Collective Redress & Class Actions 2023 Comparisons

Class actions as an instrument for collective protection date back to ancient Rome and roman law. They have been enshrined in the Portuguese legal system since at least the 16th century, albeit in different forms and scopes. The Constitutional Charter of 1826 was the first Portuguese constitutional instrument to refer to class actions. In 1976, class actions became a fundamental right of all citizens in the Portuguese Constitution, either personally or through associations for the defence of their interests. The constitutional amendments of 1989 and 1997 significantly broadened the scope of class actions. Today, the general legal framework for class actions is set out in the Class Action Act (83/95).

In addition to class actions, there are collective redress mechanisms which, in civil cases, are provided for in the Portuguese Civil Procedure Code.

Class actions in Portugal are not modelled on the regime of another country, such as the US, the UK and Australia. Although they were inspired by the regimes of other countries, there are several specificities of the Portuguese regime which will be analysed below.

Portugal has transition steps underway to implement the EU Directive on Representative Actions (EU 2020/1828) (RAD). On 29 September 2023, the Portuguese Parliament authorised the government to transpose RAD into national law (Draft Law 92/XV/1). The draft law includes the proposed draft bill.

Although Portugal already has a procedural mechanism for collective actions at national level, enshrined in the Class Action Act (and also the Code of Civil Procedure), aimed at protecting various interests, including those related to the consumption of goods and services by consumers, this new draft bill establishes a specific mechanism for national and cross-border collective actions to protect the rights and interests of consumers. However, the Class Action Act remains in force and the draft bill expressly provides that the provisions of the Class Action Act will apply to anything not provided for in the draft bill.

With regard to the legal standing of associations and foundations, the draft bill adds new requirements to those already contained in the Class Action Act. Additionally, it will be the responsibility of the Directorate General for the Consumer (DGC), under the draft bill, to designate the entities qualified to bring cross-border collective actions in other member states. These bodies must meet several requirements as set out in the draft bill, and their compliance must be re-evaluated every five years. Regardless of whether other public entities are designated as such, the Public Prosecutor’s Office and the DGC are considered qualified entities for the purpose of bringing transnational collective actions.

The draft bill also regulates the bringing of cross-border collective actions before national courts by qualified entities from other member states. It provides, inter alia, that such entities may seek prohibitory or remedial measures, including through the same collective action.

Like the Class Action Law, the draft bill contains an opt-out regime. However, there is one exception, which foresees the opt-in regime, but only for consumers who do not have their usual domicile in Portugal at the date of the filing of the class action, as far as class actions seeking remedies (and not prohibitory relief) are concerned.

Under the draft bill, the claimant in a collective action seeking a prohibitory measure does not have to prove actual damage suffered by individual consumers affected by the infringement in question, nor the existence of intent or negligence on the part of the trader.

One of the most important and significant new features of this draft bill in relation to the Class Action Act is the express provision allowing the use of third-party funding, provided that certain requirements are met. The most important of these requirements are the following.

• The claimant must provide the court with a copy of the funding agreement entered into with the third party. This must include a financial summary showing the sources of funding, but the claimant may withhold any information necessary to ensure the principle of equality between the parties.
• The funding agreement must guarantee the independence of the claimant and the absence of conflicts of interest. The claimants are considered to be independent if they are solely responsible for taking decisions to bring, withdraw or settle collective actions, the guiding principle being the defence of consumer interests at stake.
• The funder may not oblige or prevent the claimant from bringing, withdrawing or settling the claim and any provision to the contrary will be null and void.
• Any funding agreement relating to a collective action in which the claimant represents the holders of the interests concerned without a mandate or express authorisation may not provide for remuneration of the funder in excess of a fair and reasonable amount. This amount must be assessed in the light of the characteristics and risk factors of the collective action in question and the market price of such funding.
• Collective actions brought by a claimant that has entered into a funding agreement are inadmissible if at least one of the defendants in the action is a competitor of the funder or an entity on which the funder is dependent.

If any of these requirements are not met, the court will order the claimant to refuse or modify the third-party funding in order to ensure compliance with them. The court will also declare the claimant’s lack of standing to bring the action if the necessary modifications are not made within the time limit set. In such a case, the declaration of the claimant’s lack of standing will not affect the rights of the holders of the interests covered by the collective action in question.

Another innovative measure in this draft bill is the establishment of a prior consultation procedure by the holders of the right to collective action. This requires that before any application for a definitive prohibitory measure is made, a communication must be sent to the trader by registered letter with acknowledgement of receipt. This communication must contain a description of the conduct that must cease or that may have caused harm to consumers. It must also specify which consumer protection rules have been infringed. The notice must then give the trader two weeks from receipt of the letter to stop the infringement. Thereafter, the holder of the right to bring a collective action that triggered the prior consultation procedure may apply for a prohibitory measure.

The draft bill provides that any defendant against whom a judgment is rendered in a collective action for prohibitory relief may be ordered to pay a penalty payment. The maximum fine is EUR4,987.98 for each offence, although the draft bill does not define what is to be understood by “each offence” for this purpose. This penalty will be shared equally between the claimant and the state.

The draft bill refers to the provisions of the Class Action Law regarding compensation, adding that any judgment ordering compensation must establish the criteria for identifying the consumers who have suffered damage and for quantifying the damage suffered by each individual consumer identified as having suffered damage. If the consumers who have suffered damage are not able to be individually identified, the judgment must establish a global amount of compensation.

However, the draft bill falls short when it comes to regulating the procedure to be followed in the management and payment of the compensation when a global amount is fixed. In fact, the draft bill only provides that the judgment must indicate the entity responsible for receiving, managing and paying the compensation due to the consumers that suffered damage who are not individually identified. It also provides that the claimant or one or more consumers identified in the action may be designated for that purpose.

Regarding the destination of the compensation, the draft bill establishes that any compensation awarded but not claimed by the consumers, within a reasonable period established by the judge, will be allocated, first, to the payment of all the costs, fees and other expenses incurred by the claimant with the action. These include the remuneration due to any third-party funding provider, as long as this remuneration complies with the corresponding requirements. Of the remaining amounts not claimed within the time limit set by the court or not paid because it is impossible to identify the consumers entitled to them, 60% will be paid to the Fund for the Promotion of Consumer Rights and 40% to the Institute for Financial Management and Justice Facilities.

The draft bill introduces new rules on the disclosure and advertising of collective actions, including the following.

• Final judgments, including those approving settlements, will be published and communicated to consumers. This will be done on the defendant’s website and in two newspapers most likely to be read by those interested in the judgments (or by any other means of communication chosen by the court). The losing party must pay for this publication. The judge may order the publication of extracts of the main points if the length of the document makes full publication inadvisable.
• The defendants have the same obligation of publication and communication in respect of final and unappealable decisions rejecting or dismissing collective actions seeking remedial measures.
• Claimants are required to publish on their websites information about collective actions they have brought in Portugal.
• The DGC will annually provide the European Commission with information on collective actions concluded in Portugal. It will also publish on its website the list of qualified entities designated for the purpose of bringing transnational collective actions, as well as information on collective actions pending and concluded before national courts.

Portugal has a specific procedural mechanism for class actions whereby an individual or group of individuals, associations, foundations, local authorities or, in respect of certain matters, the public prosecutor and the Directorate-General for Consumers may bring an action in representation of a larger group of people. This class action procedure is known as the ação popular (popular action) and may be brought in areas such as the environment, public health, consumer rights, cultural heritage, state-owned property, and private enforcement of competition law.

Class actions are expressly provided for in the Portuguese Constitution. The general legal framework for class actions is set out In the Class Actions Act (83/95), which applies to all areas and sectors of law. There are also sector-specific class actions rules, as follows:

• environmental policy – Law 19/2014 of 14 April;
• consumer protection – Law 24/96 of 31 July;
• cultural heritage – Law 107/2001 of 8 September;
• securities code – Decree-Law 486/99 of 13 November; and
• breach of competition law – Law 23/2018 of 5 June (“Private Damages Act”).

Outside the scope of class actions, the parties in civil proceedings are generally allowed to file collective actions (eg, when multiple claimants join their claims because they hold the same or similar interests). When two or more similar proceedings are pending before the court and the legal requirements for this are met, the cases may be joined at the request of the parties or by a decision of the court of its own motion. In civil cases, these collective redress mechanisms are provided for in the Civil Procedure Code. Please refer to 3.2. Definition of Collective Redress/Class Actions for further details.

Portugal has a procedural mechanism for class actions at national level, enshrined in the Class Action Act (83/95), aimed at protecting various interests, including those such as the environment, public health, consumer rights, cultural heritage, state-owned property and private enforcement of competition law. The general legal framework for class actions applies to all areas and sectors of law. There are also sector-specific class actions rules, as mentioned in 2.1 Collective Redress and Class Action Legislation.

The other collective redress mechanisms referred to in 2.1 Collective Redress and Class Action Legislation apply to civil and administrative proceedings, respectively.

Portuguese law does not provide for a statutory definition of what constitutes collective redress or a class action. Class actions are a form of collective redress, but not all forms of collective redress are class actions.

Collective Redress in Civil Proceedings

Portuguese law allows for multi-party/joint proceedings – that is, separate proceedings that are managed and heard together – in any of the following situations:

• multiple claimants join their individual claims into one action (joinder of parties);
• two or more existing proceedings have a significant connection between them and are joined with a view to avoiding inconsistent decisions (joinder of actions); or
• there is an assignment of claims to special purpose vehicles, where several individual claims are assigned to a special purpose vehicle that acts as a claimant.

There are no formal limitations on the number of claims or claimants that may be joined in the same proceedings.

Class Actions

In a class action, an individual or group of individuals, associations, foundations, local authorities or, in respect of certain matters, the public prosecutor and the Directorate-General for Consumers may bring an action in representation of a larger group of people. The Portuguese class action regime provides for an opt-out procedure. This means that there is no need for a specific mandate or authorisation from each member of the class. There is also no specific definition of a class and there is no determination of a class by preliminary certification.

The procedure for bringing a claim follows the general rules for civil and commercial proceedings. Territorial jurisdiction of the Portuguese courts must be established under:

• the Recast Brussels Regulation;
• other applicable international treaties; or
• the applicable national rules (ie, the domestic rules on jurisdiction set out in the Civil Procedure Code).

Portuguese law governing the organisation of the court system sets out the cases over which each court has jurisdiction.

There is no court in Portugal with specialised jurisdiction to hear class actions.

The overall procedure for bringing a collective redress suit in Portugal follows the general rules for civil proceedings. In the case of class actions, there are some specificities that will be highlighted below, where applicable.

The initial stage of the proceedings consists of the parties’ written pleadings – namely the statement of claim and statement of defence.

Claims are started by filing a claim via the Portuguese e-court platform (called Citius). The claim must be substantiated on reasonable grounds, subject to the specific circumstances of each case. Failure to comply with this may give rise to an invitation by the court to perfect the claim or ultimately lead to the claim being dismissed.

Under the specific class action rules, the court can issue an initial dismissal judgment if it considers that the claim is blatantly unfounded and that it cannot proceed as a class action or will not succeed. The public prosecutor is heard by the court at this stage before a decision is made. This is an exception to the general rule in civil proceedings, including multi-party/joint proceedings, where the merits of the case are normally heard only at the end of the case, after evidence has been taken.

If the defendant makes a counterclaim, the claimant will be allowed to submit a defence.

In some cases, it is also possible for the parties to submit additional pleadings at a later stage if:

• new facts relevant to the case arise; or
• the parties become aware of such facts after the initial pleadings.

As a rule, the pleadings stage is followed by the preliminary hearing, which is similar to a case management hearing. However, a preliminary hearing is not mandatory and is at the court’s discretion.

If the case proceeds to trial after the preliminary hearing (which is usually the case), the court will list the facts on which evidence must be produced by the parties.

The trial takes place on a date or dates scheduled by the court, usually for the production of witness evidence (including expert evidence) and statements by the parties or their legal representatives. Cases at first instance are presided over by a single judge, including at trial.

At the end of the trial, the parties’ counsel may present closing arguments, which are usually oral but may be made in writing.

Judgment will follow and can be appealed. Appeals are heard by the Court of Appeal, which decides on matters of fact and law; and then by the Supreme Court, which hears appeals on matters of law only. Appeals are heard by a panel of three judges. There are no oral hearings at the appeal stage.

The following people or entities have standing to bring a class action:

• citizens, individually or jointly with others;
• associations that exist to defend the interests in question;
• local authorities, in respect of interests of residents in their area; and
• the public prosecutor.

There is no list of qualified bodies that are allowed to bring class actions. Additionally, the following requirements must be met for an association or foundations to be entitled to bring a class action on behalf of a group of citizens:

• it must be a legal person with full legal capacity;
• the interests involved in the class action must be specifically covered by its purpose in the articles of association; and
• it cannot engage in any kind of activity that competes with companies or self-employed professionals.

Associations of undertakings whose members have been harmed by an infringement of competition law may also bring proceedings, even if their statutory purpose does not include the defence of competition.

Funding arrangements and third-party funding do not in themselves grant standing to the funder to intervene in the proceedings.

The general rule under Portuguese law is that all class actions proceed on an opt-out representative basis. If the class action is accepted by the court, class members will be served (i) to join and participate in the proceedings proactively if they wish; or (ii) to state that they do not agree to be represented by the claimant(s). The right to opt out may be exercised by class members until the end of the evidential stage of proceedings. Not opting out of an action by the deadlines set will result in an automatic opt-in. 

Additionally, Portuguese law does not provide for a standalone class certification process. However, for a class action to proceed in Portugal, the court must carry out a preliminary analysis of the claim. In that assessment, the court can summarily reject the claim if it considers that it is manifestly unlikely to proceed. One of the grounds for such a decision can be the absence of a proper class. It is rare, however, for class actions to fail at this stage of proceedings.

Notwithstanding the above, the parties to class action proceedings can make submissions regarding class membership in the claim (claimant) and in the defence (defendant). There are additional stages where this issue can be litigated prior to judgment. These include:

• during the preliminary hearing (which is akin to a case management conference);
• during the final hearing; and
• in response to any request for submissions on this point made by the court in the run-up to the final hearing.

As a rule, the court will rule on all substantive issues – including class membership – in the final judgment.

Outside the scope of class actions, third parties may join the proceedings as claimants or defendants of their own motion or at the request of parties. This will be the case when a third party has a similar interest to that of the claimant or defendant in the outcome of the proceedings.

If the third party does not have the same interest in the case as the claimant or the defendant (eg, it only has an indirect interest), it may still participate in the proceedings. In this case, participation in the proceedings will be more limited, as will be the effect of the judgment on the third party.

In civil cases, the courts are under a duty of procedural management. This means that it is the judge’s duty to actively manage the proceedings and ensure that they proceed expeditiously. The court must also promote all steps that are necessary for the normal continuation of proceedings. If needed, the court must refuse any impertinent or delaying tactics. Case management powers include adopting mechanisms for simplifying and speeding up the proceedings in order to guarantee the fair settlement of the dispute within a reasonable time, after hearing the parties.

In addition, subject to mandatory rules and time periods, the court may adopt a procedural approach that is appropriate to the specifics of the case and adjust the content and form of procedural acts to the outcome they are intended to achieve, thus ensuring a due process.

The experience of the authors to date of civil litigation in Portugal is that such proceedings can take between approximately four and five-and-a-half years, with the following estimated periods for each stage of proceedings:

• first instance proceedings – two-and-a-half years to three years;
• Court of Appeal proceedings – an additional one to one-and-a-half years; and
• Supreme Court of Justice proceedings – up to an additional year.

There are no formal procedural mechanisms in place to deviate from the length and timetable for proceedings, such as acceleration of claims, summary disposal or delaying of claims.

However, in civil cases, the court has discretionary case management powers to extend certain time limits (usually at the request of the parties), provided that certain requirements are met – please refer to 4.6 Case Management Powers of Courts.

In addition, a party can request that an application/motion be dealt with on an urgent basis, even in cases that are not urgent in nature. The timeframe for the court’s decision will depend on factors such as the court’s workload and the need to grant the opposing party an opportunity to comment on the application/motion filed.

There is also no specific procedure for the parties to apply for early judgment on some or all the issues in dispute, or for the other party’s case to be struck out before trial or substantive hearing of the claim. The parties usually do so in their pleadings or submissions made during the proceedings as a result of the arguments put forward. The court may nonetheless anticipate a ruling on one or more procedural matters, or even decide the merits of the case (either partially or fully) if it considers unnecessary to produce any or additional evidence on the matter being decided.

Costs

The general rule is the “loser pays” rule. Costs comprise court fees and adverse costs, including the prevailing side’s counsel’s fees. In the case of a settlement, costs are split 50:50, unless otherwise agreed.

Parties that join the proceedings as claimants or defendants will be liable for costs in the same way as the original parties. Parties that join the proceedings because they have an indirect interest in the case may also be liable for costs.

Where the settlement is made between a party exempted from payment of costs and another party which is not exempted, the court, after hearing the public prosecutor, will set the proportion in which costs are to be paid.

Under the specific class action rules, if the court finds even just partially in favour of the claimant, the claimant will be exempt from court costs. If the claim is universally unsuccessful, claimants will be ordered to pay an amount to be fixed by the court as costs. This amount will range from 10% to 50% of the amounts due in ordinary civil claims. In determining the specific amount to be paid by an unsuccessful claimant, the court will consider the economic situation of the claimants and the reasons why the claim did not succeed. Conversely, defendants in class actions must pay court costs, as is the case in any other civil proceedings.

Funding

Third-party funding is not yet specifically regulated in Portugal. There is also no specific restriction on the types of lawsuits available for third-party funding.

Given the lack of current regulation and in light of the principle of contractual freedom, it is understood that parties can resort to third-party funding and will, in principle, have full discretion on how to govern their relationship with third-party funders. However, third-party funding will always be subject to the general mandatory rules and principles of public policy, good faith, abuse of rights, conflicts of interest and public morality.

There is no express provision on minimum or maximum amounts a third-party funder will fund. To date, there is also little indication of what costs a third-party funder will consider funding. Funders are nevertheless expected to rely on standard contracts used in other countries where third-party funding has been permitted and used for a long time or specifically regulated. Under Portuguese law, the principle and limits of freedom of contract, in principle, allow any legal costs to be financed by a third party. The right of the third-party funder to recover those costs will be governed by the financing agreement (subject to any applicable mandatory rules).

It should be noted, however, that recourse to these financing schemes may raise further and specific issues within some settings, most notably when the litigation concerned is not a dispute strictly between private parties (eg, litigation funding arrangements within opt-out-based class actions whereby the servicing of the debt is to be made via any unclaimed compensation amounts).

There is no specific rule imposing a duty on parties to disclose whether they are being funded by a third-party. However, knowledge of third-party litigation funding and the terms of the funding agreements may still be a relevant factor or even a requirement, at least in certain cases (eg, in the cases referred to above).

To date, there is no identifiable established case law on whether and to what extent third-party funding arrangements are lawful in Portugal. Until very recently, third-party funding was very rare. However, since December 2020, several class actions backed by litigation funding arrangements have been brought before the Portuguese courts. The extent to which litigation funding arrangements common in jurisdictions such as the US, the UK and Australia are permitted by Portuguese law is not yet clear.

Third-party funding is currently a hot topic for discussion among legal practitioners in Portugal. Please refer to 1.3 Implementation of the EU Collective Redress Regime on the Portuguese draft bill allowing the use of third-party funding in Portugal, provided that the requirements listed therein are met.

Unlike in common law jurisdictions, there is no discovery process in Portugal. Portuguese law also does not allow other types of pre-trial investigations, fishing expeditions or indiscriminate requests for the production of evidence. A party to litigation is therefore under no obligation to make available evidence which supports or undermines its case to the other side.

Notwithstanding the above, the court may order the production of specific documents or a set of documents at the request of each party. Requests for reference to an excessively broad class of documents or information on a certain matter or that will lead to non-specific searches will not be granted by the court.

The requesting party must also indicate the facts it intends to prove with the documents requested – each document request must be proportionate and relevant to the proceedings. The requesting party must also identify the documents it requests to the extent possible. This is without prejudice to the possibility of requesting categories of documents or the production of ex novo documents (following recent ECJ case law within private antitrust enforcement – Case C-163/21 Paccar e.a.).

The court will grant a request for disclosure of documents if the requesting party is unable to obtain the documents by any other means or has substantial difficulty in doing so.

Production requests are usually made between the pleadings stage and the preliminary hearing and are subject to the adversarial rules. This means that the court will not order the production of any documents without the opposing party making submissions to the court regarding the production request (eg, with respect to its proportionality or temporal scope).

The timing of the production of documents is set by the court and may vary according to the type and the number of documents to be produced. Judges are usually receptive to reasonable constraints invoked regarding the production of documents.

The court may also order the parties (or even third parties) to disclose documents or other evidence of their own motion at any stage of the proceedings.

Notwithstanding the above, the parties or persons concerned may refuse to comply with the order of the court if it entails a breach of professional or public officer’s privilege, or of state privilege. In case of the refusal, the court may ask the appellate court to assess whether the duty of secrecy should prevail or instead be waived.

Stringent safeguards to protect confidential and privacy/sensitive, commercially sensitive documents or information can be requested from, or ordered by, the court.

Any facts, documents or information obtained in breach of attorney-client privilege will not be admitted as evidence in court proceedings. Correspondence and documents exchanged between lawyers and their clients cannot be seized by the court unless they relate to a criminal offence in proceedings where the counsel is a defendant.

The remedies available through collective redress/class actions in Portugal are the same as those that are available for general civil cases – notably:

• injunctive relief;
• requests for compensation for losses incurred and damages suffered;
• requests for specific performance (mandatory or prohibitory relief); and
• requests for penalties for non-performance of the conduct at issue.

A claimant may be awarded more than one type of relief in the same case.

The most common types of remedies sought to date by claimants are requests for compensation for losses incurred and damage suffered as a result of the alleged unlawful conduct.

In the case of class actions, compensation is set globally. The court has the discretion to set the compensation of unidentified claimants as a whole, considering the overall damage. This amount must be reduced by the amount of compensation due to claimants who opted out. Identified claimants will be compensated according to the general rules of civil liability (ie, according to the damage they have actually sustained).

Settlement for Collective Redress/Class Actions

In Portugal, there is no specific procedure for settlements in the context of collective actions. The general rules for settlements in civil claims will apply.

A settlement can be taken to court for approval (if the settlement is reached in court); or the parties can just inform the court that they have reached a settlement (if the settlement is reached out of court). If the court approves the settlement and/or considers the procedural conditions for a settlement are met, the case will be closed.

The court is not allowed to assess the reasonableness of the settlement with the interests of the parties or by any means rule on the balance of the settlement.

In the case of a settlement of a class action, the settlement must be submitted to the court for approval. The public prosecutor is notified of the proposed settlement in order to indicate whether it wishes to exercise its right to substitute the claimant and/or to raise any issues regarding the agreement on the payment of court costs that the parties have reached.

The settlement will be binding on, and enforceable between, those that sign it. Class members that refuse to enter into settlement or that have opted out of the proceedings will not be bound by the settlement.

ADR/Non-court Resolution for Collective Redress/Class Actions

In Portugal, there is no specific ADR/non-court resolution in the context of collective actions.

However, there are several ADR mechanisms available in Portugal as an alternative to the state courts. The most popular ADR methods in Portugal are arbitration, mediation, conciliation and the justices of the peace (Julgados de Paz).

A successful litigant will have a judgment in its favour that can be fully enforced against the losing party if the latter does not voluntarily comply with the court decision.

Under the specific class actions rules, the judgment will be binding on, and enforceable between class members covered by the proceedings and the defendant(s). Class members that have opted out of the proceedings will not be bound by the judgment.

A domestic judgment may be enforced by a subsequent court action brought by the party/parties seeking enforcement against the person(s) on whom enforcement is sought.

The enforcement procedure involves a trilateral procedural relationship between the winning party/parties of the judgment, the enforcement officer and the court, in order to attach and carry out a judicial sale of the debtor’s assets to satisfy their claim or lead the latter to engage in a certain conduct.

Where enforcement proceedings are based on judgments, the debtor is usually notified of their commencement and is only aware of their existence after the attachment of assets has taken place.

Enforcement proceedings in Portugal can only target assets of the debtor located within Portugal.

Portugal has transition steps underway to implement the EU Directive on Representative Actions (EU 2020/1828) – please refer to 1.3 Implementation of the EU Collective Redress Regime for further details. There are no other known current policy developments or initiatives in relation to the matters discussed in the sections above.

Portugal has transition steps underway to implement the EU Directive on Representative Actions (EU 2020/1828) – please refer to 1.3 Implementation of the EU Collective Redress Regime for further details.

Brexit has had no tangible impact on the matters outlined in the above sections in Portugal.

The ESG movement may lead to extensive or class litigation in the near future. However, it is not yet possible to assess the impact of ESG litigation in Portugal at this stage.