All questions

Litigation

i Forum

In respect of civil proceedings, product liability claims may either be decided by a judge or a panel of judges:

  1. in a judicial court;
  2. by an arbitrator or an arbitral court; or
  3. by justices of the peace (if the value of the claim does not exceed €15,000).

There are no jury trials in civil proceedings under Portuguese law.

With respect to criminal proceedings, any potential criminal liability will be determined by a judge or a panel of judges in criminal courts following an indictment by the public prosecutor, a charge by the injured party, or both. Although there may be jury trials in specific criminal proceedings (depending on the type of crime) under Portuguese law, they are very rarely used and, most likely, would not have jurisdiction over product liability cases.

The organisation of the Portuguese judicial system, which is unitary and uniform throughout the territory, is regulated by Law No. 63/2013 of 26 August. Judicial courts are divided into courts of first instance (at least one per judicial district), courts of appeal (five throughout the country) and the Supreme Court of Justice. Although the Portuguese judicial system has three levels of ordinary courts, in civil matters the decisions of the courts of first instance could potentially only be subject to appeal in cases where the value of the claim exceeds €5,000 and decisions of the courts of appeal could potentially only reach the Supreme Court (in which case the scope of review would be limited to the control of the application of the law) in cases where the value of the claim exceeds €30,000. In criminal matters, although there are no general limitations to appeals of court decisions, there may be specific limitations depending on the type of crime and the penalty incurred.

As mentioned above, civil liability in product liability cases may also be heard by an arbitrator or an arbitral court under the Portuguese Voluntary Arbitration Law (Law No. 63/2011 of 14 December), provided that both the claimant and the defendant agree to settle their dispute in this way. There are also consumer arbitration centres created under Decree-Law No. 425/86 of 27 December and Law No. 144/2015 of 8 September, although for some centres their jurisdiction is limited to cases where the value of the claim does not exceed €5,000.

Finally, certain product liability-related administrative offences may give rise to fines to be applied by the competent administrative authorities following administrative proceedings. These fines may be appealed against in an administrative court.

ii Burden of proofAdministrative and criminal liability and general remarks on civil liability

In administrative and criminal proceedings, the burden of proof lies with the entity prosecuting the case, who must prove the facts that uphold its allegation.

In civil proceedings, as a general rule under Portuguese law, the burden of proof also lies with the party that makes the allegation and wishes to rely on the facts invoked in the claim. Although the obligation to indemnify (set out in Articles 562 et seq. of the Portuguese Civil Code) has a sole framework applicable both to contractual claims (whose general regime is set out in articles 798 et seq. of the Portuguese Civil Code) and tort claims (set out in Articles 483 et seq. of the Portuguese Civil Code), whereas in tort claims the damaged party must prove the fault of the alleged offender, this fault is presumed in contractual claims as per Article 799 of the Portuguese Civil Code. Apart from this, in both tort and contractual liability claims the damaged party must prove:

  1. a voluntary action or omission of the offender (corresponding to a breach of a general obligation in tort claims or of a contract in contractual claims);
  2. the unlawfulness of such action or omission;
  3. a damage; and
  4. the causal link between the damage and the action or omission, which is assessed according to the adequate causation theory in light of Article 563 of the Portuguese Civil Code, which states that '[t]he obligation to indemnify shall only exist in respect of those damages that the damaged party would probably not have suffered should the injury not have taken place.'
Product Liability Law

Under the Product Liability Law, given the strict nature of the manufacturer's liability, the damaged party shall only bear the burden to prove the damage, the defect in the product and that the defect was the relevant (adequate) cause of the damage.

Sale of Consumer Goods Law

Under the Sale of Consumer Goods Law, even though the seller's or the manufacturer's liability (or both) is not strict, its fault in the non-conformity of the goods sold under the terms of the relevant contract is presumed if the goods:

  1. do not comply with the description given by the seller or do not possess the qualities of the goods that the seller has provided to the consumer as a sample or model;
  2. are not fit for the specific use that the consumer applies to them, provided that the consumer made the seller aware of such use and the latter accepted it;
  3. are not fit for the use for which goods of the same type are normally used; or
  4. do not have the standard qualities and performance of goods of the same type and that a consumer could reasonably expect, based on the nature of the goods and, if applicable, to their public presentation (in particular, advertising or labelling).

In light of the above and assuming that fault is presumed, the consumer only bears the burden to prove the non-conformity of the goods with the contract and the causation between such non-conformity and the damage caused to it (this being the impossibility of using the goods as expected).

iii DefencesProduct Liability Law

Article 5 of the Product Liability Law provides for several defences available to the manufacturer. In particular, it shall not be held liable if it proves one (or more) of the following:

  1. that it did not put the defective product into circulation;
  2. that, having regard to the circumstances, it is probable that the product was not defective at the time it was put into circulation;
  3. that the product was neither manufactured by it for sale or any form of distribution for economic purpose nor manufactured or distributed by it in the course of its business;
  4. that the defect is due to compliance of the product with mandatory regulations issued by the public authorities;
  5. that the state of scientific and technical knowledge at the time when it put the product into circulation was not such as to enable the existence of the defect to be discovered; and
  6. that, in the case of a component of a product, the defect is attributable to the design of the product in which the component has been fitted or to the instructions given by the manufacturer of the product.

Another defence available to the manufacturer is provided by Article 7(1) of the Product Liability Law, according to which the liability of the manufacturer may be reduced or disallowed when, having regard to all the circumstances, the damage is caused both by a defect in the product and by the fault of the damaged party. However, no such defence shall apply and hence, the manufacturer's liability shall remain in full effect, if:

  1. although, having contributed to the damaged caused by the defective product, the damaged party did not act with intent, recklessly or with serious negligence; or
  2. the fault that contributed to the damage was of a third party.

Should there be such a contributory fault by the damaged party, the court (or other authority hearing the case) may, taking into consideration the circumstances of the case, either:

  1. determine the full indemnification of the damages (if contribution or fault of the damaged party was not relevant when compared to the defect of the product); or
  2. reduce or even disallow the payment of an indemnity (if, on the contrary, the defect of the product played a very minor role in the damage when compared to the contribution of the damaged party).

There are also certain situations that are not mentioned in the Product Liability Law but that could constitute defences available to the manufacturer. In particular, when a person has assumed the risk of using a defective product despite having been made aware of its defectiveness, the manufacturer should not be held liable for the damages caused by the product. In addition, it is currently understood that the force majeure defence is available to a manufacturer of defective products and that his or her liability may be reduced or even excluded as a consequence of this.

On a separate note, Article 11 of the Product Liability Law provides for a three-year limitation period for the right to claim damages, starting from the date on which the damaged party became aware, or should have become aware, of the damage, defect and identity of the manufacturer. In addition, according to Article 12 of the Product Liability Law, the rights of the damaged party to recover damages will lapse 10 years after the date the product was put into circulation, unless he or she has submitted a claim to court (or to another authority competent to hear the case) within this period.

Sale of Consumer Goods Law

Pursuant to Article 6 of the Sale of Consumer Goods Law, if the consumer directly demands that the manufacturer of a defective product repairs or replaces it, and provided that such demand is not impossible or disproportionate taking into account the value the product would have if there were no lack of conformity; the significance of the lack of conformity; and whether the alternative remedy could be completed without significant inconvenience to the consumer, the manufacturer may oppose the consumer's claim based on any of the following grounds:

  1. that the defect results solely from the seller's statements about the product and its use;
  2. that the product was not put into circulation by it;
  3. that, under the circumstances, it can be assumed that the product was not defective at the moment it was put into circulation;
  4. that the product was neither manufactured by it for sale or any form of distribution with the purpose of earning profit, nor manufactured or distributed by it in the course of its business; and
  5. more than 10 years have lapsed since the product was put into circulation.
iv Personal jurisdiction

Under Article 7 of Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012, applicable in Portugal as a Member State of the European Union, a manufacturer domiciled in the European Union may be sued in Portugal:

  1. in matters relating to a contract – if Portugal is the place of performance of the obligation in question (e.g., if the sale was made in Portugal or if the product was delivered or should have been delivered in Portugal, regardless of the fact that the product is, or is not, advertised in Portugal); and
  2. in matters relating to tort, delict or quasi-delict – if Portugal is the place where the harmful event occurred or may occur. In claims of this nature, it is arguable whether the harmful event would be the actual occurrence of the damage caused by a defective product (in which case the place where the product was manufactured, sold or advertised would play no role at all and the Portuguese courts would have jurisdiction to hear any claim where the damages occurred in Portugal) or if such harmful event would be the putting into circulation of the defective product (in which case, for the Portuguese courts to have jurisdiction over such claims the product would have to be either manufactured, sold or advertised in Portugal, or, at least, to a Portuguese audience).

If the manufacturer is not domiciled in a European Union Member State, pursuant to Article 62 of the Portuguese Civil Proceedings Code, the Portuguese courts would have jurisdiction to hear claims where:

  1. the element (or part thereof) that constitutes the cause of action to a claim was carried out in Portugal;
  2. the right invoked by the damaged party may not be effective unless the claim is brought to the Portuguese courts; or
  3. there are considerable difficulties for the damaged party to make a claim to a foreign court.
v Expert witnesses

There is no obstacle to the intervention of expert witnesses in Portugal. In fact, both the parties and the court or arbitrators may retain industry experts, or experts of another nature, to testify as part of their defence (in the former case) or to perform an independent expert analysis that would help the court or arbitrator to reach its decision (in the latter case).

The testimony, reports or evidence produced by experts are freely considered by the court or arbitrator and should not bind the latter.

vi Discovery

The common-law style of discovery is not available in Portugal, as there is no general disclosure procedure in the Portuguese legal system. However, pursuant to the inquisitorial principle and the principles of cooperation and good faith between all the parties intervening in the proceedings that, among other things, regulate Portuguese civil proceedings, whenever one of the parties justifiably claims a serious difficulty in obtaining a document, the court shall attempt to achieve the removal of that obstacle. For instance, the parties shall respond to or provide, as applicable, whatever is asked from them with relevance to the case and submit themselves to the necessary inspections ordered by the court. In addition, the parties are entitled to appoint as witness any person they wish, who is obliged to appear before the court or otherwise be subject to the payment of a fine. Parties can also request the deposition of the counterparty regarding unfavourable facts, for the purpose of obtaining a confession.

vii Apportionment

As a general rule under Portuguese law, if damages are caused by multiple parties, their liability is joint and several in tort claims and joint (but not several) in contractual claims.

When it comes to damage caused by defective products under the Product Liability Law, pursuant to Article 6 thereof, if several people are responsible for the damage they will be jointly and severally liable. When it comes to the internal relations between such people, the circumstances of the case shall be taken into consideration, in particular the risk created by each person, the degree of fault of each person and the respective contribution for the occurrence of the damage. If there is doubt regarding the role played by each person involved, their liability shall be divided equally between them.

In the case of a lack of conformity of a product with the contract of sale under the Sale of Consumer Goods Law, as an exception to the general rule referred to above, in addition to the joint and several liability of the seller and the manufacturer of a product, the representative of the manufacturer in the area where the consumer is domiciled is also jointly and severally liable towards the consumer (the same defences referred to in Section IV.iii, above, will be available to that representative). Also, pursuant to the Sale of Consumer Goods Law (Article 7), a seller before whom the consumer's rights referred to in Section III, above, have been exercised has a right of redress against the professional from whom the product was purchased for all damages caused by the exercise of the consumer's rights.

Where the final seller is liable to the consumer because of a lack of conformity resulting from an act or omission by the manufacturer, a previous seller in the same chain of contracts or any other intermediary, the final seller is entitled to pursue remedies against the person or persons liable in the contractual chain.

viii Mass tort actions

Pursuant to Article 52.3 of the Portuguese Constitution, Article 2.1 of Law No. 83/95, of 31 August and Article 31 of the Portuguese Civil Proceedings Code, any citizen or association defending specific general interests, such as consumer rights, may submit claims to protect those general interests (citizen's actions), including to request the corresponding indemnification on behalf of the damaged parties. In these citizen actions, the claimant represents, by its own initiative, all the remaining right-holders in question (who have not opted out after being given the chance to do so by the court) without the need for an express mandate or authorisation.

In addition to the citizen's action referred to above, pursuant to Article 36 of the Portuguese Civil Proceedings Code, it is possible for several claimants to consolidate their claims into a single proceeding, without any limitation as to the number of claimants, provided that they have the same cause of action (e.g., the same type of defective product caused damaged to several persons who bought it). However, the court may decide to separate the claims if it understands that a serious inconvenience would arise if the claims were to be heard jointly.

Some of the advantages resulting from both types of actions referred to above include:

  1. the reduction of legal costs to the interested parties;
  2. the reduction of the number of claims reaching the court system (this is particularly noticeable in citizen's actions, because the potentially large number of people covered by such actions) and;
  3. in relation to citizen's actions, the fact that they may benefit people who would have never made an individual claim and, hence, would otherwise not have benefited from the result of the claim.

The main disadvantages of these actions are their complexity and, possibly, the longer duration of the proceedings.

ix Damages

Only damages that have been caused by defects in products (and not the matter of causation) are covered by the Product Liability Law. The general provisions concerning the obligation to indemnify, causation and indemnifiable damages apply, in particular Article 563, as referred to in Section IV.ii, above. However, pursuant to Article 8 of the Product Liability Law, the recoverable damages in the case of product liability are limited to those related to death or personal injuries and to property other than the defective product, provided, in the latter case, that such damages exceed €500. In addition, recoverable damages are limited to those caused to property of a type ordinarily intended for private use or consumption and that has mainly been used in such way by the damaged party.

In specific cases, the 'private use' criterion may be of limited use, especially in respect to items of property normally used for both private and professional purposes. In any event, the damaged party will bear the burden of proving the prevalent private use of such items of property.

There is no maximum amount of damages that may be recoverable.