The judicial system Portuguese has a civil jurisdiction, with judicial courts, which judge civil and criminal matters, and the administrative jurisdiction, where the administrative and tax courts, are included. In both, the courts are organized in three degrees.

The constitutionality of the laws is judged by the Constitutional Court, which is assigned the function of judging the conformity of the laws or the interpretation of the rules contained in these with the Constitution of the Portuguese Republic.

The use of arbitration as a means of resolving disputes is admitted in Portuguese law in civil and commercial matters as well as in tax matters, provided that the dispute does not belong to the exclusive jurisdiction of the judicial courts and is a right of an asset nature.

As for civil jurisdiction, the Supreme Court of Justice is the supreme court and has national jurisdiction. The Supreme Court of Justice decides the appeals of the lower courts, knowing only matters of law.

The Courts of Appeal are the courts of second degree of civil jurisdiction whose jurisdiction extends to several districts. It is essentially up to these courts to know the appeals of the decisions of the lower courts.

The courts of first degree decide civil, criminal, commercial and labor actions.

There are 23 courts of first degree in the national territory, which unfold in judgments of generic jurisdiction and specialized jurisdiction (civil center, civil place, criminal center, criminal place, place of small crime, criminal instruction, family and minors, work, trade and execution), depending on the matter and the value of the action.

Also included in the courts of extended territorial jurisdiction which have specialized jurisdiction and are aware of certain matters: (i) the Courts of Execution of Penalties, (ii) the Maritime Court, based in Lisbon, (iii) the Intellectual Property Court, based in Lisbon, (iv) the Court of Competition, Regulation and Supervision, based in Santarém, and (v) the Central Court of Criminal Investigation, based in Lisbon. In the judicial system there are also “Justices of Peace”, extrajudicial courts that adopt a simplified procedure aimed to swift resolution of disputes.

The jurisdiction of “Justices of Peace” extends, especially to civil property issues whose value does not exceed €15.000.

It is up to the administrative jurisdiction to resolve issues arising from administrative and fiscal relations.

The bodies of the administrative and fiscal jurisdiction are: (i) the Supreme Administrative Court, (ii) the central administrative courts, and (iii) the administrative courts of the circle and the tax courts.

The Supreme Administrative Court is the highest body of the hierarchy of the courts of the administrative and fiscal jurisdiction, with two chambers: an administrative litigation section and a tax litigation section.

The Central Administrative Courts are the courts of second degree of the administrative jurisdiction. In Portugal there are the Central Administrative Court South, based in Lisbon, and the Central Administrative Court North, based in Porto.

These courts have jurisdiction to deal with the appeals of decisions of the administrative courts of the circle and the appeals of decisions of the tax courts.

Finally, it is for the Administrative Courts of Circle and Tax Courts to decide, at first degree, the proceedings within the scope of the administrative and fiscal jurisdiction that are related to administrative matters.

In general, courts have the power to issue decisions regarding any matter to be determined in the proceedings, which include the powers to order the payment of sums of money (in any currency), grant injunctions against the parties, order the performance of contractual obligations, order the rectification, setting aside or cancellation of deeds or other documents, declare divorces, order the division of assets caused by the death of his owner, etc.

Courts may also, following a request of an interested party or on their own accord:

  • Know exceptions that prevent the court from knowing the merits of the case or that consist of invoking facts that prevent, modify or extinguish the legal effect of the facts articulated by the author;
  • Declare protective orders;
  • Inspect things or persons in order to clarify any fact that is of interest to the decision of the case, and may go to the place of the question or order reconstitution of the facts, when it deems it necessary; or;
  • Requiring a party to make an interim payment on account of the claim or to pay the costs of the process.
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The claim and the defence

Litigation begins when the plaintiff files a petition to the court (petição inicial), detailing what the defendant has done or failed to do that caused damage to the plaintiff, specifying the basis, factual and legal, for his claim against the defendant.

After being served with a plaintiff’s claim, the defendant has a 30-day deadline to respond to the plaintiff. The defence is always provided in writing in the form of a briefing addressed to the court (contestação).

 

The preliminary hearing

After the claim and defence are filed in court, the judge will schedule a «pre-trial» meeting to attempt a settlement between the parties and consider any delaying objections alleged and, if possible, the merits of the case.

If the settlement fails, the «pre-trial» meeting will serve to discuss the facts and matter of law of the case, where the judge may decide on procedural questions or immediately on the merits of the case, determine the terms of the dispute and schedule the final hearing.

 

The trial

The final hearing starts with an attempt of settlement between the parties. If the settlement fails, the final hearing continues with the submission of evidence, which may include the depositions of the parties, expert testimonies and the depositions of witnesses.

Within 30 days after the final hearing, the court will rule on the case.

 

Challenging the decision

Judgments of the courts may be appealed depending on the value and of the subject matter. Decisions in actions regarding the status of a person or in actions for allocation of the house of family dwelling are always subject to appeal.

Common reasons for challenging a court’s decision are errors in the interpretation or application of the law by the court or disregard of evidence.

Depending on the circumstances, the Court of Appeal will either confirm the ruling, reverse the ruling, or order the court of first instance to conduct a new trial.

After a ruling is given by the Court of Appeal, the parties may also appeal to the Supreme Court of Justice (recurso de revista), except the decision of the Court of Appeal that confirms the decision of the Court of First Instance.

 

Court Fees

Judicial or procedural costs are generally equivalent to the amount spent by the public service of justice enforcement by the courts.

The Constitution of the Portuguese Republic guarantees access to the courts for all citizens, but this does not imply the gratuity of the justice services, only that the cost to pay is not so high that it considerably hinders access to justice. This does not mean, however, that the procedural costs correspond to or allow the actual costs of the proceedings to be covered.

Court costs must be paid for each legal action brought to court, the amount of which depends on the value of the case.

The part costs are the legal costs incurred by the winning party and which will be borne by the other party if the plaintiff so requests. The amounts are subject of a discriminatory note, in which all the essential elements relating to the proceedings and the parties must be included.

As a rule, the appeal cost is approximately 50% of the cost of the legal action. For legal cases worth more than €250.000,00, the total cost of the case, including court fees, part costs and appeals to the Court of Appeal and the Supreme Court of Justice corresponds to approximately 3.6% of the value of the case. If the first judicial decision is not confirmed by the appeal court(s), the unsuccessful party shall be ordered to pay all costs of the proceedings.

The World Bank «Doing Business 2020» Report estimates that court fees in Portugal correspond to 17.2% (lower than the OECD average of 21.5%) of a claim worth approximately €36,691, including court costs, enforcement costs and lawyers' fees. For higher value claims, the total cost is usually lower than this estimate.

Claim costs include the judicial fees, the winning party costs and other costs incurred during the proceeding, such as experts’ fees.

The Constitution of the Portuguese Republic guarantees access to the courts to all citizens, but this does not mean that the judicial services are free of charge, only that the cost to pay is not so high that it considerably hinders the access to justice. This does not mean, however, that the procedural costs correspond or cover the actual costs of the proceedings.

Judicial costs must be paid for each court action, the amount of which depends on the value of the case.

The court fees must be paid at the beginning of the lawsuit. However, if the case value exceeds €2750 an additional payment may be required at the end.

Court fees depend on the value of the action, for example:

  • For a court action worth €50,000: €242;
  • For a court action worth €100,000: €2,754;
  • For a court action worth €250,000: €4,284.

The party costs are the legal expenses incurred by the winning party and will be borne by the losing party if the winning party so requests. The amounts are subject to a justifying note discriminating each one of them, which must contain all the essential elements relating to the case and the parties.

The estimated party costs for the losing party would be, e.g.:

  • In a court action worth €50.,000: €1,428;
  • In a court action worth €100,000: €1,836;
  • In a court action worth €250,000: €2,856.

Typically, the cost of appeals is about 50% of the cost of a first instance claim. In total the cost of an action plus appeals up to the Supreme Court would cost approximately 3.6% of the claim value for claims worth above €250,000. If the decision is overturned the appealed decision costs revert to the losing party.

The World Bank «Doing Business 2020» Report estimates that court fees in Portugal correspond to 17.2% (lower than the OECD average of 21.5%) of a claim worth approximately €36,691, including court costs, enforcement costs and lawyers' fees. For higher value claims, the total cost is usually lower than this estimate.

Relevant legislation

Constitution of the Portuguese Republic [Portuguese] [English]

Code of Civil Procedure [Portuguese Only]

Administrative Proceedings Code [Portuguese Only]

Code of Tax Procedure and Proceedings [Portuguese Only]

Voluntary Arbitration Law [Portuguese Only]

 

Macedo Vitorino's briefings

«Negotiating a Corporate Restructuring» (2021)

 

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