PORTUGAL Law and Practice Contributed by: Rita Samoreno Gomes, Petra Carreira and Maria Berta Jerónimo, PLMJ
• injunctive relief; • requests for compensation for losses incurred and damages suffered; • requests for specific performance (mandatory or prohibitory relief); and • requests for penalties for non-performance of the conduct at issue. A claimant may be awarded more than one type of relief in the same case. The most common remedies sought to date by claim- ants are requests for compensation for losses incurred and damages suffered as a result of the alleged unlaw- ful conduct. In the case of class actions, compensation for the violation of the interests of unidentified individuals is set globally. The court has the discretion to set the compensation of unidentified claimants as a group, taking into account the total damage. This amount must be reduced by compensation allocated to claim- ants who opted out. Identified claimants will be com- pensated according to the general rules of civil liabil- ity (ie, according to the damage they have actually sustained). 3.12 Settlement and ADR Mechanisms In Portugal, there is no specific procedure for settle- ments in the context of collective actions. The general rules for settlements in civil claims will apply. A settlement can be taken to court for approval (if the settlement is reached in court); alternatively, the par- ties can inform the court that they have reached a set- tlement (if the settlement is reached outside of court). If the court approves the settlement and/or considers that the procedural conditions for a settlement are met, the case will be closed. The court is not allowed to assess the reasonableness of the settlement in light of the parties’ interests or to rule on the balance of the settlement in any way. In a class action settlement, the agreement must be submitted to the court for approval. The public prose- cutor is notified of the proposed settlement in order to indicate whether it wishes to exercise its right to sub-
stitute the claimant and/or to raise any issues regard- ing the agreement on the payment of court costs that the parties have reached. The settlement will be binding on and enforceable between those who sign it. Class members who refuse to enter into the settlement or who have opted out of the proceedings will not be bound by the settlement. ADR/Non-court Resolution for Collective Redress/ Class Actions In Portugal, there is no specific ADR/non-court resolu- tion in the context of collective actions. However, several ADR mechanisms are available in Portugal as alternatives to state courts. The most popular ADR methods in Portugal are arbitration, mediation, conciliation and the justices of the peace ( Julgados de Paz ). 3.13 Judgments and Enforcement of Judgments A successful litigant will have a judgment in its favour that can be fully enforced against the losing party if the latter does not voluntarily comply with the court decision. Under the specific class actions rules, the judg- ment will be binding on and enforceable between class members covered by the proceedings and the defendant(s). The judgment will not bind class mem- bers who have opted out of the proceedings. A domestic judgment may be enforced by a sub- sequent court action brought by the party/parties seeking enforcement against the person(s) on whom enforcement is sought. The enforcement procedure involves a trilateral procedural relationship among the winning party/parties of the judgment, the enforce- ment officer, and the court, to attach and carry out a judicial sale of the debtor’s assets to satisfy their claim or to compel the latter to engage in a certain conduct. Where enforcement proceedings are based on judg- ments, the debtor is usually notified of their com- mencement and is only aware of their existence after the attachment of assets has taken place.
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