Interim and precautionary measures are types of protective measures that can be requested of the court within the scope of protective proceedings. The interim protection of rights is not limited to protective proceedings, since the Portuguese legal system provides for other provisional measures for the protection of certain legal situations - e.g.: a) interim measures during interdiction or disqualification proceedings; b) provisional curatorship of an absentee's property; c) appointment of a curator ad litem; d) measures necessary to protect property comprising an estate in abeyance.
Protective measures are intended to eliminate periculum in mora (the fear that a delay in the court judgment will cause serious and or irreparable damage to the asserted right) and to ensure the effectiveness of the final judgment (cf. Article 2 of the Civil Procedure Code).
The court takes steps to enact certain measures in the expectation or anticipation that its provisional judgment will be confirmed by the final judgment.
Unless reversal of responsibility for action is ordered, protective proceedings relate to cases based on protected rights (Article 364 of the Civil Procedure Code), protecting or provisionally anticipating the effects of the definitive measure on the assumption that the decision handed down in the main proceedings will be favourable to the applicant.
The threat of periculum in mora authorises the court to preliminarily and summarily consider a substantial legal relationship which must then undergo a deeper and more lengthy examination; when this preliminary consideration is favourable to the applicant, measures are issued with the aim of safeguarding against the threat.
Protective measures are intended to ensure the practical results of the action, to avoid serious damage or to anticipate the realisation of the right (hypothetical instrumentality), achieving a balance, to the greatest extent possible, between the interests of speed and legal certainty.
Portuguese civil procedural law provides for two types of protective measures:
The first is governed by Article 362 of the Civil Procedure Code, which provides that where someone shows a justified fear that another person may cause serious and irreparable damage to their rights, they may, if none of the protective measures laid down by law are suitable for the case, request the appropriate precautionary or anticipatory measure to secure the effectiveness of the right at risk. The interest of the applicant may be based on an existing right or on a right emerging from a decision to be handed down in constitutive action, whether pending or already brought. Common protective measures are not applicable when the intention is to safeguard the risk of injury specifically prevented by any of the specified measures.
Specified protective measures are those expressly provided for in the Civil Procedure Code or in separate legislation.
The following are specified protective measures set out in the Portuguese Civil Procedure Code:
Where someone demonstrates a justified fear that another person may cause serious and irreparable damage to their rights, they can request the appropriate precautionary or anticipatory measure to secure the effectiveness of the right at risk. The interest of the applicant may be based on an existing right or on a right emerging from a decision to be handed down in constitutive action, whether pending or already brought.
Measures of this kind are taken if there is a serious likelihood that the right is real and if there is a sufficiently well-founded risk of its being infringed. Measures may, however, be refused by the court if the damage to the applicant resulting from its application would considerably exceed the damage the applicant wishes to avoid through use of the measure.
The use of common protective measures, in a subsidiary manner, also depends on the absence of a specified protective measure that is appropriate to the actual situation.
Thus, the unspecified preventive measures referred to in Article 362 of the Civil Procedure Code have the following legal requirements:
In order for measures to be ordered, there needs to be summary - summaria cognitio - evidence of the serious likelihood that the right asserted is real (fumus bonis juris) and the justified fear that the natural delay in the final resolution of the dispute may cause irreparable damage or damage that is difficult to repair (periculum in mora). The judge must be inclined to believe that the result of the main case will be favourable to the applicant, as precautionary measures entail clear interference within the defendant's legal sphere.
With regard to specified protective measures:
Except for the embargo on new work, for which it is possible to take initial out‑of‑court action followed by an application for confirmation by the court, all the other protective measures are based on an initial application to the court in which the applicant provides summary proof of the right at risk and justifies the fear of injury. In this application, the list of witnesses is submitted and other evidence requested, with a limit of five witnesses.
Upon request, the judge, in the decision ordering the measure, may waive the applicant's burden of bringing the main action if the material acquired in the proceedings has led him (the judge) to believe that the safeguarded right is real and the nature of the measure decreed is appropriate to reach final settlement of the dispute. This exemption may be applied for until the end of the final hearing; in the case of non-adversarial proceedings, the defendant may oppose the reversion of the responsibility for action together with a challenge of the measure decreed.
The regime of reversal of responsibility for action applies mutatis mutandis to the provisional restitution of ownership, the suspension of corporate decisions, provisional maintenance, new construction embargoes and other measures provided for in separate legislation which, by their nature, enable final settlement of the dispute.
When the law does not establish that the measure will be adopted without hearing the defendant, the defendant will be heard by the court, except if the hearing would place the aims or effectiveness of the measure at serious risk.
When they are heard before the measure is decreed, the defendant is summoned to oppose within ten days. The summons is replaced by a notification when the defendant has already been summoned for the main case.
When the deadline to oppose has expired and the defendant has been heard, where appropriate the evidence required or determined by the court is taken.
If the defendant has not been heard and the measure is to be decreed, the defendant is only notified of that decision after it has been made. Following notification they are entitled to appeal, in general terms, against the order decreeing the measure if they consider that, in light of the facts, it should not have been granted. They may also lodge an opposition if they wish to put forward facts or produce evidence not taken into account by the court that may remove the grounds for the protective measure or cause it to be reduced. The defendant may challenge, by any of the aforementioned means, the decision to reverse responsibility for action. If the defendant lodges an opposition, the court must decide whether to maintain, reduce or withdraw the previously decreed measure. This decision and, where applicable, the maintenance or withdrawal of reversal of responsibility for action is appealable and leads, where appropriate, to the taking of the evidence required or determined by the court of its own motion.
Matters of territorial jurisdiction are governed by Article 78 of the Civil Procedure Code, under which:
If the responsibility for action is not reversed, the proceedings are joined to the files as soon as the action has been brought; if the action has been brought in another court, it is forwarded there and that court has exclusive jurisdiction over the next steps.
If protective measures are requested in the course of an action, they should be brought in the court where the attached action is taking place, unless the action is pending an appeal; in that case the joinder only takes place when proceedings have finished or when the files of the main action are passed to the first instance.
Representation by a lawyer is mandatory where the value of the measure exceeds
€5 000.00 or where appeals are admissible.
The value of protective measures is determined as follows:
When assessing the criteria for ordering a protective measure, the court must always examine whether the fear invoked is well-founded and how serious and difficult it will be to repair the potential infringement of the right at issue. It will also assess whether the precautionary or interim measure is appropriate in the specific case at issue, with a view to safeguarding the right alleged to be at risk. It must establish that there is a risk associated with any delay.
It will also examine whether the proceedings are actually or potentially dependent on an action brought or to be brought that is based on the right safeguarded.
In this type of proceeding, it is for the court to obtain a summary (i.e. less rigorous than in the main proceedings) demonstration that there is a real likelihood that the right to be safeguarded exists and that the fear of its being infringed is sufficiently justified.
For the other conditions to be met in relation to specific protective measures, please see the reply to questions 1 and 2.
All protective measures are regarded as urgent, taking priority over any other non-urgent judicial acts, and must be decided at first instance within two months at most or, if the defendant does not have to be summoned, within 15 days.
Rights and movable and immovable property not totally or partially excluded by law may be subject to protective measures.
Since they are ordered by the courts, protective measures are binding on all public and private entities and take precedence over measures adopted by any other authority (Article 205(2) of the Constitution of the Portuguese Republic). Any person who infringes the protective measure decreed will incur the penalty of qualified disobedience, notwithstanding the measures appropriate to their enforcement.
Notwithstanding the applicant being relieved of the burden of bringing the main action, the protection measure is extinguished and, when decreed, expires:
Notwithstanding the rules on the distribution of the burden of proof, as soon as the decision decreeing the protective measure and reversing the responsibility for action has become final and unappealable, the defendant is notified that any action to challenge the existence of the protected right must be brought within 30 days of notification, otherwise the measure enacted is consolidated as a definitive component of the dispute.
The same penalty applies when, after the action has been brought, the process is stopped for more than 30 days by the applicant's negligence or the defendant is acquitted and the applicant fails to bring any further action in time to take advantage of the effects of the previous action.
The expiry of the measures decreed depends on the validity, by final and unappealable judgment, of the action brought by the applicant.
Ordinary appeals are admissible when the proceedings have a value greater than the limit of the court before which the decision is appealed and the contested decision is disadvantageous to the party bringing the appeal by more than half of this amount. Appeals may also always be brought against decisions relating to the value of protective measures on the grounds that the value exceeds the limit of the court which took the contested decision and the preliminary refusals of initial applications for protective measures.
Decisions ordering reversal of responsibility for action are only appealable in conjunction with appeals against decisions on the requested measure; decisions to reject the reversal are final and unappealable.
Appeals may not be brought before the Supreme Court of Justice against decisions ordering protective measures, including those that determine the reversal of responsibility for action, without prejudice to cases in which an appeal is always admissible.
Any party to the proceedings who loses the case and anyone who is not a party to the proceedings but suffers a direct and real loss as a result of the protective measure may challenge that measure.
The court with jurisdiction to hear the appeal is a second‑instance court in the judicial district in which the court which handed down the contested decision is located.
The time limit for lodging appeals is 15 days from the date of notification of the decision. If the appeal also concerns the reappraisal of recorded evidence, the time limit increases by 10 days.
An appeal brought against an order which rejects outright or does not order the measure has a suspensive effect. In other cases it has a purely devolutive effect.
Further information may be obtained from the following websites:
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