Portugal

Status of Digitalisation of ESCP Enforcement Procedures

In Portugal, notifications may be made by registered post, fax and electronic data transmission.

When the parties have designated a judicial representative, electronic communication is made through the software system to support the activity of the courts, at the CITIUS website. For this purpose, the party’s legal representative must previously request registration with the entity responsible for managing accesses to the computer system (article 132, Nos. 1 and 3, articles 247 and 248, all from the Portuguese Civil Procedure Code, and articles 3, 5, 25 and 26, all of Ordinance no. 280/2013, of 26 August). In case the party has not constituted a legal representative, as provided in Article 249 (1) of the C√≥digo do Processo Civil, the communication is made by registered letter addressed to the residence or head office of the party, or to the address chosen to receive the notifications.

ESCP Procedural Aspects

1. Competent Enforcement Authority

In Portugal, the authorities with jurisdiction in enforcement and the power to suspend or limit enforcement are the courts of the place where the case was heard or, in the case of a judgment given in other Member States, the district court of the residence of the defendant (the debtor), according to the information provided, in compliance with Article 25(1) (e) of the Regulation.

2. Rules on Service

The European Small Claims Procedure is conducted using 4 standard forms (A, B, C and D) which are available in all the languages of the Member States in which the regulation applies, through the European E-Justice or, in the case of Portugal, also available on the CITIUS system. The proceedings are mainly written, and the court may hold a hearing if it considers it necessary or if one of the parties so requests.

In Portugal, the proceedings are started by filing form A and presenting it to the competent court together with proof of payment. If payment has not been made, the party will be notified to submit proof of payment. Once the proof of payment has been received, or if there is no response to the notifications, within the time limit set, the registry will analyze whether the form has all the compulsory data filled in and will open a conclusion with information, if necessary.

When an attorney is established, notifications are preferably made electronically, through the CITIUS platform. In this case, the representative must be correctly registered with the entity responsible for managing access to the computer system. According to article 248 (1) of the CPC, notification is presumed to have been made on the third day after it is sent, or on the first working day thereafter, when it is not. If the system cannot be used due to a fair impediment, in accordance with Article 140 of the CPC, notification is only deemed to have been served when the fair impediment is overcome.

If an attorney has not been determined, notifications will be made by registered letter addressed to the residence or registered office of the party, or to the domicile chosen to receive the notifications. In this case, service is considered to have been made on the day on which the acknowledgement of receipt is signed, in accordance with Article 230 of the CPC.

3. Language of the Certificate and Documents to be Appended

Portugal has indicated that it accepts, in addition to Portuguese, English, French and Spanish as languages for the certificate of judgment to be accepted and enforceable.In Portugal, the competent court may request a translation only in cases where a translation is needed to the judgment. However, it is provided that the parties may refuse to receive a document if it is not in the language of the Member State to which it was sent, or in a language which the addressee understands. In this case, the Portuguese court will demand the counterparty to translate the document in question.

4. Enforcement Fees

The Portuguese Regulation on court fees (Regulamento das Custas Processuais) does not include specific provisions on applications within the meaning of the ESCP Regulation, which establishes a European Small Claims Procedure. Therefore, the court fees applied are the same as in ordinary national proceedings, following the general rules of Article 6 of the RCP.

In the event of a counterclaim, as in ordinary proceedings, the value of the two claims will be added together for the calculation of the fee, as per Article 19 of the Regulation, Article 11 of the RCP, and Article 145 (5), Article 530 (2), Article 299 (1) and (2) and Article 297 (2) of the CPC.

Thus, the RCP Table I-A is applied. Finally, in cases which reveal special complexity, the judge may decide to apply the values defined in Table I-C of the RCP, illustrated below:

Court fee (UC[8]) (1)
Value of the legal claim (EUR)A

Artigo 6 (1) , RCP
B

Artigo 6 (2), 7 (2), 12 (1), e 13 (6), all from RCP
C

Artigo 6 (4), e 13 (3), both from RCP
Up to 2.00010,51,5
From 2 000,01 a 8 000213
From 8 000,01 a 16 00031,54,5

[8] At the date of this document, the value of 1 Unit of Account (UC) to consider is EUR 102.

5. Refusal, Stay, or Limitation of ESCP Enforcement Procedures

The review is established to guarantee the defendant the right to react when adversarial proceedings have not been held. The application for revision (Article 18, Regulation ESCP) of the decision is filed in the court that issued the decision to be revised (Article 697, No. 1, CPC) and the applicant must allege the facts constituting the basis of the application for revision (Article 696, CPC). The application for revision can be made: if the application form was not served on him or, in the case of a hearing, was not served on him in sufficient time and in such a way as to prepare his defense; if he was unable to contest the application for reasons of force majeure or due to extraordinary circumstances, without such fact being attributable to him, except if, although he had the opportunity to contest the decision, he did not do so. To file the application for revision, the applicant shall submit a certificate of the decision or the document on which the application is based (Article 698, CPC). If the revision of the decision is admitted, the deadline for requesting it is 30 days after the knowledge or the first effective attachment measure.

Critical Assessment

The intention of reducing costs by not requiring the constitution of a lawyer and being a theoretically quick and simplified process, since it is based on the use of forms and has short deadlines for the resolution of the dispute, can be seen as advantageous. However, we must not forget that not being mandatory to constitute a lawyer is not the same as not needing one, since filling in the forms may not be a simple task for everyone, and any mistake may lead to the rejection of the claim.

Equally relevant to mention is the problem of the lack of expertise and knowledge about the internal instruments of each Member State, in addition to the difficulty in understanding the language and technical specificities of the legal terminology in these languages. Therefore, due to the presence of some undetermined concepts in the ESCP Regulation, which require interpretation by the Court of Justice, instead of reinforcing protection in situations in which the Regulation may be applied, there may be, on the contrary, a feeling of unprotection on the part of citizens who wish to bring this action.

Considering Portuguese Law, there are few situations in which recourse is possible, i.e., the situations of Articles 629 (2) and 696, both of the CPC. In the national database (Court of Justice) no record was found with small claims as the main subject of the decision. Since appeals are exceptional situations, this may be the reason why the databases available in Portugal do not have small claims as the main subject of the decision in higher courts. That is, it is not that the ESCP Regulation is not being used, but it is just that these matters do not reach appeal and therefore are not known.

All these reasons contribute to a lower-than-expected use of the procedure, but technology could be used to circumvent these situations, for example, with the creation of an online platform to better manage these small amount procedures and to disseminate information in a more simplified way.