PORTUGAL Law and Practice Contributed by: Rita Samoreno Gomes, Petra Carreira and Maria Berta Jerónimo, PLMJ
PLMJ Av Fontes Pereira de Melo 43 1050 119 Lisboa Portugal
Tel: +351 211 592 574 Web: www.plmj.com
1. Policy Development of Collective Redress/Class Action Mechanisms 1.1 History and Policy Drivers of the Legislative Regime Class actions are not a new feature of the Portuguese legal system. Class actions as an instrument for col- lective protection date back to ancient Rome and Roman law. They have been enshrined in the Portu- guese legal system since at least the 16th century, albeit in different forms and scopes. The Constitu- tional Charter of 1826 was the first Portuguese con- stitutional instrument to refer to class actions. The right to bring such actions has been constitution- ally recognised in Portugal for more than 30 years. 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). Alongside class actions, the Portuguese Civil Proce- dure Code provides for collective redress mechanisms in civil cases. 1.2 Basis for the Legislative Regime, Including Analogous International Laws Class actions in Portugal differ significantly from those in countries like the United States, the United King- dom, and Australia. While Portuguese class action regulations are influenced by the systems of these countries, they also have unique features that will be examined in detail below.
1.3 Implementation of the EU Collective Redress Regime EU Directive on Representative Actions (EU 2020/1828) (RAD) was transposed into national law in late 2023 by Decree-Law No 114-A/2023, 5 December (Consumer Protection Class Actions Act). Although Portugal already has a procedural mecha- nism for collective actions at national level, enshrined in the Class Action Act (and also the Code of Civil Pro- cedure), aimed at protecting various interests, includ- ing those related to the consumption of goods and services by consumers, this legislation establishes a specific mechanism for national and cross-border col- lective actions to protect the rights and interests of consumers. However, the Class Action Act remains in force and the Consumer Protection Class Actions Act expressly provides that the provisions of the Class Action Act will apply to anything not provided for in this legislation. Regarding the legal standing of associations and foun- dations, the Consumer Protection Class Actions Act introduces new requirements that supplement those already outlined in the Class Action Act. Additionally, it will be the responsibility of the Directorate General for Consumers (DGC) under this legislation 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 Consumer Protection Class Actions Act, 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 con- sidered qualified entities for the purpose of bringing transnational collective actions.
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