PORTUGAL Trends and Developments Contributed by: Alexandra Nascimento Correia, Guilherme Santos Silva, Gonçalo Malheiro and Laura Cecília Lourenço, Abreu Advogados
Costs and Financing Article 20 of Law 83/95 already provided for an exemption from costs as long as the claim was judged to be partially well-founded. Good practice has continued and is still enshrined in Decree-Law 114-A/2023, which refers to Decree- Law 34/2008 (the “Procedural Costs Regula- tion”). There will therefore be an exemption as long as the claim is not manifestly unfounded, under the terms of Article 4 of the Procedural Costs Regulation. Despite the provision for exemption from legal costs and facing the costs that always exist when litigation is initiated, one of the great nov- elties and changes that the Directive has brought to the system is the regulation of the financing of class actions, guided by transparency and inde- pendence, avoiding litigation in bad faith. The financing of class actions, as set out in Decree-Law 114-A/2023, provides for the pos- sibility of these actions being financed without allowing financial power to influence in any way the procedural strategy or the decision itself, for which, in addition to the financing agreement having to be put before the court, the plaintiff has to be independent of its financier, who, in turn, cannot be a competitor in any way with any of the defendants. This is a hands-off funding system, and the funder has the right to be informed and can give a non-binding opinion. Consideration could be given to financing these actions with public funds. It’s true that, on the one hand, this public investment would demon- strate the importance of preserving and guaran- teeing the rights that class actions are intended to protect. However on the other, in addition to all the bureaucracy and limitations that charac-
terise a public fund, it would not be rare for this investment to give rise to conflicts of interest, for example if the state itself was the offending plaintiff. Information and Knowledge As well as the great banner of the right to infor- mation and knowledge, which is provided for in all consumer rights legislation, guidelines have been enshrined that are in line with the need to keep consumers informed, protected and as up to date as possible on what is happening in class actions of interest to them. Examples of this are Articles 7.1(f) and 19 of Decree-Law 114-A/2023, which make it obligatory for claimants to make constant updates on the proceedings they are involved in available on their website. They must identify the class action in question as well as the parties and the case number. In addition, they must identify the court where it is being heard and update the status of the judi- cial proceeding, provide its outcome, the overall compensation and the method of distribution to the defendants, if applicable. The DGC was also appointed as the competent authority under the terms of Article 4 of Decree- Law 114-A/2023 and for everything provided for in Decree-Law 114-A/2023 in question. Among other obligations, the DGC must make the list of qualified entities public on its website for the purpose of bringing transnational class actions, of which there are currently two. They must also communicate the number of cas- es pending before the national courts, as well as a summary description of the cases. This must include the type of offence, the parties involved and the outcome of the cases annually to the European Commission at least.
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