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The following information relates to protective measures, i.e. the procedural measures "necessary to secure the effectiveness of the legal action" (Article 2(2) of the Portuguese Code of Civil Procedure). They are measures taken before and by a court in order to ensure that the decision in the case will be effective and thus entirely fulfil the practical purpose sought by the party who brought the action and has won the case.
Interim protective measures of this kind are taken if there is merely a likelihood that the right asserted or to be asserted in court is real and if there is a risk of that right's being infringed. The measures are granted on the basis of a summary demonstration and on an assessment of probability or plausibility. They are intended to prevent irreparable loss by eliminating the risk associated with the length of proceedings, i.e. the risk of a change in basic circumstances which may potentially be caused by the time lag.
Protective measures may be precautionary or interim measures, meaning that they are intended to maintain the status quo, so that the decision in the main proceedings does not become divorced from reality and impossible to enforce (for example, measures to prevent the dissipation or loss of assets which may be the subject of an execution order in the future), or to anticipate the court's decision prior to the final judgment (for example, a measure awarding a provisional monetary payment for the subsistence, accommodation and clothing of a claimant for maintenance).
Protective measures can also be non‑statutory or statutory.
The former are not subject to any pre‑defined procedure and it is for the court to adopt the appropriate measure "to secure the effectiveness of the right at risk" (Article 381(1) of the Code of Civil Procedure). They are not used if the risk of loss is covered by a specific measure and are based on procedural rules that apply by default to statutory measures.
Statutory measures follow a pattern laid down in procedural law and are subject to a set of specific requirements and assumptions and specific decision content.
The following are statutory protective measures laid down in the Portuguese system of civil law:
Provisional restitution of ownership is used when the owner has been deprived of his property against his will by physical or psychological coercion, and wishes to have his property provisionally returned to him.
Suspension of corporate decisions is available to partners or shareholders in any kind of partnership or company who wish to obtain suspension of decisions which are contrary to legislation or to the memorandum and articles of association and are likely to give rise to "significant loss" (Article 396 of the Code of Civil Procedure).
Provisional maintenance is a monthly sum designed to ensure, until the first formal payment, that the claimant has the minimum necessary for subsistence, accommodation and clothing costs and for legal costs where he cannot benefit from legal aid.
Provisional compensation is available to injured parties and third parties who are entitled to compensation or maintenance and who, in connection with a claim for compensation based on death or personal injury and in a situation of need or in a situation "likely to seriously jeopardise the subsistence or accommodation of the injured party" request the award of a given monetary amount in the form of a monthly sum pursuant to the rules on provisional compensation for loss in Article 403(1) of the Code of Civil Procedure.
Seizure allows a "creditor who is justifiably afraid of losing the assets guaranteeing his claim" to obtain "judicial seizure of goods" pursuant to Article 406 of the Code of Civil Procedure.
Embargo on new work is available to anyone who considers that "his right to sole or joint ownership or any other right in rem or in personam of use or ownership is infringed as a result of new work or a new service which causes or is likely to cause him loss"; he may "request … immediate suspension of the work or service" (Article 412(1) of the Code of Civil Procedure). The embargo can also be imposed out of court, provided that it is subsequently confirmed by a court. The request for confirmation must be made within five days.
The procedure for impounding goods must be launched where there is a "reasonable fear of the loss, concealment or dissipation of moveable or immoveable property or documents" in order to obtain a description of the goods in the court record (with an indication of the value assigned them by an expert valuer) and have them handed over to a trustee pursuant to Articles 421 and 424 of the Code of Civil Procedure.
See the reply to the previous question.
Except for the embargo on new work, for which it is possible to take initial out‑of‑court action followed by an application for confirmation by a court, all the other protective measures are based on an initial application to a court.
The court with jurisdiction to order such measures is determined on the basis of the following criteria laid down in Article 83 of the Code of Civil Procedure:
Legal representation is compulsory if the value of the protective measure exceeds € 3 740.98 or if an appeal is always admissible.
The value of the measure is determined with reference to the following criteria (Article 313 of the Code of Civil Procedure:)
In Portugal the tasks of enforcement agent are performed by enforcement solicitors and court officials. For protective measures, the tasks of such agents are to perform summonses and carry out seizure and impounding decisions.
The court fees for these measures are paid in a lump sum when the initial application is made and correspond to the values given in the following table:
|Value of protective measure||Fees for each party/all parties (units of account)|
|Up to €500|
|€500.01 to €1 875|
|€1 875.01 to €3 750|
|€3 750.01 to €7 500|
|€7 500.01 to €15 000|
|€15 000.01 to €25 000|
|€25 000.01 to €40 000|
|€40 000.01 to €70 000|
|€70 000.01 to €100 000|
|€100 000.01 to €135 000|
|€135 000.01 to €170 000|
|€170 000.01 to €210 000|
|€ 210 000.01 to €250 000|
Above €250 000, the fees indicated increase by 2.5 units of account for each €25 000 or fraction.
A unit of account in the period 2004‑06 was worth €89.
Under Article 32 of the Code on Legal Costs, the costs include the following charges:
When assessing the criteria for ordering a protective measure, the court must always examine whether the fear invoked is founded and how serious and how difficult it will be to repair the potential infringement of the right at issue. It will also assess whether the precautionary or interim measure is appropriate in the specific case at issue with a view to safeguarding the right alleged to be at risk. It must establish that there is a risk associated with any delay.
It will also examine whether the proceedings are actually or potentially dependent on an action brought or to be brought that is based on the right safeguarded.
In this type of proceeding, it is for the court to obtain a summary (i.e. less rigorous than in the main proceedings) demonstration that there is a real likelihood that the right to be safeguarded exists and that the fear of its being infringed is sufficiently justified.
For the other conditions to be met in relation to specific protective measures, please see the reply to question 1.
Under Article 387(2) of the Code of Civil Procedure, protective measures may be refused by the court if the resulting damage to the defendant would be significantly greater than the loss which the claimant wishes to avoid.
The right which is to be safeguarded by the protective measure may already exist or may arise from the decision pending.
All protective measures are regarded as urgent. Article 382 of the Code of Civil Procedure stipulates that they are "always urgent and have priority over any other non-urgent judicial act" and that "actions brought before the relevant court must be decided at first instance within two months at most or, if the defendant does not have to be summoned, within 15 days".
Yes, for the precautionary measures of seizure and impounding of goods.
Since they are ordered by the courts, protective measures "are binding on all public and private entities and take precedence over measures adopted by any other authority" pursuant to Article 205(2) of the Portuguese Constitution.
In seizure and impounding of goods procedures, if the debtor is made trustee of the goods and disposes of them, this constitutes a public order offence. The legal transaction to this effect will be null and void if the aim to circumvent the measure ordered is shared by the parties to the transaction, pursuant to Article 281 of the Portuguese Civil Code.
In other situations, although the act is valid, it is ineffective as far as the claimant for seizure is concerned (Article 622(1) of the Civil Code).
Yes. There are criminal penalties with civil consequences, namely seizure of assets of an equivalent value to those entrusted to him and which he has not presented, together with costs and expenses and compensation.
In seizure proceedings, banks must "communicate to the enforcement solicitor the amount of existing balances or the fact that there is no account or balance" within 15 days. They must then inform the defendant of the seizure. The bank "shall be responsible for bank balances it holds on the date of notification and shall provide the court with a statement showing all transactions affecting deposits after implementation" of the seizure (Article 861A(7) and (9), applicable by virtue of Article 406(2) of the Code of Civil Procedure).
Failure to provide the information referred to above can give rise to a fine. The bank may also be civilly liable and required to pay compensation.
Protective measures are limited in time pursuant to the specific legal provisions governing them.
The measures are valid until the decision in the related main proceedings can take effect. For example, in provisional maintenance and provisional compensation proceedings, it is the point at which the first payment is made, while in seizure proceedings, it is the point at which seizure is effected.
If the defendant has not been heard before the protective measure is ordered, he is merely notified of the decision ordering it. If he wishes to contest it in order to "submit facts or evidence not taken into account by the court and which may remove the basis for the protective measure or cause it to be reduced" (Article 388(1)(b) of the Code of Civil Procedure), he must do so within ten days of being notified.
After this deadline, if necessary, the "evidence required or determined by the court" is produced pursuant to Article 386(1) of the Code of Civil Procedure.
Appeals can be brought against measures in proceedings worth more than €3 740.98, provided that the contested decision is disadvantageous to the party bringing the appeal by more than half of this amount and, irrespective of the value, provided that the appeal "is based on the infringement of conflict‑of‑laws rules by virtue of the subject‑matter or the hierarchy or the offence in the case". "Appeals may also always be brought against decisions … ordering protective measures on the grounds that the value exceeds the jurisdiction of the court which took the contested decision" (Article 678 of the Code of Civil Procedure).
Appeals may not be brought before the Supreme Court against decisions ordering protective measures, without prejudice to cases in which an appeal is always admissible.
Any party to the proceedings who loses the case and anyone who is not a party to the proceedings but suffers a direct and real loss as a result of the protective measure.
The court with jurisdiction to hear the appeal is a second‑instance court in the judicial district in which the court which handed down the contested decision is located.
The time limit for lodging appeals is 10 days from the date of notification of the decision.
An appeal brought against an order which rejects outright the initial application for a protective measure or which does not order it suspends the effect of the decision against which the appeal is brought.
An appeal against a decision ordering the protective measure does not have suspensive effect.Top
Last update: 26-01-2007