PORTUGAL Law and Practice Contributed by: Rita Samoreno Gomes, Petra Carreira and Maria Berta Jerónimo, PLMJ
The Consumer Protection Class Actions Act also reg- ulates 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. The Consumer Protection Class Actions Act, similar to the Class Action Act, includes an opt-out regime. However, there is one exception: an opt-in regime applies specifically to consumers who do not have their usual domicile in Portugal at the time the class action is filed. This exception is relevant only for class actions seeking remedies, rather than prohibitory relief. Under the Consumer Protection Class Actions Act, the claimant in a collective action seeking a prohibi- tory 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. Third-Party Funding One of the most important and significant new fea- tures of this legislation in relation to the Class Action Act is the express provision allowing third-party fund- ing, provided that certain requirements are met. The following are the most important requirements. • 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 show- ing 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 claim- ant’s independence and the absence of conflicts of interest. The claimants are considered independent if they are solely responsible for making decisions to bring, withdraw, or settle collective actions, with the guiding principle being the defence of consum- er 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 remuner- ation of the funder in excess of a fair and reason- able amount. This amount must be assessed in light of the characteristics and risk factors of the collective action in question, as well as 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 either refuse or modify the third-party funding to ensure compliance. The court will also declare the claimant’s lack of standing to bring the action if the necessary modifications are not made within the specified time limit. In such a case, the declaration of the claimant’s lack of standing will not affect the rights of the holders of the interests cov- ered by the collective action in question. Prior Consultation Another innovative measure in the Consumer Protec- tion Class Actions Act is the establishment of a prior consultation procedure by the holders of the right to collective action. This requires that, before any appli- cation for a definitive prohibitory measure is made, a communication must be sent to the trader by reg- istered 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; and • the consumer protection rules that have been infringed. The notice must then give the trader two weeks from receipt of the letter to stop the infringement. Thereaf- ter, the holder of the right to bring a collective action that triggered the prior consultation procedure may apply for a prohibitory measure. The Consumer Protection Class Actions Act provides that any defendant against whom a judgment is ren- dered in a collective action for prohibitory relief may be ordered to pay a penalty payment. The maximum
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