Acórdão nº 00182/14.4BEMDL de Tribunal Central Administrativo Norte, 19 de Dezembro de 2014
Magistrado Responsável: | Luís Migueis Garcia |
Data da Resolução: | 19 de Dezembro de 2014 |
Emissor: | Tribunal Central Administrativo Norte |
F... – Engenharia e Construção, Ldª (NIPC 5…com sede na ….
) e Fundação Dr, CM (NIPC 5…,com sede no ….
), interpõem, cada uma delas, recurso jurisdicional de sentença proferida pelo TAF de Mirandela, em processo de contencioso pré-contratual, que julgou “a acção procedente anulando-se a decisão de adjudicação à contra interessada, assim como os demais actos que entretanto tenham ocorrido”, contra-interessada AOR & Filhos, Lda (NIPC 5…, com sede na Rua ….
).
Não foram apresentadas contra-alegações.
O Exmº Procurador-Geral Adjunto junto deste tribunal nada ofereceu em parecer.
Foram as partes confrontadas com questão de inadmissibilidade do recurso, ao que as recorrentes se pronunciaram.
*Em termos factuais, podemos assentar: 1º) – Na presente acção administrativa especial, com valor de € 137.040,00, foi proferida, datada de 03/09/2014, a decisão agora recorrida, cujos termos se têm presentes, na qual o Mmº juiz julgou “a acção procedente anulando-se a decisão de adjudicação à contra interessada, assim como os demais actos que entretanto tenham ocorrido” – cfr. decisão recorrida.
-
) – O que foi comunicado às partes, na pessoa dos seus mandatários, por ofício de 03-09-2014 – cfr. ofícios de not.
.
-
) – Ao que subsequentemente foi interposto recurso pela F... em 12/09/2014, e pela Fundação em 18/09/2014 (data de registo postal) – cfr. req.
.
*O direito A questão prévia.
Vejamos a suscitada questão de inadmissibilidade do recurso, em processo de contencioso pré-contratual de valor superior à alçada do Tribunal Administrativo de Círculo; presente que o tribunal superior não está vinculado ao despacho que admitiu o recurso - cfr. art. 641º, nº 5, do CPC; tem, pois, última palavra quanto à sua admissão, e em poder oficioso, com que o recorrente deve ser confrontado – art.º 146º, nº 3, do CPTA.
Nas acções administrativas especiais de valor superior à alçada, o tribunal funciona em formação de três juízes, à qual compete o julgamento da matéria de facto e de direito – art.º 40º, nº 3, do CPTA.
[Subjacente à razão de ser do preceito estará o facto de o legislador pretender compensar com a intervenção de um colectivo a impugnação de actos de órgãos superiores do Estado, cuja ilegalidade, no domínio da LPTA, era apreciada em primeira instância pelo STA (Neste sentido, cfr. MÁRIO AROSO DE ALMEIDA, Manual de Processo Civil, Almedina, 2010, pp.402-03). Para além desta razão material, o legislador acrescentou outra traduzida no valor da acção. São assim duas as razões que presidem à teleologia intrínseca do preceito: i) preservar a dignidade de actos praticados por órgãos superiores do Estado; ii) e o valor da acção” - voto de vencida da Exmª Fernanda Maçãs no Ac. do STA, de 05-12-2013, proc. nº 10360/13] Conforme reza o art.º 27º, nº 2, do CPTA, dos despachos do relator cabe reclamação para a conferência, com excepção dos de mero expediente, dos que recebam recursos de acórdãos do tribunal e dos proferidos no Tribunal Central Administrativo que não recebam recursos de acórdãos desse tribunal.
Como assinalam Mário Esteves de Oliveira e Rodrigo Esteves de Oliveira (in “Código de Processo nos Tribunais Administrativos”, Vol. I, anotação V ao art. 27º do CPTA, págs. 223 e 224) «Estes poderes do relator, alguns verdadeiramente decisivos – porque não apenas moldam mas, às vezes, definem o destino do processo ou do pedido, a sua procedência ou decadência – tinham de ter uma «válvula de escape» para assegurar que quem controla ou julga o processo é, em última instância, o tribunal colectivo, não um dos seus juízes. Daí que a possibilidade prevista neste n.º 2 de as partes reclamarem para a formação de juízes, para a conferência, dos actos e...
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