Lawful Alternative Conduct by the Administration in the State’s Non-Contractual Liability for Unlawful Acts, with Special Regard to the Paradigmatic Case of Formal Defects

In her latest article published in Revista O Direito, Marta Cortez offers an in-depth examination of the State’s non-contractual liability, focusing on the concept of lawful alternative conduct and its implications for the protection of individual rights and the principle of legality in administrative action.

Marta Cortez, trainee lawyer at Morais Leitão, is the author of the article “Lawful Alternative Conduct by the Administration in the State’s Non-Contractual Liability for Unlawful Acts, with Special Regard to the Paradigmatic Case of Formal Defects”, recently published in revista O Direito (Year 157, 2025, Issue III).

In her paper, Cortez examines the negative relevance of lawful alternative conduct within the scope of the State’s non-contractual liability for unlawful acts, focusing especially on those cases where liability stems from formal defects in administrative action. She argues critically that the concept is better placed in the assessment of compensable damage rather than in establishing the causal link.

The article identifies the essential conditions under which lawful alternative conduct may exclude the right to compensation, and posits that the burden of proof should lie with the Administration. Through a detailed analysis of administrative jurisprudence, Cortez shows that the prevailing interpretation currently adopted tends to distort the role of this exception—thus undermining the protection of individual rights and weakening the principle of legality in administrative conduct.

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Read the full article in the attachment below.