🇵🇹 Portugal

1. The status of digitalisation in enforcement of the judgments under the regulation in

question (a) under EOP Regulation, and (b) under EEO Regulation

Under both EOP and EEO Regulation

Portugal has a high level of IT in both the Courts and its environment. In fact, in January 2009 Portugal achieved the goal of full proceedings dematerialisation. There is a web portal, www.citius.mj.pt, serving the complete jurisdictional cluster. CITIUS is, at the same time, the brand and the set of special applications that allow proceedings to be completely dematerialised from January 2009. As of 2007, 74% of the cases are dematerialised and all the acts of the courts are performed electronically. The dematerialisation rule applies also the pending cases insofar as new acts are concerned. There is a reduction in fees for all the cases when electronic means are used by the parties. The service of documents between justice professionals is also dematerialised. The service of documents to the parties not represented by lawyer or solicitor remains with the traditional methods, usually registered mail. Electronic communication between de parties is now mandatory and the same applies to the communication between the parties and the court and within the court itself. Despite the above, there are limitations and a long way to go in the electronic processing of the EOP and EEO, as there is no specific telematic platform for these procedures. There is no specific electronic procedure and many issues related to the effectiveness of cross-border enforcement still exist. On the other hand, the electronic forms for EOP and EEO are not available to lawyers and solicitors via CITIUS.

Procedural aspects

2. Competent court or authority and procedure involved in the enforcement (a) under EOP

Regulation, and (b) under EEO Regulation

a) Under EOP Regulation

The enforcement of the national order domestically follows the general rules for enforcement. If there is no objection the court, on its own motion, issues the certification of enforceability and he EOP will be enforced under the same conditions as national enforceable titles. The only possible way to oppose the enforcement is by arguing the extinction of the obligation by fact occurred after the issuing of the declaration of enforceability. The competent court for the enforcement of EOPs is the court of First instance located in the area of residence or registered office of the debtor. According to the CPC, the jurisdiction for enforcement is primarily determined by the domicile of the debtor. Once the enforcement clause has been attached, the registrar makes the order available to the applicant, preferably by electronic means (Article 14(5) of the Rules for Proceedings annexed to Decree-Law No 269/98 of 1 September 1998). Once the enforcement has been notified to the debtor, it will commence according to the enforcement procedures provided by national law. For claims exceeding €5,000, legal representation by a lawyer is mandatory once the enforcement procedure has started. This applies to cases where the amount exceeds this threshold, particularly when the case involves more complexity (e.g., opposition from the debtor, need for more formal enforcement measures like property seizure). The documents to be submitted for the enforcement claim in Portugal are derived from art. 21.1 EOP Regulation and they include: 1) Copies of the enforceable EOP 2) translation to Portuguese and 3) any other document the executor deems necessary for the claim execution.

(b) Under EEO Regulation

Judgments from EU member states falling within the scope of the aforementioned Regulation have the effect provided therein. In particular, EEO certificates are automatically recognised and enforceable in Portugal, without the need for a special procedure or declaration of enforceability. The court designated to execute these certificates shall be the court situated in the domicile of the debtor or executed party, where the certificate translated into Portuguese must be submitted along with a copy of the original resolution. The enforcement procedure follows internal procedural rules. Both courts and enforcement agents are responsible for judicial enforcement proceedings. However, Portuguese law also provides for an optional pre- enforcement extrajudicial procedure (PEPEX procedure), conducted by enforcement agents, to which the creditor may resort to when certain requirements are fulfilled. The PEPEX procedure is provided for by Law No 32/2014 of 30 May 2014. To enforce a EEO certificate, the creditor must file the enforcement application accompanied by the documents aforementioned. The procedure can be summarised as follows: - Submission of the application. - The enforcement agent will be responsible for most enforcement tasks not assigned to a judge, such as: summons, notifications, publication, database consultation, seizures and records of seizures, settlements and payments. - The choice of enforcement measures will depend on the purpose of enforcement (payment of a sum of money, delivery of a certain object, or performance of an act). In general, measures such as seizure, sale, payment, delivery of an object, and performance of the act by another person at expense of the debtor are available. - In most cases (depending on the type of title) the enforcement measures will be taken before service to the debtor. - The debtor may challenge the enforcement request by raising objections to enforcement within 20 days from the date of the summons. This option is fully applicable within EEO enforcement procedures. - Once seizures are executed, the debtor may object on the grounds described in 2.5 Challenging Enforcement of Domestic Judgments.

3. rules on service

Regarding the notification regime applicable to an EOP, if the requirement is accepted the court will serve the order for payment to the defendant by recorded mail. The rules applicable to the service are as follow: - If the defendant refuses to accept the service by recorded mail, the messenger shall write notice of the incident and the service is considered performed. - If the defendant is not found, the court will try to find, ex officio, information about the whereabouts of the defendant. It will use the National register databases as well as the Tax Authority database. If the same address is in all the databases, the notification will be sent by regular mail. - The claimant may request that the service be made by an agent of execution.

4. Language of the certificate and documents to be appended

Under both EOP and EEO Regulation

In Portugal, the official language for proceedings under the EOP Regulation and the EEO Regulation is Portuguese. Consequently, all certificates issued under these regulations, including standard forms and annexes like Annex I (EOP) and Annex I (EEO), as well as other supporting documents, must be provided in Portuguese. To enforce EOP and EEO certificates from other Member States in Portugal, an official translation into Portuguese is required, as stated in Article 21 of the EOP Regulation. A translation of the original judicial decision that underpins the EEO certificate is not needed, as the certificate contains adequate information to identify the essential elements necessary for enforcement. The party responsible for submitting the documents must bear the translation costs.

5. enforcement fees

Court fees must be paid by each of the parties involved for the respective legal proceedings to be launched. Court costs are calculated in accordance with the value or complexity of the claim, under the terms of the Regulations on Court Costs (Regulamento das Custas Processuais) and of the tables appended to those Regulations. On the other hand, Case-related expenses are those incurred as a result of the court proceedings (such as payments to experts, interpreting services, etc.) when requested by the parties or ordered by the judge - see Article 16 of the Regulations on Court Costs. Thirdly, costs of the parties are the amounts spent by each of the parties in dealing with the court case, a sum which they are repaid if the opposing party loses the case, under the terms of Article 26 of the Regulations on Court Costs (e.g. expenses with fees paid to an attorney; expenses with court- appointed enforcement agents, etc.). Regarding the enforcement procedures linked to an EOP and EEO, the same criteria and norms established in domestic law apply. The court fees have to be paid both for the application of EOP, as well as for the enforcement of the order and the enforcement of enforceable titles under the EEO regulation. Commencement of enforcement proceedings is subject to the payment of court fees varying between 204€ to 612€. If the debtor objects to the enforcement proceedings or to the seizure, court fees will also be due, ranging between 306€ and 612€. In enforcement proceedings the costs borne with the enforcement agent must also be taken into consideration. The latter is remunerated on the basis of a fixed fee, acts performed and debt amount recovered. Fixed fees are low, but fees based on the amount of debt recovered are calculated on a percentage basis, ranging from 4% to 10%.

6. Refusal, stay, or limitation of the enforcement procedure under the regulation in question in

the intended Member State (a) under EOP Regulation, and (b) under EEO Regulation

a) Under the EOP Regulation Article 22 of Regulation (EC) No 1896/2006 (EOP Regulation) allows the court in the Member State of enforcement to refuse enforcement under certain circumstances. If the debtor contests the enforcement, the national enforcement procedures as specified in Articles 702 et seq. of the Code of Civil Procedure (CCP) will apply. According to Article 22 of the EOP Regulation, enforcement may be denied if it is evidently contrary to the public policy of the Member State. Portuguese domestic legislation also recognizes additional grounds for opposition, as detailed in Article 729 of the CCP, which include: a) Non-existence or unenforceability of the title; b) Inaccuracy of the process, transfer, or any discrepancy that affects the terms of enforcement; c) Absence of any procedural prerequisites that determine the regularity of the enforcement instance, subject to rectification; d) Lack of the defendant's involvement in the declaratory process; e) Ambiguity, unenforceability, or lack of liquidity of the obligation to be enforced, which was not addressed during the initial enforcement phase; f) Prior res judicata affecting the judgment being enforced; g) Any fact that extinguishes or modifies the obligation, which arises after the conclusion of discussions in the declaratory process and is substantiated by documentation; the prescription of the right or obligation can be evidenced by any means; h) Counterclaims against the enforcer aimed at setting off credits; i) In cases involving homologatory judgments of confession or settlement, any grounds for nullity or annulability of those actions. The interested party may submit an opposition to the competent court as outlined in Article 729 of the CCP. Based on the circumstances, the judge has the authority to temporarily suspend or restrict the enforcement if justified grounds are shown. A suspension halts all enforcement actions, including precautionary measures. If the opposition is validated, the judge will dismiss the enforcement, making it ineffective, and may order the applicant to pay the associated costs.

(b) Under the EEO Regulation

The same courts that oversee enforcement proceedings based on EEO certificates are also responsible for ruling on any refusals, stays, or limitations of the enforcement process in Portugal. The grounds for requesting a refusal of enforcement are outlined in Articles 21 and 23 of the Regulation. These grounds include the irreconcilability of the decision with another ruling concerning the same subject matter and parties, a principle of res judicata also recognized under Portuguese Law (art 581.3 CCP). Similar to the EOP procedure, enforcement may be denied if the decision is starkly inconsistent with Portuguese public order, particularly in cases where fundamental rights are infringed, or if there are discrepancies in the EEO certificate as specified in the Regulation. If the opposition is deemed valid, the procedure will cease, the judge will reject the enforcement, and the applicant may be ordered to bear the costs. The suspension or limitation of enforcement is governed by the criteria and rules established in Article 23 of the Regulation, which the debtor may invoke directly in court. Consequently, upon the debtor's request, the judge can limit the enforcement process to precautionary measures, mandate a guarantee as determined by the judge, or suspend the enforcement procedure if exceptional circumstances warrant it. Most of the implications of these incidents involve halting the enforcement procedure until its resolution.

7. Availability of any legal aid for guidance on the enforcement procedures under the

regulation in question in the intended Member State (a) under EOP Regulation, and (b) under EEO Regulation

Access to the law and to the Courts is provided for in Portugal under Law No 34/2004 of 29 July

2004. Under the terms of Article 6 of Law No 34/2004, legal protection is available including legal

advice and legal aid. Under the terms of Articles 14 and 15 of Law No 34/2004, legal advice consists of technical clarification on the law applicable to specific issues or cases and may be provided by lawyers. Regarding enforcement procedures under EEO and EOP regulation, even if legal representation is not mandatory in the terms mentioned above (ref. p. 1, 2), the costs of the process will be covered by free legal aid. Legal aid exists in the following forms:

• Exemption from court fees and other case-related expenses;
• the appointment of legal counsel (such as lawyers and solicitors) and payment of their fees

and other expenses (such as travel costs);

• payment of the fees of court-appointed legal counsel (such as a lawyer in criminal

proceedings);

• payment of court fees and other case-related expenses in instalments;
• appointment of legal counsel and payment of the relevant fees and expenses in instalments;
• payment of the fees and expenses due to court-appointed legal counsel in instalments;
• the attribution of a court-appointed enforcement agent and payment of the corresponding fee

(such as for the serving of a summons, for the measures needed to carry out the seizure of assets, and other enforcement procedures).

8. Critical assessment of the enforcement procedures under the regulation in question in the

intended Member State (a) under EOP Regulation, and (b) under EEO Regulation

In general terms, the European payment order is applied in Portugal following the standards established in the EPO Regulation and its implementation has been demonstrated to yield positive and beneficial outcomes. However, certain areas for improvement can be identified: 1) Greater adaptation of national rules to a simplified and harmonised European procedure would be advisable, because in most matters internal law applies in accordance with the national payment order procedure, and processing times remain very long. 2) It is essential to pursue further advancement in the digitalization of these processes, as the utilization of internal digital platforms within the administration of Justice is limited for cross-border procedures. 3) Regarding competent authorities, Portugal has chosen a centralized system. To issue an EOP, the competent court is the County Court of Oporto, a fact that offers limited options. This is why we believe that Portugal has not met the requirements outlined in the Regulation's Recital 12: "When deciding which courts are to have jurisdiction to issue a European order for payment, Member States should take due account of the need to ensure access to justice". (b) under EEO Regulation). The EEO has represented a substantial improvement in enhancing the cross-border effectiveness of resolutions and the responsiveness of judicial executive processes. The regulation's framework, based on the principles of effect extension and mutual trust, has garnered positive reviews. In Portugal, the enforcement of the regulation complies with the criteria and conditions set by European standards, allowing creditors with an undisputed title to more readily fulfil their claims. All enforceable titles eligible for immediate enforcement with an EEO certificate are accounted for as enforceable titles within Portuguese procedural legislation, thereby indicating the absence of difficulties in this regard. Nonetheless, there are still several areas that could be improved. We need to progress in our efforts to fully digitize the entire process through an accessible digital platform, equipped with instant translation tools, available to all citizens in Portugal. It is essential to realize the complete telematic efficiency of this enforcement procedure.