PORTUGAL Law and Practice Contributed by: José Luís da Cruz Vilaça and Mariana Tavares, Antas da Cunha Ecija
or examined during various stages of the process, including the preliminary or case management hear - ing, the final hearing, or in response to any request from the court for further clarification. 5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law Jurisdictional rules are governed by Regulation (EU) No 1215/2012 of the European Parliament and Coun - cil, dated 12 December 2012 (Brussels I bis), which addresses jurisdiction as well as the recognition and enforcement of judgments in civil and commercial matters. The determination of the applicable law for tort claims is governed by Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obliga - tions (Rome II), whereas contractual obligations fall under the scope of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I). In situations where neither regulation nor any other international treaty applies, national conflict-of-law principles will be used to establish the relevant law. The party seeking to rely on foreign law bears the burden of proving its existence and content. This is without prejudice to the parties’ autonomy to select the applicable law, provided such choice is permitted under the applicable legal framework.
Under the Private Damages Act, however, both claim - ants and defendants must specify the evidence they intend to rely on to support their factual assertions. Either party may request the production of particular documents, provided these are clearly identified and the request satisfies the legal requirements of rele - vance, specificity and proportionality. In pre-litigation situations, claimants must also establish a plausible basis for their claims. In the judgment of 29 January 2026 on the Melia case (Case C-286/24), the CJEU ruled on a request arising from Portugal’s pre-action disclosure mecha - nism under Article 13 of the Private Damages Act. The Court held, first, that Article 5 (1) of the Damages Directive (2014/104/EU) applies to disclosure actions brought before a damages claim is filed, and not only to disclosure requests made within a pending action. Second, the Court held that the “plausibility” standard applicable to pre-action disclosure is a deliberately lower threshold than a “more likely than not” stand - ard. This is intended to compensate for the informa - tion asymmetry inherent in antitrust cases, such that claimants need only to rely on facts and evidence that are reasonably available to them. All document production requests are subject to judi - cial scrutiny and are conducted under adversarial principles, ensuring that the opposing party has the opportunity to respond, particularly regarding the scope, necessity and proportionality of the request. The court determines appropriate timelines for com - pliance, considering the nature and volume of the requested documents and generally accommodating reasonable limitations proposed by the parties. More - over, courts have the discretion to order the produc - tion of documents or information on their own initiative at any stage of the proceedings. 6.2 Legal Professional Privilege Any facts, documents or information obtained in vio - lation of attorney-client privilege are inadmissible as evidence in court proceedings. Communications and documents exchanged between lawyers and their cli - ents are protected from seizure by the court.
6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure
In Portugal, the discovery process differs significantly from that in common-law jurisdictions, as there is no general right to broad pre-trial disclosure. Portuguese law does not permit extensive fishing expeditions or indiscriminate requests for document production. Par - ties are not obliged to disclose all evidence in their possession, whether favourable or adverse to their case.
128 A NTITRUST LI T IGATI O N 2026
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