In prior review cases, besides decisions of a procedural nature (particularly as to whether or not to admit a request), the Constitutional Court issues two types of ruling: it either pronounces the (total or partial) unconstitutionality, or does not pronounce the unconstitutionality, of each rule that is submitted to it.
When the Court pronounces a rule unconstitutional, the President of the Republic or the Representative of the Republic is obliged to veto the text in question and return it to the body that passed it, whereupon the latter must abide by the Court’s decision.
If the text is altered by the body that passed it and the rule or rules that were deemed unconstitutional are removed, or, in the case of the Assembly of the Republic or the Legislative Assemblies of the autonomous regions, despite the ruling that it is unconstitutional the text is confirmed by a qualified two thirds majority (Article 279 of the Constitution), the President of the Republic or the Representative of the Republic is then able to enact or sign it. This does not prevent the Constitutional Court from holding that such rules are unconstitutional later on, as part of other forms of reviewing constitutionality.
The last sentence is vague and I’m not certain what’s the point of allowing the law to pass with a 2/3 majority if it can be struck down by another constitutional review. Logically speaking, it must have some protection from constitutional challenge.
So far the legal opinions are addressing the 16 Feb retroactive date, as well as changing adjudication standards for currently pending applications, and it jives with my view that these are likely unconstitutional as previously stated.
I’m interested to see if the same applies for future, not-yet-pending renewals. I’ve not seen a legal opinion addressing that yet. If the interpretations of others on this forum hold, it would mean that Portugal must honor any recurring/renewable benefit (visa, pension, health benefits) in perpetuity without the ability to modify it, unless the legislators had the foresight to add a special clause indicating “renewals are only available if the law allows it when the renewal is applied for, not as written today”. In most jurisdictions I’ve done business in, this is implied and the default.
I think the point raised by the constitutional lawyers around transitionary periods is interesting. For example, the previous rule change had a 12 month transitory period, and that presumably passed any constitutional challenges. A 12 month transitory period would still be insufficient for my goals, obviously.
I’m going to ignore the repeated personal attacks on opinions people disagree with. It’s immature, childish and I’m not going to stoop down to their level.
I’m still skeptical that Portugal has no ability to change their GV rules in perpetuity for existing application, and the government appears determined to do so. I’m seriously considering another RBI scheme as a backup, as I have no interest in being toyed around with by the government for the next 5-7 year.
The worst case scenario for me, imho, isn’t if these rules are found constitutional this year. Rather, it’s the time cost of having invested 4-6 years into this (when I could have picked a different program) before the government manages to find a legal way to screw over my PR or citizenship application. Prior to this fiasco, I believed the odds of that happening to be negligible; I now think it’s prudent to prepare for that possibility.
I also think we should not call out people just because they have different opinion. We need all the opinions to move forward. We are in this together and he is not selling anything
It seems kind of shrewd of the govt to announce all applications after Feb 16 are invalid. Even if that doesnt work out for the govt legally, it will likely succeed in avoiding a rush of applications.
Of course, as soon as the Feb 16 cutoff is invalidated and the govt is forced to give 12 months notice, the problem will be even worse…
The uncertainty created by the government, combined with the potential need for a lawsuit to enforce your rights, is likely to have a chilling effect on those considering investing after Feb 16. This will partly meet their goals even if they backtrack.
Adding a dash of optimism, perhaps they’re hoping that their harsh statements on how pending applications will be converted will encourage existing pending applications to pull out, and some backtracking here might apply.
Still, this being their goal and the kind of tactics employed still concerns me.
identify scope of representation and legal budget
3a. Lawyer can collaborate with the existing team of industry leaders mentioned in another article (i forget who it all was but Madelena Monteiro was one of them).
communicate summary of above to GV participants (via NG, and other channels via large law firms)
based on budget and expected participation setup account to collect money (probably via lawyers bank to avoid FBAR issues).
Determine how to deal with “Free rider” problem.
Setup exclusive forum for paid clients to discuss progress.
Celebrate when government withdraws their unconstitutional plan.
Given the timing of things, I believe that this needs to be completed next week at the latest.
Based on a question I received, to clarify I dont think they would file a lawsuit immediately. So the initial scope would be to help influence the vote in parliament with the President, etc. If that fails we should be ready to proceed to protect our interests. So I would expect at the first budget would be small(er).
What GB lists is based on the idea of an ounce of prevention is worth a pound of cure. In other words, we need to get our current thinking (that changing the ARI scheme in any way for those who have applied and will apply until the new amendments goes into effect is not constitutional) validated by legal experts.
Then we work on the publication campaign in Portugal. We need to focus not only on the unconstitutionality, it civil litigation jeopardy of those involved in making such a change, and then changing the opinion of people of what the GV has done for Portugal, continues to do and making a radical change will cause investment flight.
We need to have people respond to this outline to ensure people are onboard. This is a group effort, not just a couple of people.
There is another legal opinion that’s being circulated, by Jorge Bacelar Gouveia, another constitutional law professor, dated 22nd March (before the most recent comments). I don’t know if I’m free to post it in full, but in summary he says that the previous proposals potentially violate (a) the principle of protection of trust in Article 2 of the constitution, (b) the principle of equality in Article 13, between foreigners and Portuguese citizens, (c) the right to private property in Article 62. Remedies would include appeal to administrative courts to annul legal changes, or for individuals to sue the state administration for compensation.
One point to make is that a lot of the legal work and analysis has already been done so there may not be a lot of point to paying to redo the exact same work.
There are industry groups already existing that are fighting but what we lack is someone who is representing our interests specifically (as opposed to fund managers, etc). The is a lot of overlap for sure so it is important to collaborate . It will add to the seriousness of the situation to have a lawyer clearly state “I have over 100 GV clients who are prepared to take this all the way and will demand reimbursement of all investments amounts plus GV costs and expenses” if this foolish and un Constituional plan goes forward.
Update. I have just written an email to the Servulo law firm. I am working angles with our GV law firm to see who they would recommend as well as Henley and Partners.
Jason Z, you reached out to which attorney? Filipe Eusébio?
Has anyone reached out to Jorge Miranda or Rui Medeiros? The other authors of the articles linked to and then translated and pasted in a post?
Hey Joel - my law school buddy got back to me and I will jump on a call with him tomorrow. Apparently his firm could take on such cases, but also he provided some colour on how things work in Portugal. So in Portugal the constitutional cases are adjudicated case by case instead of having a consolidated case like what people do in the US; still, the class action is not strictly so defined to be exactly the same like a US class action. I think what we can do is to basically let everyone file a case because each person’s situation is similar and similarly affected by the retroactive law (renewal, initial application, etc.).
He confirmed my presumption that these big wigs of Portuguese Constitutional Jurisprudence usually carry great weight and their interpretation could shape how amendments are done.
He’s a good guy and his dad regularly litigates administrative litigation, i.e., suits against the state, in Braga. He teaches part time in University of Porto.
Disclaimer - as impossibly innocent as this may sound, I honestly knew this guy from school days, and kept in touch since.
I finally read this petition in its entirety. It is not bad. I wish it was clearer about not changing the ARI scheme for those who applied or will apply by X date (understanding laws cannot be retroactive - Article 14 of the Constituion) and we are given a promise which we had confidence and trust in believing would not be pulled from us thus we spent our 100,000’s of Euros and are following the rules enshrined in law.
Yes, please keep us posted. I was wondering if that would be the case on Class Action. The USA has the great and glorious tort law which allows for class actions and makes everything in the US more expensive, but from which I made a lot of money as a subject matter expert. If we can somehow coordinate everyone filing on the same date should we get there, it would be a show of force and put huge pressure on the Government of Prime Minister Costa (government with the big G). Not the easiest feat. Let me work on pulling the logic of an argument together now. I am tied up again this afternoon and feel asleep on the couch last night reading the constitution. The main stuff we need is in the first 70 or so Articles. The rest might apply in how the legal and government (small g) works.
With this we have Rui Medeiros. We need to reach out to Jorge MirandaMade and now Jorge Bacelar Gouveia, another name which appears to be circulating a legal opinion which we need to incluence.
Are there other sites, that anyone knows about where Golden Visa Investors share information? We need to get the Petition published widely. Then, we will need to get people on board for the information / advocacy campaign to stop the changes to the entire ARI scheme prior to them even making it to a vote, so the parliament amends the laws and prevents all the law suits.
Agreed. Best to have influential people stop this in its tracks before litigation is necessary.
But if it does come to litigation, I am all in. I will be asking for a full refund of my investment plus all SEF and lawyers fees refunded to me. I will then go invest in a country where my investment is wanted.
