Issue Note Portugal Procedural Safeguards
By Suzana Tavares da Silva, Country Reporter for Portugal, and Marta Vicente, Assistant Country Reporter for Portugal.
This Issue Note examines the procedural safeguards applicable to the screening of foreign direct investments in Portugal, with a focus on transactions involving the acquisition of control over strategic national assets by non-EU or non-EEA entities under Decree-Law No. 138/2014. The Portuguese legal framework ensures that these screening procedures adhere strictly to national constitutional guarantees and European Union standards, including those set out in the Charter of Fundamental Rights.
Key procedural rights discussed include the right of access to administrative files and transparency, which grants universal access to documents. This is supported by urgent judicial mechanisms and independent oversight by the Commission for Access to Administrative Documents. The report also emphasises the right to be heard, ensuring that interested parties can participate in the process and present their arguments before a final administrative decision is made. Furthermore, any administrative decision opposing an investment must be thoroughly reasoned both legally and factually to permit effective judicial review.
Additional safeguards include the right to an impartial decision within a reasonable timeframe of 60 days — where administrative silence equates to non-opposition — as well as guarantees of equal treatment and state civil liability. Finally, the authors acknowledge the ongoing challenges associated with conducting judicial reviews of complex, highly technical and politically sensitive screening decisions.
