Enforcement in civil and commercial matters consists in a legal action brought by a creditor or party seeking enforcement against a debtor or person against whom enforcement is sought in which the creditor requests the court to enforce compliance with an obligation due to him or her.
The enforcement can have three aims: payment of a sum of money; delivery of a specific object; or performance or non-performance of an act.
Enforcement may take the form of standard legal proceedings (which can be ordinary, summary or singular) or special proceedings.
All enforcement proceedings for the payment of a sum of money take the form of ordinary standard legal proceedings with the exception of those set out below, which take the form of summary proceedings, and enforcement proceedings relating to maintenance, which take the form of special proceedings.
Summary proceedings are used in enforcement proceedings for the payment of a sum of money based on the following:
Even when one of the above enforcement orders is involved, the ordinary form is applicable rather than the summary form in the following cases:
Enforcement proceedings relating to the delivery of a specific object and for the performance of an act take the form of single standard proceeding.
Enforcement for the delivery of a specific object may be converted into enforcement for payment of a sum of money when the object that the party seeking enforcement should receive cannot be found. In that case, the party seeking enforcement may, in the same proceedings, require payment of the value of the object that should have delivered and the loss resulting from non-delivery.
Enforcement for the performance of an act may be converted into enforcement for payment of a sum of money if the party seeking enforcement seeks compensation for damage suffered and payment of the amount in question.
Enforcement in relation to maintenance follows a form of special proceedings whereby:
The competent authorities for enforcement are the courts and enforcement agents.
Enforcement itself takes place through a judicial enforcement process in which the courts are the competent authorities and are assisted by enforcement agents. In addition to the judicial process, the law also provides for a ‘pre-executive extrajudicial procedure’ (procedimento extrajudicial pré-executivo), which is optional and which the creditor may use when certain requirements are met. The competent authorities for the pre-executive extrajudicial procedure are enforcement agents.
Judicial Enforcement Process
Enforcement starts with the submission of the enforcement application in court. The model and the terms of submission of the enforcement application are set out in a Government Order (in 2019, at the time of the revision of this factsheet, it is Government Order No 282/2013 of 29 August 2013).
The forms for use by the party seeking enforcement for enforcement not requiring legal representation by a lawyer, trainee lawyer or legal agent are available on the CITIUS Portal
The enforcement agent must be appointed by the party seeking enforcement. If the said party does not do so, the registrar of the court appoints an enforcement agent automatically and randomly. In exceptional cases provided for in law, the duties of an enforcement agent may be performed by a judicial officer.
In general, the distribution of competences between the court and the enforcement agent is as follows:
It is the responsibility of the judge to:
It is the responsibility of the enforcement agent to:
For enforcements instigated in Portugal, the subject-matter jurisdiction of the courts is as follows:
The territorial jurisdiction of Portuguese courts for initiating enforcement proceedings is as follows:
Pre-enforcement extrajudicial procedure
As an alternative to the judicial procedure, creditors may choose to use a prior administrative procedure referred to as PEPEX (procedimento extrajudicial pré-executivo (pre-enforcement extrajudicial procedure)) - http://www.pepex.pt.
Enforcement agents are the competent authority for carrying out the measures under this procedure.
It is possible to use PEPEX in cases of: national enforcement judgments; other national enforcement orders; foreign judgments declared enforceable; judgments whose enforceability results from EU legislation, treaties or conventions that are binding on Portugal; European enforcement orders. In any of these cases, the following requirements must both be satisfied:
Enforcement agents conduct the search for assets and income using the defendant’s tax number and may only do so in Portuguese databases (they may not consult databases of other Member States). Portuguese legislation allows both legal and natural foreign persons to apply for a tax number even if they do not exercise any activity or have their domicile in Portugal.
PEPEX is a paperless, electronic procedure which is fast and cheaper than judicial proceedings. The electronic application is submitted directly by the creditor by accessing the following IT platform at: http://www.pepex.mj.pt/.
Access to the tax and customs authority portal is obtained via access credentials or through the digital certificate of the ‘citizen’s card’ (cartão de cidadão).
When a creditor appoints an authorised representative, the lawyers (Advogados) and legal agents (Solicitadores) may access the platform using a digital certificate issued for the purpose by their respective professional bodies.
When the application is submitted, the procedure is delivered to an enforcement agent automatically and creditors rapidly (as a rule, in five days after submitting the application) obtain information about the real possibility of recovering the money owed to them or certification that it is uncollectable for tax purposes, without the need to have recourse to judicial proceedings.
The main aim of this procedure is to obtain voluntary payment. Seizure/attachment measures may not take place under a PEPEX procedure. For this to happen, a PEPEX procedure must be converted into enforcement proceedings.
During a PEPEX procedure, the addressee of the application may make voluntary payment or reach a payment agreement with the applicant.
Whenever an applicant opts for notification of the debtor, such notification takes place through personal contact made by an enforcement agent.
Debtors who are validly notified of the procedure and take no action will be included on the public list of debtors, and the abovementioned certificate of uncollectability may thus be issued for legal and taxation purposes. Later, by payment in full of the claim, this situation will be reversed with removal of the debtor’s name from the list and notification of the tax authority.
In a PEPEX procedure, the parties may request the intervention of a judge: the applicant may convert the PEPEX procedure into enforcement proceedings when voluntary payment has not been obtained; the addressee of the application may do so by objecting to the PEPEX procedure.
With respect to costs, the PEPEX procedure is less expensive than judicial proceedings. At a cost of only €51.00 plus VAT, creditors can find out whether or not recovery of their claim is viable, regardless of the value of the claim. If collection is obtained, costs can be greater than € 51.00, depending on the case.
It should also be noted that, if the PEPEX procedure is converted into enforcement proceedings, creditors are exempt from payment of the initial court fee.
The entire enforcement procedure is based on an order which determines the purpose and the limits of the enforcement action. Enforcement orders are considered to include late payment interest, at the legal rate, on the obligation therein.
Judgments are enforceable and enforcement orders may be issued under the following circumstances:
a) Judgments against the defendant
b) Documents drawn up or certified by a notary or other entities or professionals with competence for the purpose, which require the establishment or recognition of any obligation
c) Debt instruments, even though merely handwritten, provided that, in this case, the facts which constitute the underlying relationship feature in the document itself or are set out in the enforcement application
d) Documents to which enforceability is assigned through special provision
With regard to the claim
The claim to be enforced must be certain, due and of a fixed amount. If it is not in the light of the title, the enforcement will begin with measures to make the obligation certain, due and of a fixed amount.
With regard to the creditor
The claim to be enforced must be brought by the person who is named as the creditor in the enforceable title. If the title is made out to the bearer, enforcement will be carried out by the bearer of the title.
If succession has occurred in the right or the obligation, the enforcement must be brought in relation to the successors of the persons who appear as creditor or debtors of the obligation to be enforced. In the enforcement application itself, the party seeking enforcement must set out the facts constituting succession.
With regard to the debtor
The enforcement must be brought against the person who is named as the debtor in the enforceable title.
The debtor's assets are seized even if, for any reason, they are in the possession of a third party, without prejudice, however, to rights which such a third party is entitled to assert against the party seeking enforcement.
The enforcement of a debt backed by a security in rem on third party assets must be brought directly against that third party if the party seeking enforcement wishes to enforce the security, notwithstanding the fact that the debtor may also be sued immediately.
When the enforcement proceedings have been brought against the third party only, and it is known that the assets burdened with the a security in rem are insufficient, the party seeking enforcement can, in the same proceedings, request the continuation of the enforcement proceedings against the debtor, who will be sued for full satisfaction of the claim. When the burdened assets belong to the debtor but they are in the possession of a third party, the latter as well as the debtor may be sued immediately.
In enforcement proceedings brought against a subsidiary debtor, the assets of the subsidiary debtor may not be seized until all of the assets of the main debtor have been seized, provided that the subsidiary debtor invokes, on good grounds, the benefit of discussion within the enforcement objection period.
When the common assets of a married couple are seized in enforcement proceedings brought against only one of the spouses, because it is considered that the party against whom enforcement is sought has insufficient assets, the spouse of the party against whom enforcement is sought is given notice to apply for the separation of assets or to append a certificate evidencing that an action is pending in which separation has already been requested, failing which the enforcement proceedings will continue against the common assets.
When enforcement proceedings are brought against one of the spouses, the party seeking enforcement may allege, stating reasons, that the debt, recorded in an instrument other than the judgment, is joint. In such cases, the spouse of the party against whom enforcement is sought is given notice to declare if he or she accepts that the debt is joint, based on the grounds put forward; otherwise, if the spouse remains silent, the debt is considered joint, without prejudice to any challenge he or she may lodge.
When enforcement proceedings are brought against one or more of the joint owners of an autonomous estate or a joint estate, the assets comprised in the autonomous estate or a fraction thereof, or a specified part of the joint estate, may not be seized.
When enforcement proceedings are brought against heirs, only assets which they have received from the deceased may be seized. When the seizure covers other assets, the party against whom seizure is sought may request the enforcement agent to release the property, indicating which succession assets he has in his possession. The request will be granted if the party seeking enforcement, having been heard, does not object. If the party seeking enforcement objects to the release of the property, the party against whom enforcement is sought may only obtain its release if the inheritance has been accepted unconditionally (without an inventory process having been opened) and provided that he asserts and proves before the court: (a) that the assets seized did not come from the estate; (b) that he did not receive from the estate more assets than those indicated or, if he did so, that the other assets were all used to settle liabilities of the estate.
The main enforcement measures are:
These main enforcement measures may be preceded or followed by other instrumental measures necessary for their implementation (e.g. choice of fulfilment when the obligation is alternative; compliance with a condition or performance of a service on which the obligation to be enforced depends; liquidation of the obligation to be enforced when it is illiquid; evaluation of the cost of fungible performance by a third-party; prior consultations to locate and identify seizable assets; registration of seizure; setting up of a depository for the seized assets; publication of the sale of the seized assets; communication of the sale to the registration office).
The choice of enforcement measures depends on the purpose of the enforcement, which may be: payment of a sum of money; delivery of a certain object; or performance of an act.
In enforcement proceedings for payment of a sum of money, the enforcement measures most appropriate to the purpose of the enforcement proceedings are seizure, sale and payment.
In enforcement proceedings for delivery of a certain object, the enforcement measure most appropriate to the purpose of the enforcement proceedings is the delivery of the said object by the enforcement agent. When the object which the party seeking enforcement should receive cannot be found, he or she may convert the action into enforcement proceedings for payment of a sum of money through payment of the value of the object plus damages resulting from non-delivery.
In enforcement proceedings for the performance of an act, there can be two alternative appropriate enforcement measures: either performance of the act by another person at the expense of the party against whom enforcement is sought, when the act is fungible, plus compensation for the delay; or payment of compensation for damages suffered, when the act is non-fungible, to which a penalty payment may be added. When the party seeking enforcement claims compensation for damages suffered, the action is converted into enforcement proceedings for payment of a sum of money.
All of the debtor’s assets that are seizable may be subject to enforcement.
Enforcement may cover third-party assets when they are tied to the credit guarantee, or when they are the subject-matter of an act detrimental to the creditor which the creditor has successfully challenged.
Only objects and entitlements that can be valued in money may be seized. Assets which fall outside legal trade may not be seized.
With respect to the abovementioned rules, the following assets may be subject to enforcement:
Effects of seizure
Effects of sale
Effects of payment
Effects of delivery of an object
Effects of performance of an act
Sale, payment, delivery of an object and performance of an act are enforcement measures which, once carried out, do not have a validity period. The same applies to seizure, although with the specificity indicated below in relation to the seizure of assets subject to registration.
With regard to the seizure of immovable property subject to registration, the registration of the seizure is compulsory and must be brought about by the enforcement agent. In certain cases expressly provided for by law, the registration of the seizure must be drawn up as provisional. When this happens, the provisional registration expires if is not converted into permanent registration or renewed within the applicable time-limit. Therefore, in the event of the seizure of assets subject to registration, the registration of which is provisional, the enforcement agent must ensure that provisional registration is converted into permanent registration, if this becomes possible in the meantime, or is renewed for the time necessary.
Finally, enforcement proceedings that have been launched may come to an end at the stage of due diligence to locate the debtor’s assets, without reaching payment, if the due diligence proves to be unfruitful on expiry of the time-limits provided for in the law of civil procedure, depending on the cases and the applicable form of the proceedings.
In a broad sense, the word ‘appeal’ (recurso) covers objection to enforcement, objection to seizure and appeal in the strict sense.
Objection to enforcement
The person against whom enforcement is sought may challenge enforcement by raising objections to enforcement within 20 days from the date of the summons.
Without prejudice to the provisions of international and EU law, which are binding upon Portugal and take precedence, under national legislation, the grounds for objection to enforcement vary depending on whether the enforcement is based on a judgment (more restricted); an arbitration decision (a little broader); or a different enforcement title (even broader).
When the enforcement is based on a judgment, objections may be based only on the following grounds:
When enforcement is based on an arbitration decision, in addition to the grounds set out above, it is also possible to rely on the grounds on which judicial annulment of the same decision can be based, without prejudice to the provisions of the Voluntary Arbitration Law (Lei da Arbitragem Voluntária).
When the enforcement is not based on a judgment or on an application for an injunction to which an enforcement order has been joined, in addition to the grounds for objection to enforcement based on a judgment already listed, any other grounds which may be relied on as a defence in the declaration process.
Objection to seizure
The party against whom enforcement is sought, his or her spouse and third parties may object to the seizure of certain assets in the following cases.
When assets belonging to the party against whom enforcement is sought are seized, that party may object to the seizure on any of the following grounds:
If the seizure or any judicially ordered confiscation or delivery of assets breaches the right of ownership or any other right incompatible with the implementation or scope of the measure, vested in someone who is not a party to the case, the injured party may assert this by bringing a third-party action of replevin.
A spouse who is in the position of a third-party may, without the authorisation of the other spouse, defend his or her rights in respect of his or her own assets or joint assets that have been unduly affected by the seizure.
Ordinary appeal proceedings can be made to an appellate court (de apelação) (lodged against judgments delivered by a court of first instance) or on a point of law (de revista) (lodged before the Supreme Court of Justice). Ordinary appeals against judgments delivered in enforcement proceedings are governed by the provisions applicable to the declaration process.
As a rule, an ordinary appeal is admissible only when the case has a value above the amount for which the court whose judgment has been appealed against has jurisdiction and the contested judgments are unfavourable to the appellant by an amount also exceeding half of the amount for which that court has jurisdiction. In Portugal, the amount for which the Appeal Court has jurisdiction is €30,000.00 and the amount for which the court of first instance has jurisdiction is €5,000.00.
Enforcement proceedings provide for certain interlocutory declarations which may or may not take place, depending on the case – e.g. challenges to enforcement through actions of replevin brought by the party against whom enforcement is sought, objection to seizure by the party against whom enforcement is sought or by third-parties, verification and ranking of claims when there are creditors with a security in rem over the assets seized who are claiming payment of their respective claims from the proceeds of the seized assets. An appeal also lies from the decisions made on those interlocutory declarations on the terms set out above.
In particular, in enforcement proceedings, appeals will lie from the following:
An appeal on a point of law lies from:
Yes, constraints relating to protection of the debtor do exist. Some are constraints on seizure, others are constraints on enforcement arising from time-limits.
Constraints on seizure relating to debtor protection consist in the absolute or total immunity from seizure, relative immunity from seizure and partial immunity from seizure of certain assets of the debtor. There are two other constraints: one linked to protection of the joint assets of a couple when the enforcement proceedings are brought against only one of the spouses; and another stemming from the principle of proportionality, according to which only the assets necessary to satisfy the debt and the expenses generated by enforcement should be seized.
The passage of time may constitute a limit on enforcement in the case of prescription or limitation. Once the time-limits concerned have elapsed, the right which it is sought to enforce is extinguished.
How these constraints linked to protection of the debtor and to time-limits operate is explained below.
Assets with absolute and total immunity from seizure
In addition to goods exempt from seizure under a special provision, the following enjoy absolute immunity from seizure:
Assets relatively immune from seizure
Partially seizable assets
Immunity from seizure of sums of money or bank deposits
Sums of money or bank deposits resulting from satisfaction of a claim immune from seizure are immune from seizure, on the same terms as the original claim.
Limits on seizure of joint assets in enforcement proceedings brought against one of the spouses
Limits on seizure imposed by proportionality
Seizure is limited to the assets necessary for the payment of the debt being enforced and the foreseeable costs of the enforcement, which are presumed to be, for the purpose of carrying out the seizure and without prejudice to later settlement, 20%, 10% and 5% of the value of the enforcement, depending on whether that value is within the value for which the District Court has jurisdiction, exceeds that value but does not exceed four times the value for which the Court of Appeal has jurisdiction, or is greater than this last-mentioned value. The value for which the District Court has jurisdiction is €5,000.00 and that for which the Court of Appeal has jurisdiction is €30,000.00 (in 2019, when this factsheet was revised).
Limits on enforcement arising from a limitation periods
As a rule, judicial protection (whose existence or establishment depends on the will of the parties) is subject to a time-bar when not exercised during the period of time established by law.
The court may not of its own motion supply a time-bar. For a time-bar to be effective, it must be invoked, judicially or extra-judicially, by the person whom it benefits, his or her representative or, if the person lacks capacity, by the Public Prosecutor.
When the limitation period has expired, the beneficiary (the debtor) may refuse to make the payment or challenge, in any manner, the exercise of the time-barred right. Should enforcement proceedings have been brought against the person concerned, the debtor against whom enforcement is sought may object to enforcement through an action of replevin in which he or she relies on the time-barring. The time-limit for objections to enforcement is 20 days from the summons.
However, a debtor may not seek recovery (return) of an instalment payment he or she made spontaneously to comply with a time-barred obligation, even when it was made without knowledge of the time-bar. This rule applies to all forms of satisfaction of the time-barred right, as well as to its recognition or the provision of guarantees.
The time-bar may be relied on against the party seeking enforcement by the debtor’s creditors and by third-parties with a legitimate interest in having it declared, even when the debtor has waived it. However, if the debtor has waived it, the time-bar may only be relied on by the debtor’s creditors if the requirements set out in civil law for an action for avoidance (impugnação Pauliana) have been met.
If a debtor who is being sued does not plead that the claim is time-barred and he or she loses the case, the case judged does not affect the right granted to the creditors.
The normal limitation period is 20 years but short-term time-bars do exist.
The following have a five-year limitation periods:
The law lays down presumed time-bars (based on the presumption of compliance) in the following cases:
When a limitation period described in civil law as a presumed limitation period is involved, the following rules apply:
Time-barring of rights recognised in a judgment or enforcement order operate as follows:
Civil law lays down rules on the start of the limitation period, its suspension and interruption. When there are grounds for suspension (e.g. minors, military service, force majeure, fault of the debtor), the limitation period does not start or run. When a limitation period is interrupted, the time elapsed becomes totally unused and a new limitation period starts to run.
A creditor interested in interrupting a limitation period may do so by making use of or relying on one of the following acts:
If the summons or notification is not carried out within five days after being requested, for a reason not attributable to the applicant, the limitation period will be interrupted when five days have elapsed.
The annulment of the summons or notification does not prevent the interruption provided for in the previous paragraphs.
For the purposes of this Article, any other judicial means by which knowledge is given of the act to the person against whom the right may be exercised is considered to be equivalent to a summons or notification.
Interruption of a limitation period has the following effects (unless the law specifically provides otherwise):
Limits on enforcement arising from the expiry date
When, by force of law or the will of the parties, a right must be exercised within a certain time-limit, the rules on expiry apply, unless the law expressly refers to the limitation period.
Expiry may only be stopped by performing, within the time-limit laid down in law or an agreement, the act to which the law or an agreement attributes a preventive effect. The mere bringing of the action for a declaration or enforcement prevents expiry, unless it is necessary to serve a summons on the debtor. When a set time-limit is involved due to a contract or legal provision relating to judicial protection, recognition of such protection by the person against whom it must be exercised also prevents expiry.
The expiry time-limit is not suspended or interrupted except in the cases in which the law so determines and, should the law not set an alternative date, it starts to run at the time the right could legally be exercised.
Expiry is assessed by the court of its own motion and may be claimed at any stage of the proceedings, if it refers to judicial protection. If it refers to judicial protection on the basis of which an enforcement proceeding is brought, expiry must be invoked by the person whom it benefits (in principle, the debtor/party against whom the enforcement is sought).
The EJN-Civil Contact Point, the courts or other entities and authorities are not bound by the information contained in this factsheet. It is also still necessary to read the legal texts in force. These are subject to regular updates and evolutionary interpretation of case-law.
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