Collective actions are permitted under a number of different procedures. Under the ação popular, actions may be brought by individuals and associations to prevent infringements of public law matters, such as health, environment, quality of life, consumer protection and cultural heritage. In addition, joint and group actions are permitted, under which the claims of individuals with common or related issues may be heard together. Collective actions are gradually becoming more common in the civil jurisdiction.
What forms of collective actions are permitted in this jurisdiction and under what authority?
In Portugal, civil class actions and representative actions are permitted under article 31 of the Code of Civil Procedure, which is itself based on article 52, paragraph 3 of the Constitution of the Portuguese Republic. This procedure is known as the ação popular, which is regulated in detail by Law no. 83/95, of 31 August, as amended by Decree-law no. 214-G/2015, of 2 October (“Law 83/95”).
According to the relevant provisions, an action may be brought by any person, association or foundation (but not companies or professionals), city council or by the public prosecutor to prevent infringements of the following: public health, environment, quality of life, goods and services consumer protection, cultural heritage and public interests. This statutory mechanism also encompasses the right for the potential plaintiff to obtain compensation for loss suffered. In addition, specific statutory provisions provide for collective actions in particular areas (e.g. under the Securities Code).
Group actions are possible under the Portuguese Code of Civil Procedure. In this case, court proceedings are brought by a number of individual claimants concerning related or common issues, which are heard together.
Joint actions are possible under the Portuguese Code of Civil Procedure. Article 267 of the Code of Civil Procedure allows the judge to join different cases when the involvement of all the interested parties is necessary to retain the useful effect of the decision or when different claims have the same grounds or are interrelated. This is the case even when the cases are pending before different courts. However, for this mechanism to be applicable, each plaintiff must have initially commenced his own separate proceedings.
Who may bring them?
An ação popular may be brought by individual claimants or by an interested organisation, such as an association, foundation or city council, as outlined above.
However, in order for associations or foundations to be eligible to bring such proceedings, Portuguese law requires that the association or foundation has certain compulsory features. It must:
- have legal personality;
- expressly include in its articles of association objectives for the defence of relevant interests in these types of actions; and
- not carry out any kind of professional activity competing with companies or independent professions.
As for the city council, it may only bring such proceedings if they are related to interests of the residents in their particular area.
Opt in or opt out?
Judge or jury?
What relief may be obtained?
How are such actions funded?
The general rule is that the losing party is obliged to pay the court fees of the successful party, but not lawyers’ expenses or fees or other costs incurred in conducting the trial.
However, specific benefits are available to the claimant, as the law provides for an exemption from court fees if the claimant is partially successful and, even if the claimant is unsuccessful, the judge may reduce the amount that the claimant has to pay in court fees by between 10 per cent. and 50 per cent. in light of its economic situation and the reasons why the proceedings failed.
In Portugal, contingency fees are not permitted, although the outcome of the proceedings may be considered when establishing lawyers’ fees.
In addition, government funding from the Ministry of Justice may be available to potential claimants in collective actions.
Is pre-trial disclosure available?
It is not possible to obtain an order for pre-trial disclosure of documents. Nonetheless, where there are grounds to believe that any documents in the possession of a future counterparty may be destroyed or become unavailable for any reason, it is possible to apply for an injunction to gain access to those documents with a view to initiating future judicial proceedings. Where such an injunction is granted, parties are obliged to provide the information and documents requested.
Pre-trial witness depositions may be obtained as in any civil action, that is, where there is justified concern that it may subsequently become impossible or very difficult to obtain a statement from the witness in question.
Likely future scope and development?
Significant cases of interest in this regard include a representative action brought in 1999 by the Portuguese Association for Consumer Protection (Associação Portuguesa para a Defesa do Consumidor) against Portugal Telecom regarding an “activation fee” which was levied every time the consumer tried to make a call. In 2003, Portugal Telecom was found to have breached its contract with its customers by charging this fee. By way of compensation, all potential claimants were permitted to make free calls for a certain period. Additional damages were calculated on a statistical basis, and Portugal Telecom was obliged to deposit indemnity funds in court. In order to receive those amounts, each individual claimant then had to apply to court, proving its own loss.
Although collective actions are already recognised and used in public law matters, they are gradually beginning to be brought under the civil jurisdiction.