PORTUGAL Law and Practice Contributed by: Rita Samoreno Gomes and Petra Carreira, PLMJ
professional licence, subject to prior registration with the Portuguese Bar Association. Foreign lawyers from non-EU member states may become members of the Portuguese Bar Association under the same terms as Portu- guese lawyers if they have been granted a law degree by a Portuguese university, whether directly or by equivalence, and if their country grants reciprocity to Portuguese lawyers. Trainee lawyers have limited powers until they have completed their professional traineeship, and may only appear in court if accompanied by their mentor. 2. Litigation Funding 2.1 Third-Party Litigation Funding Until recently, third-party funding was very rare in Portugal. However, since December 2020, several class actions backed by litigation fund- ing arrangements have been brought before the Portuguese courts. Several debates are ongo- ing regarding the role and intervention of third- party litigation funders, and it is being discussed whether third-party funders should be permitted to receive unclaimed damages (ie, a share of the compensation awarded for damages suffered by others). Portugal has transposed the EU Direc- tive on Representative Actions (EU 2020/1828) into national law through Decree-Law No 114- A/2023, dated December 5 (Consumer Protec- tion Class Actions Acts), which entered into force in late 2023. One of the most important and significant new innovations in the Consumer Protection Class Actions Act is the express pro- vision allowing the use of third-party funding, provided that certain requirements are met. The most important of these requirements are the following.
• 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 showing 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 independence of the claimant and the absence of conflicts of interest. The claim- ants are considered to be independent if they are solely responsible for taking decisions to bring, withdraw or settle collective actions, the guiding principle being the defence of consumer interests at stake. • The funder may not oblige or prevent the claimant from bringing, withdrawing or set- tling the claim and any provision to the con- trary 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 remuneration of the funder in excess of a fair and reasonable amount. This amount must be assessed in the light of the characteristics and risk factors of the collec- tive action in question and 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 refuse or modify the third-party funding in order to ensure compli- ance with them. The court will also declare the claimant’s lack of standing to bring the action if the necessary modifications are not made within the time limit set. In such a case, the declaration
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