answers concerning the cross-border collection of debts in Portugal
Advogados, Lissabon, Portugal
country recognize judgments rendered by foreign courts, and does it permit the
enforcement of such judgments?"
Our legal system foresees in its Civil
Procedure Code that no foreign judgment can obtain its effectiveness without
beeing before reviewed and recognized by a Portuguese Court.
This proceeding ends normally
permitting the enforcement of the foreign decision. One of the inconvenients
of this proceeding is the debtors’ notification of the decision which makes
him aware that one of his debtors is trying to collect the debt, and because
of the time needed by the Portuguese courts to take decisions, this
notification permitts him to alienate his assets.
Another possibility is to try the
enforcement through the proceeding foreseen at the Brusseler Convention from
27 September 1968 concerning the enforcement of decisions in civil and
commercial matters. In this case it is necessary to lodge a request to obtain
the enforcement from this decision, the so called "exequatur", by the relevant
Court of First Instance. With the "exequatur", it is then possible to
introduce the enforcement with the debtor beeing not notified of this
2. "How does the
creditor in portugal have to pursue the exequatur proceedings? Which documents
does the creditor have to submit?"
Our Civil Procedure Code foresees two
The first one is a declarative action. Through this action the creditor aims
to obtain from the court a decision ensuring that the debtor owns him a
certain amount of money. The creditor has to proove himself, using for example
invoices, that he has sold the goods to the debtor. The debtor is afterwards
notified of this decision, and it is possible for him to appeal under certain
circumstances. If the debtor does not appeal, it is possible to request
immediately the enforcement of this decision.
The second proceeding is the
enforcement itself. Our legal system recognizes four types of documents which
can be used as enforcement documents, namely the decision from the previous
proceeding, public documents, which must be seeled by a notary, private
documents which consist in a monetary obligation signed by the debtor and
other documents which are recognized by law as documents allowing the
Foreign documents can be enforced if
they have the Apostille of the Hague Convention.
3. "How high are
court costs and attorney’s fees for principal proceedings and enforcement
proceedings in your country."
As far as attorney’s fees are
concerned the Portugueses Bar does not allow neither the rule "no cuore no pay"
nor the "quote litis" system. For principal proceedings it depends on the
necessity to bring the case to Court or not. In respect to the court’ fees and
without taking into consideration any incident in the proceeding, it depends
just from the amount envolved.
Regarding the enforcement proceeding
and in respect with attorney’s fees, it also depends on the complexity of the
4. "Who is charged
with the attorney’s fees and court costs in principal proceedings? Is the
party that loses oblieged to pay the costs?"
The plaintiff is always obliged to pay
the initial court costs. If the defendant is condemned in the proceeding he
will be charged with the final costs and the plaintiff is reimbursed of the
initial costs paid. If there is no winner both will be charged in the
proportion. The loosing party can see his assets enforced if the costs are not
5. "Who is charged
with the enforcement costs?"
It is more or less the same as the a.m.
procedure concerning the principal one.
6. "How long do the
principal proceedings take?"
This kind of proceedings take from six
months to one year to be decided.
7. "Is there any
possibility for summary proceedings to collect debts?"
There is since 1998 a summary
proceeding to collect debts, the so called "Injuncao" (Injunction). This
proceeding starts with a request to the Court’s Registrar requiring the debtor
to pay. In the majority of cases the creditor has to submit documents, such as
invoices. If the debtor does not contest this request, the Court’s Secretary
himself allows the immediat enforcement. That takes about two to three months.
On the contrary, in the case the debtor does contest the request it must be
submitted for the apreciation of the judge and it can take about one year to
be judged. The amount that can be involved, shall be always equal or below PTE
750.000,- (= EUROS 3.740,90).
8. "How long do
recognition/exequatur proceedings take?"
It depends always from the relevant
Court. If the recognition/exequatur has to be lodges in Lisbon it will take
certainly more time then in other Courts of the country. In general it takes
about one year, perhaps a few months less. If the Brusseler Convention cannot
be applied to the case and the request must be lodged au the Court of Appeal
the prodeeding can take about one year.
9. "Which kind of
enforcement methods exist? Which kind of enforcement procedure should be given
The enforcement can be requested to
achieve one of three results: the payement of certain pecunary obligation, the
delievery of a certain asset, or the rendering of a certain fact. In respect
to the methods there are no more as the described above. We can use the
proceeding as foreseen in the Civil Procedure Code, or the so called
injunction, but, this last one only for debts under the amount of PTE
750.000,- (=EUROS 3.740,90).
It is always possible to lodge one
request with just one invoice, which means if the debt has the amount of PTE
7.500.000,- (=EUROS 37.409,-) we can introduce 10 requests for injunction.
10."How long do the
enforcement proceedings take?"
The enforcement proceedings can also
take some time. In Portugal there is a problem regarding the registration of
firms. As a matter of fact, although they are obliged to have a registered
office firms do not have normally their situation up to dated, which means
that they may have a certain registered office and not performing any activity
there. In this case it does occur the dificulty to notify the firm’s legal
representative. But there are other methods, such as the notification of the
firms legal representative at his private home. Also the assets seizured must
be done by a court’s representative, that can also take several months.
Afterwards assets shall be sold in a public auction. In reference to the
attachment of bank accounts we still have a very stricted secrecy refering to
banks although it is always possible to request to the Court through the Bank
of Portugal the attachment of all bank acounts of the debtor in all banks.
11. „What can the
creditor do if enforcement remains fruitless?“
If the debtor is a company it can try
to attach the assets of the firm’s legal representative, but this method can
also remain fruitless. If the debtor is a private person he can try for
example to attach a part of it’s salary, but in general there is nothing
special he can do.
12. "What is to do
in case of the debtor’s bankrupty?"
In case of the debor’s bankrupty the
creditor shall claim his credits. There are two distinct proceedings
Through the first one the creditors
try to arrange through court the recovery of the undertaking. Normally this is
the first step to be taken. If the recovery is the measure to be taken, all
enforcements stop at once. It is geven to the company a certain period of time
to try to recover ist finantial situation. Normally creditors agree on a plan
of payment of the debt in installments, with the forgiveness of the interests
and part of the principal debt. If during this period of time the company so
not pay according to this plan, creditors can claim the company’s bancrupty.
The other proceeding is to go
immediately for claiming bancrupty if the requirements are there.
Rua Castilho, 1 5º Esq.
1250-066 Lisboa, Portugal