final decision on concrete measures to be taken at national level is adopted by the concerned Member States’ (ECB
Questionnaire
response,
p.
3,
available
at
https://polcms.secure.europarl.europa.eu/cmsdata/upload/f13d8652-15b7-4945-beb7ce52a447c7d7/att_20140114ATT77317-4182200006287211655.pdf) that have to ‘ensure that its obligations
regarding fundamental rights are respected’ (Commission Questionnaire response, p. 5, available at
https://polcms.secure.europarl.europa.eu/cmsdata/upload/db6df1cd-bcdf-437f-aa6e4f1aaa16f371/att_20140114ATT77315-2012338784114975647.pdf). On this topic, see Kilpatrick (2014: 394396).
LXI ECJ, Case C-346/05, Monique Chateignier, ECLI:EU:C:2006:711, at 18. See also ECJ, Case C-17/92, Teckal,
ECLI:EU:C:1993:172, at 8.
LXII ECJ, Case C-264/12, Fidelidade Mundial, EU:C:2014:2036, at 4, and ECJ, Case C-665/13, Via Directa,
EU:C:2014:2327, at 4.
LXIII ECJ, Case C-264/12, Fidelidade Mundial, EU:C:2014:2036, at 19, and ECJ, Case C-665/13, Via Directa,
EU:C:2014:2327, at 13.
LXIV ECJ, Cases C-8/15 to C-10/95, Ledra, ECLI:EU:C:2016:701, at 91.
LXV Joerges (2014: 44) identifies in the Portuguese Constitutional Court case law a 'signal' of judicial
opposition against the European crisis management, although it recognizes that it is a rather weak signal since
the implementation of austerity measures was objected on the basis of the violation of the principle of
proportionality and equality.
LXVI In this case, the Portuguese Constitutional Court limited the effects of the declaration of
unconstitutionality of the provisions that suspended the holiday and Christmas salaries in the public sector.
The Constitutional Court decision had no practical effects because the cuts were allowed to be applied until
the end of the tax year (which was the temporal limit for the State Budget Act for 2012). This was the
broader application ever adopted of Article 282 (4) of the Constitution. This provision allows the
Constitutional Court to restrict the effects of a decision of unconstitutionality based on ‘an exceptionally
important public interest’.
LXVII A thorough explanation in English of the most relevant decisions of the so-called “austerity case law” of
the Portuguese Constitutional Court was made by Canotilho, Violante and Lanceiro (2015: 155-183).
LXVIII In case 353/2012 (State Budget Act for 2012), the Portuguese Constitutional Court recognized that the
country was ‘in a very serious economic and financial situation, in which it (was) important to achieve the public deficit
objectives set out in the memoranda of understanding in order to ensure the financial solvability of the State’, but declared that
the austerity program had to be applied fairly. The Court did not adopt a 'crisis law' standard of adjudication
and refuse to accept the argument of the financial emergency of the State as a blank justification for austerity
measures (Urbano 2014: 14-15). Instead, it went through a case-by-case analysis of each measure, accepting
some (mostly transitory) and rejecting others, either because they breached the principle of equality, failed the
proportionality test or did not meet legitimate expectations. This case law was praised by some commentators
[the most notorious being Novais 2014], but criticized by others that accused the Court of inconsistency and
of engaging in judicial activism [Almeida Ribeiro and Pereira Coutinho 2014].
LXIX See, however, the second update of the MoU – quoted above in Section 1 – that requires the suspension
of the holiday and Christmas monthly salary payments in para. 1.8., i).
LXX In case 163/90 (23 May 1990), the Portuguese Constitutional Court recognized that it is bound by the
duty to refer preliminary questions to the Court of Justice foreseen in Article 267 (3) TFUE. Remarkably,
however, more than a quarter of Century later, the Court never had any doubts that required the preliminary
intervention of the Court of Justice. Not even when in Case 141/2015 (25 February 2015) declared that the
principle of equality (Article 13 of the Constitution) was breached by a provision that conditioned the grant
of a social benefit to a one-year minimum legal residence in the Portuguese territory. This decision was taken
with dissenting (Maria Lúcia Amaral) and even concurring opinions of judges (João Caupers) that argued that
a reference for a preliminary ruling should have been made in order to solve doubts on the scope of the
reasoning of the Court of Justice in Case C-333/13, Dano, ECLI:EU:C:2014:2358. In Case 283/81, Cilfit,
ECLI:EU:C:1982:335, at 16, the Court of Justice introduced an exception to the duty to refer when the
correct application of EU law is ‘so obvious as to leave no scope for any reasonable doubt’. The existence of doubts
regarding the interpretation of EU law in concurring and dissenting opinions is enough to trigger the duty to
refer of a national court ‘against whose decisions there is no judicial remedy under national law’ [Article 267 (3) TFUE].
This situation differs from the Case C-160/14, Ferreira da Silva e Brito, EU:C:2015:565, paras. 41-42, where the
Court of Justice devalued the importance of lower national courts adopting contradictory decisions on EU
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