Home Opinion The importance of the suspensive effect

The importance of the suspensive effect

Chan Weng ManChan Weng Man*
Chan Weng Man

Bidding in the public tender for new gaming licenses was completed in mid-September. Seven bids were accepted to compete for six licenses.

Would this mean that a bidder would necessarily be disappointed? Or, as they say, could there have been a “Strong Alliance” of gaming operators? Only the outcome of the tender could tell who would win the six new gaming licenses.

According to Law No. 16/2001 on the Legal Framework for casino gambling, as amended by Law No. 7/2022, after the opening of the bids, a series of verification procedures followed, and the provisional awarding of the casino gambling concessions was made by order of the Chief Executive, issued on a reasoned report.

According to Article 110 of the Administrative Procedure Code, the act of awarding by the Chief Executive is an administrative act which, once executed, binds the administrative authority itself as well as the counterparty.

It is true that, according to Article 117 of the Administrative Procedure Code, the administrative act produces its effects from the date it is performed, except in cases where the law or the act itself grants retroactive or deferred effectiveness.

However, we cannot ignore the administrative and/or judicial remedies granted to interested parties in the Administrative Procedure Code and the Contentious Administrative Procedure Code, in particular the preventive and conservatory procedures for suspending the effects of administrative acts, with the aim of preventing their immediate enforcement.

There are safeguards for the suspension of effects of administrative acts, both at the administrative level and at the judicial level.

However, many people do not understand that the interposition of suspension of the effects of administrative acts is not a necessary and incidental effect of the main proceedings.

At the judicial level, an individual who disagrees with an administrative act may file a contentious appeal against the act in question.

However, the contentious appeal does not suspend the effectiveness of the contested act, except when, cumulatively, only the payment of a fixed amount is at stake, without the nature of a disciplinary sanction, and a bond has been provided in any of the forms established in the tax procedure law or, in its absence, in the form established in the civil procedure law for the provision of a bond in common precautionary proceedings (Article 22 of the Code of Contentious Administrative Procedure), or when the law expressly provides for the suspensive effect.

For example in judicial appeals against disciplinary proceedings, such as the suspension of lawyers’ functions (Article 10(4) of the Lawyer’s Statute and Article 44(3) of the Lawyers Disciplinary Code), and in judicial appeals against orders to demolish construction work without a permit (Article 52(7) of Decree Law 79/85/M of 21 August on the Urban Construction Legal Regime).

In addition to the above, an appeal does not suspend the effectiveness of the act.

In order to avoid the execution of the act, the private party must request the suspension of its effects.

With reference to the award made by the Chief Executive by order dated May 10, 2016 in relation to “C385R – Light Rail Depot Superstructure Construction Project”, the company China Road and Bridge Corporation was ranked 2nd and claiming that the Administration failed to observe the evaluation criteria formulated in the Consultation Announcement and the Tender Program, that it misinterpreted the criteria, and that it incurred the defect of violation of law, filed a contentious appeal for annulment to the TSI, dissatisfied with the award made by the Chief Executive.

The TSI judges agreed to uphold the contentious appeal and annul the awarding act performed by the Chief Executive, stating that the defendant must recalculate the final score obtained by the invited companies in accordance with the above decision, determine which company obtained the highest score, and award, once again, the respective contract.

However, as China Road and Bridge Corporation did not request the suspension of effectiveness of the administrative act when it filed the contentious appeal for annulment to the TSI, and the construction of the superstructure of the Material Park and Workshop of the Light Rail System was completed by China Engineering and Construction Company (Macao) Limited while the appeal was pending.

In other words, since China Road and Bridge Corporation did not apply for a stay of the administrative act, the construction work was eventually completed.

Even if the TSI decided to grant the contentious appeal, it was no longer possible to re-award the contract. In conclusion, it is important to recognize that the request for suspension of effectiveness is not a necessary and incidental effect of the main proceedings.

*Student Lawyer at Rato, Ling, Lei and Cortés (Lektou)

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