Information Note on the Court’s case-law No. 151
April 2012
Liga Portuguesa de Futebol Profissional v. Portugal (dec.) - 49639/09
Decision 3.4.2012 [Section II]
Article 35
Article 35-3-b
No significant disadvantage
Failure to communicate opinion of Attorney-General’s Department at Supreme Administrative Court to complainant: inadmissible
Facts – Following non-payment by professional football clubs of amounts due to the tax authorities, an agreement was signed with the applicant association, the organiser of professional football championships, and the Portuguese Football Federation; one of its clauses provided that if the amounts paid to the tax authorities by the clubs were insufficient to cover half the amounts owed, the applicant association and the Federation would be liable to pay the outstanding amount. In December 2004 the tax authorities informed the applicant association that it was liable to pay approximately twenty million euros. In April 2005 the applicant association brought an action in the Central Administrative Court for annulment of that clause. The applicant association’s claims were rejected in November 2006 and it lodged an appeal with the Supreme Administrative Court. In March 2007 the official of the Attorney-General’s Department at the Supreme Administrative Court submitted his opinion, which concluded that the appeal was ill-founded. The applicant association was not notified of the opinion. In May 2007 the Supreme Administrative Court rejected the appeal. On learning from the judgment of the existence of the opinion of the Attorney-General’s Department, the applicant association lodged an application for the judgment to be set aside on the grounds that there had been a violation of the principle of a fair trial. That application was rejected, as was the ensuing appeal to the Constitutional Court.
Before the European Court, the applicant association complained of a violation of the adversarial principle on the ground that it had not been provided with the opinion of the representative of the Attorney-General’s Department at the Supreme Administrative Court.
Law – Article 35 § 3 (b): The sum claimed by the tax authorities and giving rise to the proceedings could not be deemed to constitute a “disadvantage” within the meaning of Article 35 § 3 (b). The question was whether the failure to communicate the opinion of the representative of the Attorney-General’s Department at the Supreme Administrative Court could have caused the applicant association a potentially significant disadvantage. That succinct opinion had merely considered that the decision at issue had correctly interpreted the applicable law. No new issue that might have called for comments by the applicant association had been raised.The applicant association had not been able to demonstrate that it would have been able to provide any new and relevant elements in response to the opinion for the purposes of consideration of the case. In those circumstances, the applicant association had not suffered a “significant disadvantage” in the exercise of its right to participate adequately in the proceedings at issue.
The respondent State had taken general measures to ensure that parties were provided with opinions of the Attorney-General’s Department. In those circumstances, and given that the Court had on various occasions ruled on the issue raised in this case*, it could not be held that the application raised serious issues concerning the application or interpretation of the Convention, or serious issues of domestic law. Consequently, respect for human rights did not require an examination of the application.
The applicant association’s objections concerning the rights and obligations arising out of the implementation of the order at issue in respect of it had been raised in three domestic courts. Furthermore, the requirement that the case be “duly examined” could not be interpreted as strictly as the requirement that the proceedings be fair, since Article 35 § 3 (b) did not contain the term “examined fairly”. Therefore, the applicant’s case had been duly examined.
Conclusion: inadmissible (no significant disadvantage).
* See, in particular, Ferreira Alves v. Portugal (no. 3), no. 25053/05, 21 June 2007, Information Note no. 98.
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This summary by the Registry does not bind the Court.
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