Portugal has a set of rules regarding collective redress mechanisms. In this sense, the Portuguese Parliament passed Law 83/95, of August 31st, 1995 (entering into force 60 days later). This law regulates the acção popular (popular action) and the right of citizens to participate in administrative procedures in order to influence decisions of Public Administration (subject not related to collective redress). It is highly remarkable that there are several types of popular action: preventive popular action, popular action to contest administrative decisions, and popular action for compensation of damages, including collective redress.
Although the popular action is the main collective redress mechanism, reform of the Administrative Courts entered into force in 2004. The relevant legislation brought the concept of 'mass processes', regulated by article 48 of the Code of Administrative Court Procedure, approved by Law 15/2002, on 22nd February. In this mechanism, whenever more than 20 cases are initiated, and they relate, for instance, to the same material or legal relationship, only one or some processes (depending on judicial discretion) are referred to for judgement. The final decision may then, with certain requisites being verified, be applicable to other cases that were suspended.
Regarding its scope of application, 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 (this is stipulated by the Constitution - cfr. Article 52, no. 3).
Standing rules are also considerably 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 to above, regardless of whether they have a direct interest in the claim 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)).
Popular action may follow any of the procedures stipulated by the Civil Procedure Code. This means that, once initiated, the action is conducted as a normal procedure, although with several particularities stipulated by Law 83/95, of August 31st. There are no special provisions on certification criteria. Further, participation of foreign plaintiffs is not subject to any special requirements.
As stated above, in those cases regarding mass processes, where the mechanism is used for collective redress, only one or some processes (depending on judicial discretion) are conducted for judgement as regular action(s). The final decision may, with certain requisites being verified, be applicable to other cases that were suspended.
At its foundation, Portuguese popular action is an opt-out system for collective redress. It has some particularities that may be stressed out, such as the possibility of replacing the claimant by the public prosecutor (who is a magistrate - Ministério Público) in those cases where he or she finds the proposed settlement agreement not fair considering the interests involved. Judicial decisions have overall effectiveness however, they do not cover subjects that have opted-out. 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.
When acção popular is used for collective redress, the remedies are: 1) Civil liability for the compensation of damages. This liability may be based on fault (negligence or dolus), but also can be effective regardless of fault, when the conduct derives from a dangerous activity. According to art. 22 of Law 83/95, of August 31st, subjects are entitled to receive compensation under the general liability rules within three years after the judgment. The unclaimed amounts revert to the Ministry of Justice; 2) Conservatory and temporary measures, under the general rules of the Civil Procedure Code.
Regarding costs, preliminary costs are not demanded against the claimant. After the judgment, the claimant is exempted of any payment in cases of a favourable (even in a partially favourable) judgment. In cases where there is a non-favourable judgement, costs are decided by the court, up to a maximum of 50% of regular costs, taking into account the economic situation of the claimant and groundings for the non-favourable judgement.
BIICL has recently worked with the German public body, the Gesellschaft fur internationale Zusammenarbeit (GIZ) on a collective redress project....