PORTUGAL Trends and Developments Contributed by: Alexandra Nascimento Correia, Guilherme Santos Silva, Gonçalo Malheiro and Laura Cecília Lourenço, Abreu Advogados
Distribution of Compensation It is already known that the parties, even those who have not expressed a wish to be repre- sented in the class action, may be entitled to compensation. This calculation, when the overall amount awarded does not cover all the damag- es, will be made in proportion to the respective damages that have been presented individually by the injured parties. In the event that the amount of compensation is not claimed in full and even if the claim for this amount is time-barred, under no circumstances will the money be returned to the defendant. Firstly, these amounts cover the plaintiff’s costs, and if there is a third-party funder, it can be paid in a way that will be assessed by the court, respecting certain subjective criteria such as fair and proportionate value analysed in light of the characteristics and risk factors of the respective class action. There is no maximum ceiling that would prohibit, for instance, the funder from see- ing their entire investment reimbursed, as is the case in some countries with legal regimes similar to the one applied in Portugal. The remaining amounts, ie, those that are not claimed by any holder and that have not been allocated to paying the claimant’s costs, fees and expenses, revert to the state as if they were a mere penalty. Therefore, under the terms of Arti- cle 16(b) of Decree-Law 114-A/2023, the state allocates 60% to the Fund for the Promotion of Consumer Rights and 40% to the Institute for Financial Management and Justice Equipment. In general terms and in all non-consumer pro- tection-related class actions, something similar to this is envisaged. With little materialisations, the other amounts, including those that are time- barred within the legal period of three years,
are handed over to the Ministry of Justice to, after payment by the public prosecutor, support access to the law and to the courts that justifi- ably require it, in compliance with Article 22.5 of Law 83/95. Therefore, although there is a real risk that not all injured parties will claim the compensation they are owed, these legal provisions, which are not consensual in all the regimes, guarantee that the amount paid is allocated to instruments that, like Decree-Law 114-A/2023 and the Directive, seek to energise and improve the guarantee of consumer rights and the constitutional rights of the Portuguese population in general. This is yet another factor that encourages the filing of these types of lawsuits. Collective Arbitration In the context of class actions, much has been said about the possibility of linking them with arbitration in an attempt to legally provide for collective arbitration. This system is not entirely new and is already in force in countries such as Spain, France and Brazil. In Portugal, starting with the CRP, the possibility of collective arbitration seems obvious, since a class action can be brought in any court under the terms of Article 52, and arbitration courts are effectively enshrined as such under Article 209 of the CRP. On the other hand, there has been a significant increase in the number of arbitrations in Portugal, which have become an effective alternative means of resolving conflicts which makes it possible to anticipate that arbi- tration may increasingly be used in this type of class action. However, looking at the legislation that regu- lates voluntary arbitration, and in particular Law 63/2011, the Voluntary Arbitration Law (the
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