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System of portuguese jurisdiction

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published on 4 May 2021 | reading time approx. 4 minutes




International jurisdiction

The international jurisdiction of the Portuguese courts is determined by the general rules of the Portuguese Code of Procedure or the Brussels Ia Regulation.
 
In the case of facts with a foreign element, the Brussels Ia Regulation stipulates that persons domiciled in an EU member state are to be sued before the court of that member state, irrespective of their nationality.
 
If the defendant is not domiciled in an EU Member State, the general rules of the Portuguese Code of Civil Procedure refer to the place of jurisdiction in the country where damage occurred (Art. 71 of the Portuguese Code of Civil Procedure).
 
In addition to the statutory jurisdiction rule, there is the possibility of freely determining the jurisdiction of the Portuguese courts by contractual arrangement.
   

Structure of jurisdiction and judicial channels

Pursuant to Article 209 et seq. of the Constitution, the Portuguese judicial system is essentially divided into two branches: the civil courts and the administrative courts.1 
 
In addition, there is the Constitutional Court (Tribunal Constitucional), which is responsible for monitoring the rule of law in Portugal, and the Court of Audit (Tribunal de Contas), which reviews public spending.
 
A special role in the settlement of disputes is played by so-called peace courts (Julgados de Paz), which are units with their own mode of operation and organisation that have the authority to decide lawsuits in the first instance in civil law matters up to an amount in dispute of 15,000 Euros in a simplified procedure.2 
 
In principle, the Portuguese court structure provides for three judicial instances in the civil area, which differ in terms of hierarchy and local jurisdiction: the Supreme Court (Supremo Tribunal de Justiça) in Lisbon as the highest court, the courts of appeal as the second instance (tribunais da relação) and the district courts (tribunais de comarca) as the lowest instance.
 
While the Supreme Court has jurisdiction over the entire country, the local jurisdiction of the courts of appeal is derived from the respective judicial district.
 
The legal process depends on the subject matter of the relevant facts.
 
A distinction can be made between criminal, family and juvenile courts, and between labor, commercial, maritime and enforcement courts.3 
 
The administrative courts also have a tripartite structure, with administrative and fiscal courts as the first instance, two central higher administrative courts (in the north and south of the country) as the second instance, and the Supreme Administrative Court (Supremo Tribunal Administrativo) with jurisdiction over all of Portugal as the highest instance.4 

 

Legal costs

The legal framework for the court costs derives from the Regulation on the costs of the proceedings, adopted by Legislative Decree No. 34/2008 of 26 February, hereinafter referred to as the Regulation on the costs of the proceedings.5 
 
Court costs in Portugal are a combination of fixed costs and variable costs, depending on the complexity of the case, and are left to the judge's discretion to a certain extent.6 
 
The amount of court costs in civil proceedings is specified in Article 5-7 and in Tables I and II in the Annex to the Regulation on Costs. The court costs shall be paid by the party who requested the proceedings before the proceedings. The same applies to expenses such as fees for experts, translators, interpreters and consultants (Art. 18).
 
The costs of the criminal proceedings are derived from Article 8 and Table III in the Annex to the Regulation on Costs. The costs of the criminal proceedings differ insofar as they are payable only at the end of the proceedings.
 
In addition to the aforementioned court costs, the costs for the lawyer must be taken into account. These are regulated by the Ministerial Order.7   
 
If an appeal is filed, a judicial fee must again be paid.

Obligation to bear costs/obligation to reimburse costs

As a rule, the prevailing party is entitled to compensation for costs in the amount determined by the court in its decision.8 

 

Average duration of proceedings

According to the EU Justice Barometer published by the EU Commission, the average duration of proceedings for civil cases in 2017 is around 250 days in the first instance. In the second instance, the average duration of proceedings is 100 days, while in the third instance it takes an average of 50 days to conclude the proceedings. In a Europe-wide comparison, the duration of civil proceedings in Portugal is thus in the middle range.
 
In administrative proceedings, the average duration of proceedings in the same period under review is 1,000 days in the first instance, 900 days in the second instance and 250 days in the third instance. This makes the duration of proceedings in administrative disputes in Portugal one of the longest in Europe.

 

Interim relief

Portuguese civil procedure law provides for two types of interim relief: general and specific interim relief.9 
 
The purpose of general interim relief (Art. 362 of the Portuguese Code of Civil Procedure) is to prevent irreparable damage to the plaintiff by waiting for the court judgment.
 
The prerequisite for interim relief, in addition to the existence of a right and urgency as a temporal element, is that the right at risk can be effectively protected by an interim measure and that there is no other procedure besides it that is provided for the protection of the right.
 
Specific provisional legal protection is expressly regulated by law and concerns various matters specified in the Code of Civil Procedure, such as provisional restitution of property, seizures or provisional compensation.
 
For example, in the case of a robbery, the owner of a thing can provisionally get his property back if the right of ownership has been made credible to the judge.

  

Recognition and enforcement of European titles and foreign arbitral awards

Legal regulations regarding the recognition and enforcement of foreign judgments can be found in the Portuguese Code of Civil Procedure (Art. 978 et seq.) and in the Brussels Ia Regulation. In addition, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is applicable.10 
 
Accordingly, the recognition of judgments issued abroad is a formal procedure in Portugal, in which the courts examine whether the formal requirements for recognition are met. In practice, this requires the submission of the court decision in certified form with apostille, translations, powers of attorney and supplementary evidence proving the enforceability of a decision in its country of origin.

 
A review of the decision on the merits is not provided for and, in principle, does not take place as long as the decision is compatible with the principles of the Portuguese order.11 
 
The enforcement of foreign judgments takes place in Portugal according to domestic law and depends on whether, for example, a certain object is to be handed over (Art. 859-867 of the Portuguese Code of Civil Procedure) or another act is to be performed (Art. 868 - 877 of the Portuguese Code of Civil Procedure).12 
 
For the initiation of enforcement proceedings, an application must be submitted to the court. This application can be made electronically.13 

1 Vgl. https://e-justice.europa.eu/content_judicial_systems_in_member_states-16-pt-en.do?member=1, last accessed on 1 August 2019.

2 Vgl. https://www.dgpj.mj.pt/sections/english-version/alternative-dispute/gral/peace-courts/, last accessed on 1 August 2019.

3 Vgl. https://e-justice.europa.eu/content_judicial_systems_in_member_states-16-pt-en.do?member=1., last accessed on 1 August 2019.

4 Vgl. https://e-justice.europa.eu/content_judicial_systems_in_member_states-16-pt-en.do?member=1, last accessed on 1 August 2019.

5 Vgl. https://e-justice.europa.eu/content_costs_of_proceedings-37-pt-en.do?member=1, last accessed on 1 August 2019.

6 Vgl. National Report Costs of Proceedings – Portugal, p. 24, available under https://e-justice.europa.eu/content_costs_of_proceedings-37-en.do, last accessed on 1 August 2019.

7 Vgl. Ministerialverordnung Nro 1386/2004 (10 November 2004) and Ministerialverordnung No. 10/2008 (3 January 2008), as amended by Ministerialverordnung No. 210/2008 from 29 February 2008.

8 Vgl. https://e-justice.europa.eu/content_costs_of_proceedings-37-pt-en.do?member=1, last accessed on 1 August 2019.

9 Vgl. https://e-justice.europa.eu/content_interim_and_precautionary_measures-78-pt-en.do?member=1, last accessed on 1 August 2019.

10 Vgl. https://iclg.com/practice-areas/enforcement-of-foreign-judgments-laws-and-regulations/portugal, last accessed on 1 August 2019.

11 Vgl. https://iclg.com/practice-areas/enforcement-of-foreign-judgments-laws-and-regulations/portugal, last accessed on 1 August 2019.

12 Vgl. https://e-justice.europa.eu/content_procedures_for_enforcing_a_judgment-52-pt-en.do?member=1, last accessed on 1 August 2019.

13 Vgl. https://iclg.com/practice-areas/enforcement-of-foreign-judgments-laws-and-regulations/portugal, last accessed on 1 August 2019.

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