PORTUGAL Law and Practice Contributed by: Rita Samoreno Gomes, Petra Carreira and Maria Berta Jerónimo, PLMJ
The trial takes place on a date(s) 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, includ- ing at trial. At the end of the trial, the parties’ counsel may present closing arguments, which are usually oral but may also be written. 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. 3.3 Standing 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 the interests of resi- There is no list of qualified bodies that are allowed to bring class actions. Additionally, the following require- ments must be met for an association or foundation 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 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. dents in their area; and • the public prosecutor.
In the case of cross-border collective actions for con- sumer protection, qualified entities designated previ- ously by other Member States can also bring a col- lective redress/class action. Funding arrangements and third-party funding do not, in themselves, grant the funder standing to intervene in the proceedings. 3.4 Class Members, Size and Mechanism – Opting In or Out Under Portuguese law, the general rule is that all class actions proceed on an opt-out representative basis. If the court accepts the class action, class members will be served to: • join and participate in the proceedings proactively if they wish; or • state that they do not agree to be represented by the claimant(s). Until the end of the evidential stage of proceedings, class members may exercise the right to opt out. Fail- ing to opt out of an action by the set deadlines 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.
243 CHAMBERS.COM
Powered by FlippingBook