Transport Law – Public transport
Legal Regime governing Public Passenger Transport Services (RJSPTP);
Exclusive and semi-exclusive constitutional competences;
Interdependency of competences;
Competence of local authorities;
Coordination of national and local policies.
RULING No. 40/17
9 of February of 2017
The Constitutional Court (TC) found no unconstitutionality in norms included in the legal precepts of the Law approving the Legal Regime governing Public Passenger Transport Services (RJSPTP) and its Annexe, under which the state: is transitionally the competent transport authority for all public passenger transport services in the Lisbon and Porto Metropolitan Areas and the Lower Mondego Intermunicipal Community; transitionally possesses the competence to operate the light metro service on the south bank of the Tagus; and is the transitional holder of the transport concessions for those regions.
The state possesses sufficient legitimacy to entitle it to act jointly with local authorities in the land and river transport domain. That domain transcends the universe of the specific interests of local communities, because it impacts matters with links to supralocal and general collective interests for whose fulfilment the Constitution holds the state (alone or in conjunction with others) responsible. There is an institutional guarantee of local autonomy, but one cannot use it to infer that the Constitution reserves certain areas of competence to local authority entities in accordance with a model that imposes a rigid separation between certain spheres of interest and certain powers and responsibilities. The model that is expressly derived from the Constitution is one whereby the competences and powers to act of the various different public entities are interdependent, and those entities are jointly charged with satisfying the population’s basic needs – needs whose fulfilment is a fundamental right. The legislator has acknowledged both the need to coordinate national and local policies in the field of the land and river transport of passengers in the country’s major urban agglomerations – especially Lisbon and Porto and their metropolitan areas – and that passenger transport systems, spatial planning, urban planning and the environment are closely interlinked.
The particular stage legislation has attained at a given point in its evolution does not imply that a certain solution is forever set in stone as the only one with constitutional validity. There is no constitutional obstacle to withdrawing competences that have already been granted to local authorities, and the legislator is not a priori precluded from increasing the extent of the state’s interventions. In this context, and inasmuch as the interests at stake in the present case were not specifically and exclusively reserved to local authorities, there was therefore no point in asking whether the norms represented a legislative reduction in the responsibilities, powers or competences pertaining to those authorities.
Regardless of any possible interpretations of the infra-constitutional aspects of the case, when it comes to the question of which entity(ies) is(are) in a position to grant concessions for transport operations the Constitution does not prevent a reduction in municipalities’ responsibilities, powers and competences with regard to public transport.
This ex post facto review was requested by a group of Members of the Assembly of the Republic (Parliament) belonging to the Socialist Party. As the originator of the norms in question, the Assembly of the Republic was the respondent in the case, but declined to make any additional submissions to the Constitutional Court.
The question of constitutionality before the Court was whether the ways in which the norms distributed powers, responsibilities and competences between the state and municipalities was unconstitutional.
The Legal Regime governing Public Passenger Transport Services (RJSPTP) says that the various transport authorities with competence in the field of public passenger transport services are the state, municipalities, intermunicipal communities, and the Lisbon and Porto Metropolitan Areas. It also sets out their responsibilities, powers and competences.
In particular, it makes the state the competent transport authority with regard to: public passenger transport services with a national scope; heavy rail transport; transport operated in the Lisbon and Porto Metropolitan Areas and the Lower Mondego Intermunicipal Community under the terms of concessions between the state and pre-existing internal operators1, until such time as the latter’s public service relationships come to an end; operation of the light metro service on the south bank of the River Tagus, which was established by competitive public call for tenders before the RJSPTP entered into force, until the existing contractual relationship comes to an end; express transport; and transport with an international scope.
In other words, there are a number of situations in which the RJSPTP temporarily and transitionally makes the state the transport authority with competence for the various public passenger transport services identified in the Law, until certain pre-existing public-service relationships and contracts with operators come to an end, after which that authority will pass to other entities (municipalities, etc.).
As such, without prejudice to the temporary effects of the transitional norms, the RJSPTP says that municipalities are the competent transport authorities when it comes to municipal public passenger transport services – i.e. services that are designed to fulfil needs for travel within a given municipality and take place wholly or mostly within its geographic area. Also without prejudice to the state’s transitional competences, intermunicipal communities are the transport authorities with competence for the intermunicipal public passenger transport services that occur entirely or largely within their geographic area – i.e. services which are intended to satisfy needs for travel between different municipalities and all or the majority of which are provided within the geographic area of a given intermunicipal community. Again subject to the transitional nature of the state’s competences in this regard, the Lisbon and Porto Metropolitan Areas are the transport authorities with competence in relation to the intermunicipal public passenger transport services that take place wholly or mostly within their respective geographic areas – i.e. the services designed to fulfil travel needs between different municipalities located entirely or largely within a given metropolitan area.
The responsibilities of transport authorities include defining the strategic objectives of the mobility system, and planning, organising, operating, inspecting, publicising, developing, funding, investing in and defining the purposes of the public passenger transport service using road, river, rail and other transportation systems.
In the case of certain municipal and intermunicipal public transport services, the legislator transitionally (until the pre-existing public service relationships and contracts come to an end) attributed this transport authority role to the state. The Court said that it was important to determine whether the way in which the norms that confer this authority on the state and thus share it out among different entities was in breach of the Constitution – i.e. whether they distribute powers, responsibilities and competences between the state and municipalities in a manner that should be deemed unconstitutional.
The petitioners postulated the existence of a general constitutional principle under which any “unjustified reduction in the powers, responsibilities and competences of local authorities is prohibited”, and that the rule is that in this situation there is: a principle of subsidiarity, whereby the only responsibilities, powers and competences that are reserved to the central administration are those that local authorities are not in a position to exercise or undertake; and a principle of universality, whereby local authorities are generally and fully competent with regard to everything that is not attributed to the central administration by law. They considered that these principles meant that local authorities’ powers and responsibilities cannot be reduced except in cases of manifest need and in accordance with criteria of proportionality, failing which there would be a violation of both the local autonomy already acquired by such authorities, and the principle that the state must be organised in a decentralised manner. They argued that the RJSPTP norm was in breach of this general principle and rule.
In past cases the Constitutional Court had already recognised the existence of domains – examples include promoting housing, spatial planning, urban planning and environmental management – that cannot pertain solely to local authorities, inasmuch as they entail matters which must be pursued in connection with the national interest. The uncompressible space in which local authorities are autonomous is that occupied by matters which specifically pertain to local affairs. These involve only those tasks whose roots lie in the local community, have a specific relationship with it, and can be autonomously handled by it. Particularly in the densely populated areas that are large cities and their metropolitan areas, the road and river passenger transport domain is indissociably linked to the domains of the promotion of housing, spatial planning, urban planning and the environment. The close connection between these domains is recognised in the Constitution itself, which, in order to ensure fulfilment of the right to housing, charges the state with programming and implementing a housing policy incorporated within general spatial plans and supported by urban plans that ensure the existence of an adequate network of transport and social facilities.
The Court thus denied the existence of a general principle as formulated by the petitioners, rejected their arguments and found no unconstitutionality in the norms before it.
The Ruling was unanimous.
Constitutional Court Rulings nos. 432/93 (13-07-1993); 494/15 (07-10-2015, included in the selection sent to the Venice Commission with regard to September-December 2015); 296/13 (28-05-2013); and 39/17 (09-02-2017).
Constitutional Commission Opinion no. 3/82 (published in Pareceres da Comissão Constitucional, vol. 18, p. 141).
Judgement of the Federal Constitutional Court of Germany no. 15 of 30 July 1958, in Entscheidungen des Bundesverfassungsgerichts, vol. 8, p. 134.
1 An ‘internal operator’ is a public-service operator that is a legal entity which is distinct from the entity with authority over the applicable form of transport, but over which the latter, as part of its local, regional and/or national competences, exercises a control analogous to that which it exercises in relation to its own departments and services.