Not a ‘Usual Suspect’, but Definitely Noteworthy: The Portuguese Constitutional Court and its Landmarks

Catarina Santos Botelho & Marta Vicente

Universidade Católica Portuguesa & Universidade Católica Portuguesa

This contribution is aimed at unveiling Portugal’s constitutional landmark judgment(s). Selecting a landmark is obviously a methodological endeavour which requires legal scholars to identify and explain the criteria to be used in the process of narrowing down positive candidates. The “canonical” label must be an intersubjective conclusion. In our opinion, landmark judgments are cases where constitutional courts engage with social change by informally amending or validating innovation embedded in a polity’s constitutional culture and revealing its constitutional identity.

The Portuguese Constitutional Court (PCC) should undoubtedly be classified as a dutiful borrower of constitutional ideas actively engaged in both vertical and horizontal constitutional dialogue. Portugal does not belong to the “usual suspects”, a term used to name the jurisdictions most frequently travelled in the constitutional comparison journey. This arguably adds some challenges to the process of selecting landmark judgments, especially if one uses “influence abroad” as a relevant criterion. Yet, the PCC is no “yes-man” court and has taken its role as a “negative legislator” (Kelsen) very seriously. 

Adopted methodology

Our methodology for choosing the landmarks has followed three criteria. First, we have analysed the role of the judgment in furthering, sanctioning, or preventing social change. We refer to cases where the Constitutional Court, by asserting the unconstitutionality of the law, obliges the legislator to bring about social change, but also to cases where the Court either validates or prevents social change through judicial review. This goes by saying that landmark judgments are the ones prompting debates around judicial activism, the role of judicial review in liberal democracies, or the alleged usurpation of constituent power by the judiciary. From this perspective, one must assert that the PCC has never issued a judgment akin to Fourie in South Africa or Obergefell in the United States. In fact, it has never acted as a vehicle of social change, at least in constitutional issues involving a conflict between tradition and progressivism. 

According to the second criterion – innovation –, landmark judgments are the ones that bring about constitutional change by introducing a major legal principle or concept, by rejecting a constitutional amendment, by sanctioning a “constitutional dismemberment”, or by performing informal constitutional change (constitutional mutations or Verfassungswandlungen). This criterion encompasses timeless judgments, i.e., judgments that produce enduring effects in judicial practice or constitutional theory. 

The last criterion relates to “constitutional identity”, understood as the foundational values and principles of a polity. Although the criterion is controversial, as it paves the way for “judicial identity politics”, its ever-extending use by constitutional courts and by the Court of Justice of the European Union (CJEU) (Case C-157/21) helps to signal the hard-core provisions of a polity’s material constitution.

Applying this methodology to the Portuguese scenario, two rulings stand out: Ruling no. 121/2010, on same-sex marriage, and Ruling no. 422/20, on the meaning of constitutional limits to the principle of primacy of European Union (EU) law. Both judgments fulfil at least two of the three criteria described above. The first ruling was signalled by the PCC itself as an “historical landmark”. The second ruling was surprisingly left out of the landmark selection. However, we assume the PCC might have downplayed its external relevance and interest as internally, within the PCC previous case-law, the relationship between domestic constitutional law and EU law was never problematic per se. In fact, in Ruling no. 575/2014, the PCC mentions a “multilevel constitutional system, in which multiple legal orders interact” (par. 25) and, in Ruling no. 141/2015, that EU law binds the Portuguese legislative authorities (par. 7). 

Same-sex marriage (Ruling no. 121/2010)

Apart from abortion, euthanasia, surrogate motherhood and assisted procreation, same-sex marriage emerges as the most prominent example of the role the PCC has been playing when it comes to social change. At first, in the context of concrete review proceedings, the Court asserted that the inexistence of same-sex marriage was not discriminatory under article 13(2) of the Constitution (Ruling no. 359/2009, of the 9th of July). The PCC ruled that “there is nothing to prevent the appellants [a same-sex couple] from being able to form a ‘family’, even if they are not able to legally enter into marriage (par. 15)”. 

However, some months later, in a ruling issued in the context of prior review, the Court (although with several concurring and dissenting opinions) rejected that a new law admitting same-sex marriage violated the value of marriage and family as institutional guarantees (Ruling no. 121/2010, of the 8th of April). The Court emphasized that “there can be no doubt that the principle of equality (…) requires the legislator to treat that which is essentially equal equally, and to treat that which is essentially different differently. (…) That said, as the recognition of same-sex marriage is not a constitutional obligation, it is up for the legislator to uphold the similarities instead of the differences (namely the procreative potential of marriage), in other words, “to privilege the symbolic effect and optimise the anti-discriminatory social effect of its normative treatment by extending the protection of the unitarian framework of marriage to such unions (par. 26)”.

Therefore, for the Court, within the axiological framework of the Constitution, balancing judgments dividing the community go “far beyond the domain of judicial review”. The idea that the introduction of same-sex marriage, despite its centrality to the community, is a matter for the democratic legislator is rather revealing in terms of constitutional culture. In fact, in other jurisdictions, exclusion of same-sex couples from marriage was considered offensive of the equal dignity of homosexuals, by perpetuating the idea that they are “biological anomalies” and less worthy of recognition.

This ruling flawlessly illustrates the phenomenon of constitutional mutation (Verfassungswandel). Constitutional mutation also favours constitutional evolution, but through a slower path and taking into consideration societal and cultural changes. Throughout a constitutional mutation, the constitutional interpreter confers a different meaning to the constitutional text, without formally altering it. One might question, in this sense, whether the proposition that same-sex marriage is an issue for the democratic legislator remains valid at the time of writing, or, arguably, whether another constitutional mutation has taken place since 2010, in the sense of envisaging same-sex marriage as a social acquis that can no longer be withdrawn without unconstitutionality. 

Primacy of EU law (Ruling no. 422/20)

Ruling no. 422/20, of the 15th of July, also ranks substantially well, at least under the second and third criteria. It is a judgment where the PCC openly addresses the limits to the principle of primacy of EU law, enshrined in the last part of article 8(4) of the Constitution. The central issue of the appeal was a request to have a rule of secondary EU law – along with the interpretative meaning established by the CJEU – scrutinised by the PCC. It was argued that the rule breached the constitutional principle of equality (Article 13 of the Portuguese Constitution). 

As amended in 2004, Article 8 (4) of the Portuguese Constitution establishes the primacy of EU law – “The provisions of the treaties that govern the European Union and the norms issued by its institutions in the exercise of their respective competences are applicable in Portuguese internal law in accordance with Union law” –, but it then introduces a limitation (a counter-limit) to supremacy: “with respect to the fundamental principles of a democratic state based on the rule of law”. Since then, the Portuguese scholarship debates whether EU law has primacy over domestic constitutional law. 

In a unanimous decision (a rather exceptional occurrence when considering polemic topics in jurisdictions that allow separate opinions), the Court provided a “constitutional criterion”, with the aim of generality, to define the situations where, notwithstanding the principle of primacy, the Court would keep its jurisdiction to assess whether a EU norm violated the “fundamental principles of the democratic state based on the rule of law”. The criterion is the following: reviewing the constitutionality of EU law is no longer possible, provided EU law has a parameter functionally equivalent to the one recognized in the Portuguese Constitution. 

Contrary to what happened in other Member States (as in Italy, with the “dottrina dei controlimiti”), the Court did not use the concept of constitutional identity to reclaim sovereignty vis-à-vis EU law, but rather to stress that the European project markedly shapes the form of the Republic. Although the judgment did not amount to an internal “paradigm shift” (as the Portuguese case-law reveals no meaningful objections to the principle of primacy), it aligned the Portuguese Constitution with the EU’s material constitution, practically eliminating the scope of application of any doctrine of counter-limits. The PCC’s ruling might be criticized for assuming a “presumption of compatibility as regards the protection of fundamental rights”. Still, the unassumingness maturity of the PCC in opting for a horizontal dialogue instead of engaging in vertical “which court is more powerful?” arguments should very well be exported to other jurisdictions belonging to the EU.  

To sum up, this contribution has endeavoured to show that landmark judgments are a fascinating subject and a valuable tool for improving comparative dialogues and cross-jurisdictional transfers. As the PCC’s decisions are frugally cited abroad, our task of selecting a landmark judgment became more daunting. In the end and after much reflection, we’ve selected two landmarks (instead of just one). What exactly is so special about these cases? From an internal perspective, the same-sex marriage judgment is definitely a landmark case, not only because of the topic but also because of the way it unveils a constitutional mutation. On the other hand, and from an external or European perspective, the Primacy of EU Law case is the perfect example of an “exportable” landmark, with far-reaching legal and political effects. 

Catarina Santos Botelho is a Professor of Law and Chair of Constitutional Law at Porto Faculty of Law, Universidade Católica Portuguesa.

Marta Vicente is a Professor of Law at Porto Faculty of Law, Universidade Católica Portuguesa.

Suggested Citation: Catarina Santos Botelho and Marta Vicente, ‘Not a ‘Usual Suspect’, but Definitely Noteworthy: The Portuguese Constitutional Court and its Landmarks’ IACL-AIDC Blog (26 October 2023) https://blog-iacl-aidc.org/2023-posts/2023/11/2/not-a-usual-suspect-but-definitely-noteworthy-the-portuguese-constitutional-court-and-its-landmarks