In the context we are dealing with here, enforcement is the legal action through which a citizen or a legal person calls on a court to take appropriate measures to ensure that effective reparations are made in compensation for the infringement of one of his or its rights. It is, therefore, a demand made through legal channels for an obligation to be fulfilled and the actual enforcement of this demand.
Enforcement can refer to the payment of a sum of money, the handing over of a particular item and the fulfilment of a positive or negative obligation, that is, the obligation to do something or to refrain from doing something.
Both in the case of enforcement for the handing over of a particular item and in the case of enforcement for the fulfilment of an obligation, if the party against who enforcement is sought does not fulfil the obligation, this will be converted into an enforcement for the payment of a sum of money.
In this latter type of action, if the debtor does not pay voluntarily, his assets or rights are seized - and, in special cases, so are the assets or entitlements of third parties. This happens when the assets are linked to a loan guarantee or are the object of an action carried out to the detriment of the creditor. After that, the money is handed over directly to the creditor, or the seized assets are assigned to him, or the amounts taken from income are paid, or the assets are sold and the proceeds are made over to the creditor.
Enforceable titles or decisions are court orders, any kind of decision made by the judicial authorities which require the fulfilment of an obligation, decisions made by arbitration courts or tribunals, documents written or authenticated by a notary originating in the constitution or recognition of an obligation, private documents, signed by the debtor, establishing or recognising pecuniary obligations, the amounts of which are determined or can be determined by simple arithmetical calculation, or which lead to the recognition of the obligation to hand over an item or the need to fulfil an obligation, and those documents which, by special provision, are attributed enforceable status - such as, for example, cheques, promissory notes, payment orders, injunction requests which have been granted enforceable status and the minutes of joint property owners’ meetings.
These titles are always enforced in the context of a case being heard in a court.
For an enforcement based on a decision made by Portuguese courts, the competent court is the court of first instance in which the case was heard.
When a declaratory action has been brought in the Appeal Court or the Supreme Court, the competent court for enforcement is that of the debtor’s domicile, except in the case of an action in which one of the parties is a judge, his spouse, certain family members or a person with whom he shares the same household and the court which would have been competent is that in which the judge serves. In this case the competent court is the nearest district court.
If the decision was handed down by arbitrators in an arbitration which took place in Portugal, the competent court for enforcement is the district court of the place where the arbitration took place.
As for the other enforceable titles, the general rule to be followed is that the competent court for enforcement is the court for the place where the obligation is to be fulfilled.
However, if the enforcement is for the handing over of a particular item or for the collection of a debt with a real guarantee, the respective competent courts are the court of the place where the item is to be found or the court of the place where the items used as the guarantee are situated.
When the action for enforcement should be brought in the court of the debtor’s domicile and he does not have a domicile in Portugal but has assets here, the jurisdiction pertains to the court for the place where these assets are located.
Except if the law determines otherwise, it is up to the enforcement agent, acting under the supervision of the judge, to carry out all measures involved in the enforcement process, including summons, notifications and publications.
These tasks are carried out by an enforcement solicitor appointed by the applicant or by the court registrar from those registered in the district or adjoining districts, or, if there are none available, from those registered in another district of the same legal circuit. If there is no enforcement solicitor registered in the legal circuit or if there is some other hindrance, these duties, with the exception of those specifically attributed to the enforcement solicitor, can be carried out by a legal official appointed according to the assignment rules. In such a case, the duties of the enforcement agent are carried out by the legal official or clerk attached to the section of the court in which the enforcement is being dealt with.
The enforcement solicitor is a participant in the process who, under the supervision of the “Câmara dos Solicitadores” (Chamber of Solicitors) and under the functional control of the judge for the case, carries out the specific tasks of the enforcement agent and other duties which may be attributed to him by law.
The appointed enforcement solicitor can only be dismissed by decision of the enforcement judge, taken ex officio or at the request of the applicant, on the grounds of deceitful or negligent action or serious violation of the duty imposed on him by the respective statute. The reason for any such dismissal will be notified to the Chamber of Solicitors.
In enforcements for legal fees, the enforcement agent is always a legal official.
Any duties which would involve travelling outside the area of the district of the enforcement and the adjoining districts, or outside the metropolitan areas of Lisbon or Oporto if the district in question is part of these, are, except for reasons which make such a thing impossible or extremely difficult, carried out at the request of the appointed enforcement agent and, when the latter is a solicitor, under his responsibility, by the enforcement agent for that area.
The enforcement solicitor can, under his responsibility, entrust those duties which do not involve acts of seizure, sale, payment or any other act related to enforcement, to an employee working for him who is accredited by the Chamber of Solicitors.
In enforcement cases involving amounts exceeding that dealt with by the Court of Appeal (€14 963.94) the use of a lawyer is always compulsory.
In enforcement cases involving amounts of between €3 740.99 and €14 963.94, it is only compulsory to appoint a lawyer when the enforcement has been contested or when there is some other procedure which follows the declaratory action.
In enforcement cases involving amounts of not more than €3 740.98, it is not compulsory to appoint a lawyer even if the enforcement is contested. The various parties involved can take part in the process.
The enforcement costs comprise the legal fee and charges. These include payments for advanced expenses, for payments made or advanced to any entities, for payments owed to anyone who takes part in the process on an occasional basis, for transport expenses and cost allowances, for the reimbursement of the State for expenses with legal aid, including, among other things, these related to fees paid or advanced in the context of the same, and for the cost of summons by a legal official at the creditor’s request. These costs also include the fees of the enforcement solicitor, duly substantiated expenses incurred by the enforcement solicitor and the amounts spent on the depositing of assets, notably the remuneration of the trustees.
The fees payable to the enforcement solicitor are established by law depending on the acts carried out.
The claim (obligation to be enforced) must be certain, due and net.
The enforcement must be brought against the person who in the enforceable title is named as the debtor.
If succession has occurred in the right or the obligation, the enforcement should be brought against the heirs of the persons named in the enforceable title as debtors. In the enforcement request itself the applicant will set out the facts proving succession.
The enforcement of a debt with a real guarantee (real guarantees are obligations to withhold income, pledges, mortgages, preferred claims, rights of retention, confiscation and seizure) on third party assets will be brought directly against that third party if the applicant wishes to enforce the guarantee, notwithstanding the fact that the debtor can also be sued straight away.
When the enforcement has only been brought against the third party and it is known that the assets burdened with the real guarantee are insufficient, the applicant can, in the same process, request the continuation of the enforcement proceedings against the debtor, who will be ordered to fully satisfy the claim. When the burdened assets belong to the debtor but are in the possession of a third party, the latter can be sued right away together with the debtor.
All of the debtor’s assets which can be seized can be subject to enforcement. In cases specially provided for by law, third party assets can be seized if the enforcement has been brought against that third party.
The seizure is limited to the assets necessary for the payment of the debt in question and the foreseeable costs of the enforcement. Seizure is subject to special conditions.
Thus only objects and rights which can be evaluated in pecuniary terms can be seized. Assets which are not traded cannot be seized. There are also legal limits to seizure which render some assets unable to be seized either totally, partially or only under certain conditions.
The following cannot be seized under any circumstances:
Except where the enforcement is for payment of a debt with a real guarantee, the assets of the State and other public legal persons, those of entities holding public works or public service concessions, or those of legal persons of public utility which are specially allocated to purposes in the public interest are exempt from seizure. Also exempt from seizure are the working tools and objects essential for the pursuit of the debtor’s professional activity or vocational training, except where:
The following cannot be seized:
The amount of money or the bank deposit resulting from the satisfaction of a claim for which seizure was not possible cannot be seized, in the same way as the original claim could not give rise to seizure.
Except as regards matters which cannot be alienated by the parties, it is possible through an agreement between the parties to limit the debtor’s liability to some of his assets if the obligation is not being voluntarily fulfilled.
Fixed assets, moveable assets, purchase rights and expectations, bonuses or income, bank deposits, jointly owned assets, and shares in companies and commercial establishments can be the object of an enforcement.
The act of seizure deprives the debtor of the right to dispose of the asset or entitlement. For the purpose of the enforcement, the alienation, burdening or renting of the seized assets is irrelevant.
Under current enforcement rules, the debtor is generally not appointed as the trustee of the assets. The debtor is entrusted with that duty in specific situations, namely when the creditor gives his approval or when the seized asset is the debtor’s normal place of residence.
If the debtor is appointed as the trustee of the assets and does not fulfil his obligations, he can be stripped of that duty by a decision taken by the judge responsible for the case. If he does not fulfil the obligation of presenting the seized goods belonging to him within five days of receiving an order to do so, and fails to justify such non-presentation, the legal seizure of assets belonging to him, of sufficient value to guarantee the value of the deposit, the payment of legal costs and the additional expenses incurred by his action, is immediately ordered. He may also be given a procedural fine and may incur criminal liability.
Banks which are instructed to carry out the attachment of bank account balances must, within 15 days, inform the enforcement agent of the balance of the account or of the non-existence of any account or balance.
The attachment of a deposit held in an institution legally authorised to take it, is carried out through a notification, preferably through electronic communication, and enforced by court order.
The notification is made directly to the banks, expressly stating that the existing balance or the share which the debtor has in that balance must be frozen from the notification date and can only be accessed by the enforcement agent up to the limit of the debt being enforced plus the foreseeable expenses of the enforcement.
The bank is responsible for the bank balances held there at the date of the notification.
Sanctions for contempt of the obligations placed by the order on the third party appointed as the trustee are the same as those set out above as applicable to a debtor who is appointed to carry out such functions.
No validity period is lain down for such measures nor are there any limits for the duration of the enforcement order and the measures required by it.
Even where the legislator establishes special validity periods, as is the case for the records of seizure of fixed assets (which expire after ten years), this does not automatically cause the validity of the enforcement measures to expire since such records can be renewed for equal periods of time, without any limit to the number of renewals.
The only exception is that the debtor can request that the seizure be lifted and that the creditor be ordered to pay the costs generated by his omissive behaviour if, through the creditor’s negligence, the case has been idle for more than six months (in other words, if in this period of time no request has been made with a view to its advancement).
It is possible to appeal against decisions made granting enforcement orders if the case involves an amount greater than the limit for the court in which the case is being heard (the limit for courts of first instance is €3 740.98) and the contested decisions are unfavourable to the appealing party by an amount which is greater than half the limit for this court.
The debtor can, also, oppose enforcement after the citation, whether this is done prior or after the seizure. With the objection to the enforcement he must also include an objection to the seizure if, before this, he has not been summoned. The debtor’s spouse, also cited when the seizure order is on fixed assets or a commercial establishment which the debtor cannot freely dispose of, or on assets jointly owned by the couple, can also lodge an objection to the enforcement or the seizure.
If the seizure, or any act legally ordered for the holding or handing over of assets, infringes the right of possession or any other right incompatible with the seizure or the scope of the measure, held by a person who is not a party in the case, the injured party can bring an action for replevin.
Appeals are lodged by the main defeated party.
An appeal can be lodged by the debtor or by his spouse and actions for replevin can be lodged by anyone who is not a party to the case and who would be adversely affected by the carrying out of the seizure.
The competent court for judging the appeal is the court of appeal of the legal district in which the court of first instance which issued the contested decision is located.
Appeals and actions for replevin are conducted as attached proceedings (in a case physically linked to the enforcement case but independent from it) and have the same structure as a declaratory action (case in which the parties’ arguments are analysed, evidence put forward is taken and a decision is made which assesses these arguments and rules on their correctness). The court which is competent for preparing such a decision is that in which the enforcement case is being heard.
The time limit for lodging appeals is ten days from the notification of the decision.
The time limit for opposing enforcement or seizure is twenty days from the date of the summons. When the reason for the opposition arises at a later stage, the time limit is calculated from the day on which the respective fact occurred or from the day when the party who seeks to lodge opposition becomes aware of it.
The time limit for the debtor’s spouse - also cited when the seizure involves fixed assets or a commercial establishment which the debtor cannot freely dispose of, or on assets jointly owned by the couple - lodging an appeal against the enforcement or the seizure is ten days or is calculated up to the end of the time limit granted to the debtor, if this ends later.
Actions for replevin brought by third parties must be lodged within thirty days of the date of the measure which infringes the party’s rights or within thirty days from the moment when the party became aware of it. Such actions cannot be brought after the assets have been legally sold or auctioned.
The effect of the appeal depends on the nature of the decision made. As a rule, appeals against decisions given in an enforcement case do not have the effect of suspending enforcement.
With regard to opposition where there has been no previous citation, the judge’s decision that the appeal is admissible suspends the enforcement. If there has been a summons prior to the enforcement, enforcement is suspended only if the debtor provides a bond or if the signature of the private document which serves as the enforceable title has been disputed and a document which serves as proof has been presented right away.
If the opposition to the enforcement is judged to be valid, the enforcement is fully or partially ended.
The decision by the judge, after carrying out preliminary probative steps, that an action for replevin brought by a third party is admissible, suspends proceedings in relation to the assets in question. Possession is also restored on a provisional basis if the applicant has so requested. The judge can, however, make this conditional on a bond being provided.
Once a declaration confirming the enforceability of a decision has been obtained, if the decision is to be enforced in Portugal the holder of the claim must submit to the court an application following a legally approved model and signed by himself or his legal representative (see point 2.5 regarding compulsory legal representation) for the claim to be enforced.
If enforcement does not include a recognition process the applicant must attach a copy of the decision by the foreign court and a translation with a certificate of recognition of the decision.
For the purposes of enforcing the European Enforcement Order the claim holder must present an identical application with an authentic certificate of the judgment, an authentic certificate of the European Enforcement Order and a translation into Portuguese certificated by a person qualified to do so.
All these enforcement procedures are governed by Portuguese law.
The enforcement application should be sent to the district court at the place of domicile of the person subject to enforcement or, if that person is not domiciled but has assets in Portugal, to the district court which has jurisdiction over these assets.
If a court is responsible for enforcement in Portugal, the enforcement application should be sent there.
The application should be made in Portuguese.
Accompanying documents should also be translated into Portuguese.
Yes, legal costs have to be paid for enforcement of a judgment.
See point 2.6.
If a lawyer has to be used, his/her fees will of course also have to be paid.
See point 2.5.
Additional information can be found at:
This information will be continuously updated. It is not binding, simply reflecting but in no way interpreting the content and tenor of the legislation concerned. It is designed to set out in simple and general terms certain aspects of the matter in question.
You are advised to seek the help of professionals whenever necessary.Top
Last update: 31-08-2007