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Conditions for recognition and enforcement
Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?
In principle, judgments from foreign judicial bodies resolving private law disputes cannot be enforced in Portugal without being revisited and confirmed, unless they are pursuant to treaties, conventions or the relevant EU regulations.
Each treaty or convention describes the conditions for a judgment to be enforceable on the parties to the treaty.
The recast EU Brussels Regulation (1215/2012) applies to civil and commercial matters, regardless of the nature of the court or tribunal – except in relation to:
- revenue, customs or administrative matters;
- the status or legal capacity of natural persons;
- rights in property arising out of:
o a matrimonial relationship;
o wills; or
- proceedings relating to the winding up of insolvent companies or other legal persons;
- judicial arrangements, compositions and analogous proceedings;
- social security; and
How are foreign judgments subject to appeal treated?
EU judgments subject to appeal are recognised and enforced only if they are enforceable under the law of the member state of origin. The court or authority before which a judgment issued in another member state is invoked may suspend the proceedings only if the judgment is challenged in the member state of origin.
Non-EU judgments will be recognised in Portugal only if they are no longer appealable.
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
An EU member state judgment will be recognised if the party that wishes to invoke it produces:
- a copy of the judgment, which satisfies the conditions necessary to establish its authenticity; and
- a certificate using the form set out in Annex I of the recast EU Brussels Regulation.
The party will be asked to provide a certified translation of the certificate and possibly of the judgment.
If the judgment is enforceable in the original EU member state, it will be enforceable in Portugal without the need for any declaration of enforceability.
An enforceable judgment carries with it, by operation of law, the power to proceed to any protective measures which exist under the law of the EU member state addressed.
Non-EU judgments are subject to different rules. The party that wishes to invoke a non-EU member state judgment must produce a copy of the judgment, which satisfies the conditions necessary to establish its authenticity. In addition, the following requirements must be met:
- There is no doubt concerning the authenticity of the copy of the judgment.
- The decision is no longer appealable in the non-EU member state of origin.
- There is no lack of competence of the foreign court or, if the decision addresses Portuguese courts, no exclusive competence matters.
- There is no lis pendens or res judicata exception.
- There has been no violation of the due process of law (eg, the right of defence, the right to be heard or the right to contradict).
What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?
An EU member state judgment that is enforceable in the member state of origin will be recognised and enforced in any other member state, with no requirements imposed. A judgment issued in an EU member state will not be reviewed as to its substance in Portugal, unless it affects Portuguese public policy.
Non-EU member state judgments may be reviewed with regard to their accordance to Portuguese public policy.
What is the limitation period for enforcement of a foreign judgment?
EU law provides no specific deadlines on this matter. Similarly, Portuguese domestic legislation does not establish a limitation period for the submission of an enforcement application.
However, a foreign judgment can be enforced in Portugal only if it is also enforceable under the law of the member state of origin. If the decision is no longer enforceable in accordance with the law of the country in which the judgment was issued, then it is no longer enforceable in Portugal either.
Grounds for refusal
On what grounds can recognition and enforcement be refused?
Recognition and enforcement of an EU judgment can be refused on the following grounds:
- Such recognition is manifestly contrary to Portuguese public policy.
- The judgment was issued in default of appearance, where the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable it to arrange for its defence – unless the defendant failed to commence appeal proceedings when it was possible to do so.
- The judgment is irreconcilable with a judgment issued between the same parties in Portugal.
- The judgment is irreconcilable with an earlier judgment issued in another EU member state or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in Portugal.
- The judgment conflicts with:
o jurisdiction matters relating to insurance, consumer contracts or individual employment contracts, where the defendant was:
- the insured or beneficiary;
- the injured party;
- a consumer; or
- an employee; and
o exclusive jurisdiction under the recast EU Brussels Regulation.
A non-EU member state judgment can be refused on the following grounds:
- There is doubt concerning the authenticity of the copy of the judgment.
- The decision is appealable in the non-EU member state of origin.
- There is a lack of competence of the foreign court or, if the decision addresses Portuguese courts, there are exclusive competence matters.
- The lis pendens or res judicata exception can be invoked.
- The due process of law was violated (eg, the right of defence, to be heard or to contradict).
- The decision is incompatible with Portuguese public policy.
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
To enforce a foreign judgment, Portuguese courts are required to review some aspects of the service of process in the original foreign proceeding, in order to guarantee that the due process of law was followed.
For example, the defendant must have been correctly summoned in order to ensure its right to an adversarial proceeding, which is a fundamental principle of Portuguese law, alongside the principle of equality of the parties before the court.
An EU member state judgment will be automatically recognised in Portugal because the aforementioned principles are also standards under EU law; therefore, all EU member states must respect them.
What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?
Under the Civil Code, a foreign law will not apply if it violates the fundamental principles of the international public policy of the Portuguese state. This means that a compatibility test must be performed to determine whether the recognition and enforcement of a foreign judgment is incompatible with the concept of justice in the forum country. This will happen, for example, when the decision was not issued by an independent court or when the result of its application contravenes the fundamental rights set out by the Constitution. However, assessment of the solution must be made on a case-by-case basis.
The fundamental rights, freedoms and principles set out in the EU Charter of Fundamental Rights 2000 (adapted in 2007) have the same legal value in an EU member state as the treaties to which it is a party. Therefore, those provisions are integrated with Portuguese public policy. EU courts have held that the principle of non-discrimination and the free movement of people and capital, as well as the freedom of establishment, cannot be dismissed.
There is no recent notable case law regarding this matter. However, some principles have been consistently appointed in this regard, including:
- the pacta sunt servanda principle;
- the good-faith principle;
- the proportionality principle;
- the prohibition of the abuse of rights;
- the non-discrimination principle; and
- measures to protect weaker parties.
What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?
The enforcing court’s powers to review the jurisdiction of a foreign judgment are strongly linked to the originating country.
According to Article 52 of the recast EU Brussels Regulation, under no circumstances may a judgment issued in an EU member state be reviewed as to its substance in the member state addressed. However, enforcement can be refused if the decision:
- is under exclusive jurisdiction according to the recast EU Brussels Regulation and the Lugano Convention; or
- was issued in breach of provisions regarding consumers, employees or insured persons, provided that those persons are the defendants.
Judgments from non-EU member states with which Portugal has no agreement will not be enforceable unless the court of appeal recognises their legitimacy. Nevertheless, in a recognition pleading, there will be no merit judgment, except to evaluate the decision’s compatibility with Portuguese public policy.
Concurrent proceedings and conflicting judgments
How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?
With regard to EU member states, the recast EU Brussels Regulation and the Lugano Convention establish that on the application of any interested party, the recognition of a judgment will be refused if the judgment is irreconcilable in the member state addressed or if it is irreconcilable with an earlier judgment given in another member state or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the member state addressed.
With regard to other states, judgments will not be recognised or enforced if the same matter is or was being discussed in Portuguese courts by the same parties before the foreign decision was issued.
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