PORTUGAL Law and Practice Contributed by: Armando Martins Ferreira, Inês Sequeira Mendes and Margarida Calixto Kolmer, Abreu Advogados
6. Civil Litigation 6.1 Private Rights of Action
As regards legitimacy, associations and founda - tions must have legal personality, must expressly include in their attributions or in their statutory objectives the defence of the interests at stake, and must not take part in a professional activity that competes with that of the defendant. Collective redress follows an opt-out system, through which the claimant automatically rep - resents the remaining holders of the rights and interests at stake, unless they opt out of the rep - resentation, following the court’s citations and/ or public notices for this purpose. 6.3 Indirect Purchasers and “Passing On” Defences Indirect purchasers can bring claims for dam - ages but are also subject to the burden of proof regarding demonstrating the following general civil liability requirements laid down in the Por - tuguese Civil Code, which are applicable to antitrust damages actions (with some specifici - ties, namely the presumption that cartels cause damages): • the existence of human conduct; • the unlawfulness of the conduct; • the imputation of the conduct to the wrong - doer; • the existence of damages; and • the existence of a causal link between the lat - ter two of these. As far as the existence of damages and a causal link is concerned, indirect purchasers would be required to present evidence that the damage caused by the direct purchaser was transferred to them and therefore caused to them. However, on antitrust damages actions, the indi - rect purchasers’ burden of proof is reduced; they
Law 23/2018 sets out the transposition of Direc - tive 2014/104/EU, providing the procedural rules ensuring that anyone who has suffered harm caused by an infringement of EU and national competition law by an undertaking or associa - tion of undertakings can effectively exercise the right to claim full compensation. 6.2 Collective Action According to Article 19 of Law 23/2018, class actions can be set out by associations and foun - dations for the defence of consumers, as well as by companies’ associations. The Portuguese Constitution provides the fun - damental right to petition and to seek collec - tive redress (actio popularis), setting out that every citizen has the right to submit, individu - ally or jointly with others, claims in defence of their rights, the constitution, the laws or the general interest. This includes the right to apply for appropriate compensation, as an aggrieved party or parties, personally or via associations that purport to defend the interests in question. Law-Decree No114/2023 is the national transpo - sition of Directive (EU) 2020/1828 on represent - ative actions for the protection of consumers’ interests. Accordingly, this Law-Decree together with the Portuguese Act 83/95, dated 31 August 1995 ( Lei da Acção Popular ), set out the legal framework applicable to class actions, including antitrust damages actions. The regime laid down by these two pieces of legislation allows not only natural persons but also associations and foun - dations (other legal persons not included) to act in the defence of collective and diffuse interests, particularly through a claim for damages.
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