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Portugal

Author: Rafael Vale e Reis - Miguel Mesquita, supervisor

III. Sectoral Collective Redress Mechanisms in Portugal

A. Consumer law

1. General description

Law 24/96, of July 31st, stipulates the general legal framework for the consumer protection.

It does not regulate the collective redress mechanism itself, but it states that consumers and consumers' associations may use the general mechanism (acção popular).

2. Scope

Article 12 no. 1 and 2 of Law 24/96, of July 31st, stipulates that the consumer has the right to receive compensation for patrimonial damage or non-patrimonial damage caused by defective products or services.

3. Procedure

a. Standing

Article 13, b) and c) of Law 24/96, of July 31st grants standing to consumers and consumers' associations although not directly injured, under the terms of Law 83/95, of August 31st, to the Public Prosecutor (Ministério Público) and the Institute for the Consumer.

b. Opt- in; opt- out procedure

The same system as in popular action, described above

c. Competent court

Civil courts.

d. Main procedural rules

The same rules as in popular action.

e. Evidence/ discovery

No special rules are applicable

4. Available remedies

The same as described for popular action. Also, according to Law 24/96, of July 31st, injunctions may be ruled by the Court, for the prevention, correction or cessation of practices which are harmful to the rights of consumers, including the prohibition of using general contractual terms or commercial practices which are expressly forbidden in law.

5. Costs

The same rules as described for popular action.

6. Number of claims

Rarely used, for the same reasons described for popular action.

7. Reform plans for consumer collective redress

This topic is analysed with detail by HENRIQUE SOUSA ANTUNES :

"1. The adoption of a Consumers' Code is envisaged in the near future, which, in particular, will simplify the system of relevant provisions regarding collective protection of the consumer. Among others, the statutes on general contractual terms (Decree-Law 446/85) and consumer protection (Law 24/96) will be revoked. The Draft Bill for the Code, which has been made public, provides, in Article 550, that popular action will be exercised under the terms of Law 83/95, with the specifics of the articles subsequent to it.

2. Article 551 (1) sets down that standing for the exercise of popular action, aimed at protecting homogeneous individual or diffuse rights and interests, belongs to any individual who demonstrates an objective and serious interest in bringing the action and to associations and foundations which fulfil the requirements of Article 552. It should be pointed out that the standing of the aforementioned legal persons is dependent on registration with the Institute for the Consumer (Articles 552 and 553). It is a requirement of foundations that their aim, as set out in their statutes, consists of the defence of the interests of those persons that the Consumers' Code seeks to protect. With regard to the standing of associations, the law adds the following requirements: that at least 100 natural persons are included among their effective members; that they have been exercising their activity continuously for over a year.

3. The provisions of Articles 554 and 555 are especially relevant, since they fill a gap in the law of popular action. Article 554 establishes, with regard to reparative protection, that, once the substance of the request for compensation has been confirmed, the decision designates the Institute for the Consumer as the competent body to receive and manage the amount of the order and fix the criteria to be observed in its distribution to the holders who are not identified by name in the proceedings (1). The court is able to apply a compulsory pecuniary sanction which is sufficient to encourage voluntary compliance with the obligations placed on the defendant, under the terms of Article 829-A of the Civil Code.

4. According to Article 555, the procedure for sharing the amount fixed as global compensation is conducted officiously by the Institute for the Consumer, and should be begun within 30 days of the decision becoming res judicata and concluded within 180 days (1 and 2). The procedure includes a phase, with a minimum duration of 30 days, aimed at allowing the intervention of those with interests in the sharing of the globally fixed amount (3). The start and finish of the period for the intervention of interested parties, in addition to the purpose for which it is intended, a warning that failure by interested parties to declare their intentions within the period established in paragraph 3 will lead to exclusion of their right to participate in the product of the compensation granted to the holders of interests who are not identified by name in the decision (5), and other information considered to be opportune is publicized in an advertisement made public by means of any form of the media or press, or by any other form deemed to be more effective (4). The division of the amount set as global compensation may be contested, by means of a claim made to the judge in the case, processed as part of it, with the interested parties who are contesting indicating the amount they believe they are entitled to and providing corresponding proof (6). In that case, the judge designates a day on which a conference with the interested parties can be held, with a view to dividing the amount of the global compensation fairly (7)."

B. Financial market law

1. General description

2. Scope

Decree-Law 486/99, of November 13th, approved the Securities Code. Articles 31 and 32 stipulate the possibility of using the popular action for the protection of homogeneous individual interests or collective interests of investors in securities.

3. Procedure

a. Standing

Non-institutional investors, associations for the protection of investors and foundations whose purpose is the protection of investors in securities can start proceedings in this area.

b. Opt-in; opt- out procedure

The same rules as in popular action are applicable. Hyperlink or repeat info?

c. Competent court

Civil courts.

d. Participation of foreign plaintiffs

The same rules as in popular action are applicable. Hyperlink or repeat info?

e. Certification criteria

Associations who have standing must have the protection of the interests of investors in securities as the principal goal of their functioning. They must also have at least 100 members, who are natural persons, who are not institutional investors, and have been in operation for more than a year, as stipulated by article 32 of Decree-Law 486/99, of November 13th.

f. Main procedural rules

The same rules as in popular action are applicable.

g. Evidence/ discovery

The same rules as in popular action are applicable.

h. Multi- stage process

The same rules as in popular action are applicable.

4. Available remedies

The same rules as in popular action are applicable.

5. Costs

The same rules as in popular action are applicable.

C. Other areas

1. Environmental Law

1.1. General description

Accordingly with article 45 of Law 11/87, of April 7th (Framework Law on the Environment) (changed by Law 13/2002, of February 19th), the protection of environmental values may be achieved using popular action and all its instruments and rules.

1.2. Scope

The collective redress mechanism may be used when there is a breach on environmental values.

1.3. Procedure

a. Standing

The same rules as in popular action are applicable.

b. Opt-in; opt- out procedure

The same rules as in popular action are applicable.

c. Competent court

Civil and administrative courts.

d. Participation of foreign plaintiffs

The same rules as in popular action are applicable.

e. Certification criteria

The same rules as in popular action are applicable.

f. Main procedural rules

The same rules as in popular action are applicable.

g. Evidence/ discovery

The same rules as in popular action are applicable.

h. Multi- stage process

The same rules as in popular action are applicable.

1.4. Available remedies

The same rules as in popular action are applicable.

1.5. Costs

The same rules as in popular action are applicable.

2. Protection of Cultural Heritage

2.1. General description

Law 107/2001, of September 8th, on the protection of the Portuguese cultural heritage, recognizes the right of popular action according to Law 83/95 (article 9, no. 2).

2.2. Scope

The collective redress mechanism may be used when there is a breach on Portuguese cultural heritage values (for example, but not exclusively, on historic, archaeological, artistic or architectonic heritage).

2.3. Procedure

a. Standing

The same rules as in popular action are applicable. In addition, the Public Prosecutor (Ministério Público) has standing (art. 9, no. 3).

b. Opt-in; opt- out procedure

The same rules as in popular action are applicable.

c. Competent court

Civil and administrative courts.

d. Participation of foreign plaintiffs

The same rules as in popular action are applicable.

e. Certification criteria

The same rules as in popular action are applicable.

f. Main procedural rules

The same rules as in popular action are applicable.

g. Evidence/ discovery

The same rules as in popular action are applicable.

h. Multi- stage process

The same rules as in popular action are applicable.

2.4. Available remedies

The same rules as in popular action are applicable.

2.5. Costs

The same rules as in popular action are applicable.

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