COVID-19: Exceptional measures for the Portuguese Courts and Justice Authorities

Litigation and Arbitration Portugal Alert

On April 2, 2020, the Portuguese Assembly of the Republic approved Law No. 4-A/2020, dated April 6, which made the first amendment to Law No. 1-A/2020, dated March 19. The latter established various temporary and exceptional measures in response to the pandemic caused by the SARS-CoV-2 coronavirus and COVID-19 infection, affecting the area of the Portuguese Courts and Justice Authorities. From the outset, in terms of deadlines, court proceedings and entry into force, various shortcomings, inaccuracies and doubts over interpretation associated with the application of such a relevant instrument became apparent.   

In response to this, in an attempt to re-establish legal certainty in an essential area for effective access to the law and the courts, Law No. 4-A/2020 has now arisen.

This Alert contains the most relevant points of this temporary exceptional regime, as seen from the amendment now approved.

I. Procedural periods

A. Non-urgent proceedings

  • The suspension of all procedural periods has been determined.
  • Notwithstanding the exceptions referred to below, this suspension regime applies to all periods for all procedural and processing actions to be carried out within the scope of any proceedings or procedures being heard by the courts of law, tax or administrative courts, the Constitutional Court, the Court of Auditors, arbitral tribunals, the public prosecution service, justices of the peace, alternative dispute resolution bodies and tax enforcement bodies.
  • The suspension also applies to any actions to be carried out in enforcement proceedings, especially in respect of any sales, creditors’ arrangements, the judicial handover of real estate and pledges and the preparatory acts thereof, with the exception of those that might cause serious harm to the subsistence of the executing creditor, or the non-performance of which might cause it irreparable damage, with the latter depending on a prior court decision.
  • Also suspended are any eviction orders, special eviction proceedings and procedures for the handover of leased properties, when the tenant, due to a final decision to be taken, may be placed in a vulnerable position due to a lack of main housing or for any other compelling social reason.
  • However, this suspension does not prevent:
  1. The performance of non-urgent procedures and acts, with or without the presence of the parties, when all of them state they are in a position to ensure such procedures and acts can be carried out through online platforms enabling their performance through electronic means or suitable remote means of communication, such as telephone conference calls, videoconferencing or any other equivalent;
  2. A final decision from being handed down in proceedings in relation to which the court and other entities understand that no further procedures are needed.

B. Urgent proceedings

  • Any urgent proceedings will still be processed, without any suspension or interruption of any periods, acts or procedures, with the following observations: 
  1. In those procedures requiring the physical presence of the parties, their representatives or other procedural participants, any processing or procedural actions can be carried out through suitable remote means of communication, such as telephone conference calls, videoconferencing or any other equivalent
  2. When it is not possible to carry out those procedures requiring the physical presence of the parties, their representatives or other procedural participants in the terms of the previous point, and the life, physical integrity, mental health, freedom or immediate livelihood of the participating parties depend on them, the procedure may be carried out in person provided it does not involve the presence of a number of people higher than that established by the recommendations of the health authorities and in accordance with the guidelines established by the competent senior bodies
  3. Should it not be possible, or appropriate, to ensure the performance of any actions or procedures in the terms of the previous points, these proceedings will also be subject to the suspension regime mentioned above in relation to non-urgent proceedings.
  • The following are also considered urgent, for these purposes: 
  1. Any procedures and proceedings for the defense of any rights, freedoms or guarantees harmed or threatened by any unconstitutional or unlawful measures, as described in article 6 of Law No. 44/86, dated September 30;
  2. The urgent service established under article 53.1 of Decree-Law No. 49/2014, dated March 27;
  3. Any processes, proceedings, actions or procedures seen as necessary in order to avoid any irreparable damage, in particular any proceedings related to minors at risk or educational protection proceedings of an urgent nature, and those procedures and trials involving arrested defendants.

C. Insolvency

  • In legal terms, the debtor must apply for the declaration of insolvency within the 30 days following the date on which it becomes aware of its position of insolvency [with any debtor finding it impossible to meet its matured obligations being considered to be in a position of insolvency], or the date on which it should have become aware of it.
  • Due to this amendment of Law No. 1-A/2020, the period mentioned in point (a) is also suspended.

D. Other proceedings

  • The foregoing also applies, with the necessary amendments, to the performance of actions in:
  1. Proceedings taking place at notaries’ and registry's offices;
  2. Administrative offense, penalty and disciplinary proceedings, including actions for legally challenging final or interlocutory decisions, taking place with direct, indirect, regional and municipal administration services, and any other administrative entities, particularly independent administrative entities, including the Competition Authority, the Insurance and Pension Fund Supervisory Authority, the Bank of Portugal and the Securities and Exchange Market Commission, as well as those taking place with professional public associations;
  3. Administrative and tax proceedings (with the latter only covering certain procedural actions) as regards the performance of actions by individuals.
  • Those periods relating to the performance of actions exclusively through electronic means within the scope of the competences of the National Industrial Property Institute (Instituto Nacional da Propriedade Industrial) (INPI) are not suspended.

E. Temporary extraordinary regime for the protection of tenants

  • While the aforementioned measures are in place, and up to 60 days after they have ended, on a date to be defined by a decree-law declaring the end of the exceptional situation, the following are suspended:
  1. The rendering of the effects of complaints involving residential or non-residential lease agreements made by the landlord;
  2. The expiry of any residential or non-residential lease agreements, unless the tenant does not oppose the termination;
  3. The rendering of the effects of the revocation or opposition to the renewal of residential or non-residential lease agreements made by the landlord;
  4. The period indicated in article 1053 of the Civil Code [period for the return of the property, in any of the cases of expiry established under paragraphs b) et seq. of article 1051 of the Civil Code], if the conclusion of this period occurs during the time in which the aforementioned measures are in place;
  5. The foreclosure of any property constituting the main permanent residence of the party subject to foreclosure.

F. Time limits and expiry

The periods for any time limits and expiries relating to all types of procedures and proceedings are also suspended..

G. Entry into force and duration                       

These measures render effects as from March 9, 2020, except for those referring to urgent proceedings and the INPI, which enter into force on April 7, 2020, and the temporary extraordinary regime for the protection of tenants, which render effects as from March 12, 2020.

This regime will be in place until the declaration, through a decree-law, of the date of the conclusion of the exceptional situation of the prevention, containment, mitigation and treatment of the SARS-CoV-2 virus and COVID-19 pandemic.