1. General description
As stated above Law 83/95 of August 31st provides a general collective redress mechanism in Portugal. This law regulates the acção popular (popular action).
The popular action is the main collective redress mechanism and may follow any of the procedures stipulated by the Civil Procedure Code, namely for the protection of public health, environment, quality of life, protection of consumers, cultural heritage and public domain.
Popular action is a considerably broad mechanism, being applicable when the following interests are involved: public health, environment, quality of life, protection of consumers, cultural heritage and public domain. In fact, its rules are not restricted to a particular area or sector. Collective redress rules are contained in articles 22 et seq. We may follow the analysis of these rules made by HENRIQUE SOUSA ANTUNES : 'Article 22, which sets down the subjective liability of the agent, distinguishes between compensation for injury to identified holders of interests, calculated under the general terms of civil liability (3) and the global fixing of compensation for violation of the interests of unidentified holders (2). Interpretation of the rules appears to give rise to different readings. Summarizing the trends in question, what is at issue is the greater or lesser extent of collective protection of homogeneous individual interests. There are those who restrict the global compensation to violation of collective or diffuse interests or, at least, to situations where the amount due to each of the injured parties is of a small amount, not justifying the costs inherent in calculating the individual harm. That is the reason why, together with the need to prevent repetition of the illegal behaviorbehaviour regarding repair of the individual injury, it is legitimate to index the compensation to the profits of the agent. In our opinion, as, indeed, has already been written on another occasion, the mention that the law makes of identified holders of rights is understood as a reference to those who, in fact, intervene in the action or reject representation by the claimant. (...) Between the conditioning of collective appreciation of civil liability for violation of homogeneous individual rights or interests by the prevalence of common issues over individual issues, which we consider appropriate, and its restriction to harm of low value, wide scope should be recognized for standing for global compensation'.
Standing rules are quite broad. Any citizen in the enjoyment of their civil and political rights has standing, as well as associations and foundations that defend the interests referred above, regardless of whether they have a direct interest in demand (e.g. Associação Portuguesa para a Defesa do Consumidor (DECO) (Portuguese Association for Consumer Protection), Quercus - Associação Nacional de Conservação da Natureza (National Association for Nature Conservation)). This is also stated by article 26-A of the Civil Procedure Code.
b. Opt-in; opt- out procedure
Portuguese popular action is basically an opt-out system. This point is regulated by articles 14 and 15 of Law 83/95, of August 31st. The claimant represents, without the need for a mandate or express authorization, all the other holders of the rights or interests in question.
After the procedure is initiated by the entity with standing, interested parties are notified within the term fixed by the judge: (a) to intervene in the main proceedings; (b) to declare whether they accept to be represented by the claimant; or (c) to exclude themselves from this representation. In the latter case, the final decision will not be applicable to them. In the event that the interested parties do not take any of the actions described above, the law considers that as an acceptance of the representation. Nevertheless the representation by the claimant can be expressly refused by interested entities until the end of the collection of evidence, or equivalent stage.
To protect the interest of subjects that are represented by the claimant, the Public Prosecutor (Ministério Público) has the responsibility of protecting legality, and may replace the claimant in the case of withdrawal from the procedures, transaction or conduct which is harmful to the interests at stake (Article 16, no. 3 of Law 83/95, of 31stof August).
c. Competent court
Civil courts or administrative courts, depending on the nature of the conflict, can have competence to hear a popular action. If administrative rules are applicable, administrative courts are competent. If the conflict is regulated by private law (in a very broad sense), civil courts are competent.
d. Participation of foreign plaintiffs
General rules are applicable which means the claimant can be a foreign citizen.
e. Certification criteria
There are no provisions on certification on Law 83/95, of August 31st. The claimant represents all parties interested in the process.
f. Main procedural rules
Civil popular action takes "(...) any of the forms provided for in the Civil Procedure Code" (Article 12, no. 3 of Law 83/95, of 31st August). The action is, therefore, declaratory, condemnatory or constitutive (Article 10, no. 2 of the Civil Procedure Code) depending on the interests involved.
As is stipulated by article 19 of Law 83/95, of August 31st, judicial decisions have overall effectiveness. However, they do not cover parties that have opted-out.
There are exceptions to the erga omnes effects, such as where the case is dismissed due to insufficient evidence or where the judge decides otherwise based on reasons specific to the case in question.
Law 83/95, of August 31st stipulates the publicity of the judgment (after res judicata) in two newspapers thought to be read by those interested in the respective content. The defendant has to pay for this publication.
g. Evidence/ discovery
As far as the Portuguese system is concerned, civil procedure has - in general - an important stage, which is called audiência final (final hearing), conducted by the judge or judges. This includes the taking of evidence and also applies to a popular action.
Nevertheless, article 17 of Law 83/95, of August 31st states that within the range of the fundamental questions defined by the parties, the judge is responsible for his own enterprise on collecting evidence, and not being obliged by the will of the parties.
h. Multi-stage process
Under article 13 of Law 83/95, of August 31st, the possibility of dismissal of the complaint is provided for if the judge considers that it is highly improbable that it will proceed. This decision can be taken after consultation of the Public Prosecutor and after the preliminary inquiries that the judge considers justified have been completed, or upon either the claimant's or Public Prosecutor's request.
4. Available remedies
When acção popular is used for collective redress, one of the remedies is Civil liability for the compensation of damage. This liability may be based on fault (negligence or dolus), but also be effective regardless of fault, when the conduct derives from a dangerous activity. In addition, conservatory and temporary measures are potential remedies, under the general rules of the Civil Procedure Code.
Regarding criminal remedies, article 25 of Law 83/95, of August 31st, states that the claimant of a popular action can make a claim to the Public Prosecutor (Ministério Público) and can also join criminal proceedings.
5. Costs & funding
Article 21 of Law 83/95, of August 31st, stipulates that the court decides on the legal costs, depending on the complexity and the amount in question.
Preliminary costs are not demanded from the claimant. After the judgment, the claimant is exempted from any payment in cases of a favourable (even a partially favourable) judgment. In cases where there is a non-favourable judgement, costs are decided by the court and can be up to a maximum of 50% of regular costs - taking into account the economic situation of the claimant and groundings for the unfavourable judgement.
Under the general rules, legal aid is available, but only when the claimant proves to be in economic need.
Quota litis is not allowed under the Portuguese legal system (article 101 of the Bar Association Statute, approved by Law 15/2005, of January 26th).
6. Number of claims
Quoting HENRIQUE SOUSA ANTUNES: 'On consultation of the case reports of the Supreme Court of Justice (the exercise of popular action of a civil nature), it seems fair to conclude that the law of popular action has been applied very scarcely, whether due to the fact that the intervention of civil society is still in its early stages, or due to the prohibition on quota litis agreements or to the doubts that the application of Law 83/95 has raised'.
7. Particularities/ Problems if this mechanism is used in cross- border cases
There are no particularities to report
The fact that the Portuguese legislator did not establish any system for sharing the global compensation between injured parties has opened up the opportunity for criticism.
António Payan Martins states that : '(...) it seems to us that de iure condendo (in law as it should be) the payment should be made by resorting exclusively to arbitration, setting up a highly specialized court or arbitration committee alongside the court in question which processes the payment of all the indemnities. This process would thus be relatively simple, non-litigious, informal, and with low costs and would increase the number of injured parties that would come to court to receive compensation'.
Merricks v Mastercard Inc : Collective Actions Re-invigorated...