PORTUGAL Trends and Developments Contributed by: Alexandra Nascimento Correia, Guilherme Santos Silva, Gonçalo Malheiro and Laura Cecília Lourenço, Abreu Advogados
Decree-Law 114-A/2023 With the Directive, Portugal, despite already providing for class actions, had the opportunity to develop its legal provisions by establishing a special national class action regime for the protection of consumer rights and interests by making the necessary adaptations and enshrine- ments to transpose the Directive. The special regime set out in Decree-Law 114- A/2023 applies to infringements of the provi- sions of national consumer protection law, as well as EU consumer protection law. Under the terms of Article 21, anything not provided for in this Decree-Law will be applied by Law 83/95, which enshrines a general right of class action. Legitimacy Under general law, class actions can be brought by any citizen, individually or jointly with others, but, looking at Article 5 of Decree-Law 114- A/2023, private individuals, in their individual capacity, are no longer legitimate parties. Only associations and foundations, as well as local authorities, can therefore exercise the right to a class action on behalf of injured parties. Associations and foundations are now subject to stricter requirements. First and foremost, it is mandatory for organisations to be registered with the Directorate General for Consumer Affairs (the “DGC”) in order to bring transnational class actions, and they must meet the following requirements. • Be a legal person, demonstrating activity to promote and protect consumer rights for at least 12 months, with this characteristic included in its corporate purpose. • Be non-profit-making. • Not be insolvent or subject to insolvency proceedings.
• Be independent, ie, be solely responsible for making the decisions to bring, withdraw or settle, all within the scope of the class action, and be free from the influence of anyone other than the consumers involved in the class action. • Not engage in any kind of professional activ- ity that competes with the companies or professionals against whom they are bringing the action. In addition to the parties already deemed as legitimate, the Directive now being transposed also gives each member state legitimacy to be a party to cross-border actions, having to answer to entities in other countries for possible national offences. Although private individuals do not have the autonomy to exercise the right of action, it is they who are represented, who are harmed and it is to them that compensation is owed. Although some scholars criticise the permanence of the opt-out system, which is also characteristic of many of the world’s class action systems, there is no change in this respect. In other words, it is not necessary for the injured party to dem- onstrate an interest in the action in order to be legitimately represented. However, this will not be the case for those who are injured but do not have their habitu- al residence in Portugal. In order to be bound by the decision of the class action, those who are not habitually resident in Portugal but have been injured in Portugal must explicitly express their wish to also be represented at the time the action is brought, under the terms of Article 12 of Decree-Law 114-A/2023.
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