The publication of national examination grades is a decisive stage in the academic journey of thousands of Portuguese students. It is through these grades that access to higher education is either enabled or prevented, influencing family decisions, travel arrangements, enrolments, accommodation and, in many cases, carefully planned life projects.
The publication of incorrect grades, the assignment of a “suspended” grade status to a significant number of students, and the resulting delay in making the final grades available have caused considerable public concern. In addition to the emotional and organisational impact experienced by students and their families, the situation has highlighted a particularly relevant legal question: may the State be held civilly liable for the damage caused by these delays?
The Legal Framework Governing State Liability
The non-contractual civil liability of public entities is enshrined in Article 22 of the Constitution of the Portuguese Republic, under which the State and other public entities are liable for damage arising from acts or omissions committed in the exercise of administrative functions.
This principle was implemented by Law no. 67/2007 of 31 December, which establishes the Regime Governing the Non-Contractual Civil Liability of the State and Other Public Entities. This legislation provides that public entities are liable for damage caused by unlawful and culpable acts committed by their bodies, officials or agents, as well as by the abnormal functioning of public services.
In this context, it is necessary to determine whether the events that occurred during the national examination grading process may amount to the abnormal functioning of the public education service.
The courts have held that the abnormal functioning of a service occurs where the Public Administration fails to act in accordance with the standards of efficiency, diligence and regularity that may legitimately be expected of it.
In the present case, should it be confirmed that IT errors, procedural failures or deficiencies in the management of the process resulted in the publication of incorrect grades, the suspension of those grades and the delay in publishing the final grades, this requirement may be satisfied.
It should be recalled that national examinations form part of a highly regulated and predictable administrative procedure, and the responsible entities are required to ensure that effective control and validation mechanisms are in place before the results are published.
Potentially Compensable Damage
The mere existence of an administrative failure does not, in itself, give rise to a right to compensation.
Under the law, it will be necessary to establish the existence of an unlawful act or the abnormal functioning of the service, the occurrence of actual damage, and a causal link between the two.
The damage eligible for compensation may be both pecuniary and non-pecuniary in nature.
Pecuniary Damage
The financial losses that may be claimed include, in particular:
- additional expenses arising from the need to change previously booked travel or accommodation;
- loss of the cost of booked and non-refundable holidays;
- costs associated with postponing travel to university;
- additional expenses relating to temporary accommodation;
- expenses incurred in obtaining specialist advice or urgently obtaining documentation.
Naturally, such losses must be duly substantiated by documents, invoices or other forms of evidence.
Non-Pecuniary Damage
The situation may also give rise to damage of a non-pecuniary nature.
The period for applying to higher education is widely recognised as a time of considerable emotional pressure for students and their families. Uncertainty regarding grades, the inability to confirm application choices, and the fear of losing a place or of a delay in starting university may, in certain circumstances, be sufficiently serious to justify compensation.
It should, however, be emphasised that not every instance of anxiety or inconvenience is legally compensable. The courts require non-pecuniary damage to be objectively serious enough to warrant compensation.
The Question of Access to Higher Education
One of the principal concerns relates to the possible impact of the delay on the higher education application timetable.
Should a student effectively lose the opportunity to enrol in their chosen course as a direct result of the delay in the final determination of their grades, this would constitute a more legally complex and potentially more serious scenario.
In such circumstances, the issue of the so-called “loss of opportunity” or “loss of chance” may arise. This concept has been progressively recognised by the Portuguese courts in certain circumstances, although the requirement to establish a causal link continues to be applied particularly strictly.
It will be necessary to demonstrate that there was a serious and consistent probability of obtaining the favourable outcome in question and that this opportunity was lost as a direct consequence of the administrative action.
Any claim for compensation will always depend on specific evidence of the losses suffered. It is not sufficient to allege that there was a delay or administrative disorganisation. It will be necessary to demonstrate the damage actually suffered and when it occurred, as well as how it resulted directly from the actions of the Public Administration, and to assign it an economic value, where applicable.
Indeed, this evidential requirement frequently constitutes the principal challenge in administrative civil liability proceedings.
What Should You Do if You Were Affected by the Delay in the Publication of National Examination Grades?
Although any potential liability on the part of the State will depend on an assessment of the specific circumstances of each case, students and their families who consider that they have suffered losses as a result of the delay or suspension of national examination grades should immediately take preventive measures to safeguard their rights. In particular, they should retain all relevant documentation capable of proving both the events that occurred and the losses suffered.
Where financial losses have arisen as a result of changes to or cancellations of holidays and travel, lost or postponed university accommodation bookings, additional transport expenses, or other costs directly related to the delay in the publication of grades, these should be properly documented.
It is also advisable to prepare a chronological record of events, specifying the dates on which the grades were published, suspended or corrected, as well as the specific impact that these circumstances had on the organisation of the higher education application process or on family life.
The civil liability of the State always depends on an assessment of the specific circumstances of each case. Students and their families who consider that they have suffered significant damage should therefore seek specialist legal advice in order to determine whether the legal requirements for bringing a potential claim for compensation are satisfied and which strategy is most appropriate for protecting their rights.
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The content of this information does not constitute any specific legal advice; the latter can only be given when faced with a specific case. Please contact us for any further clarification or information deemed necessary in what concerns the application of the law.