 2008
Maria Lúcia Amaral
Maria João Antunes
Carlos Pamplona de Oliveira
João Cura Mariano
José Borges Soeiro
Ana Maria Guerra Martins
Joaquim de Sousa Ribeiro
Mário José de Araújo Torres
Carlos Fernandes Cadilha
Rui Manuel Moura Ramos