COVID-19: Return of the regime for the suspension of procedural periods and proceedings in Portugal
COVID-19: Return of the regime for the suspension of procedural periods and proceedings in Portugal
Litigation and Arbitration Alert Portugal
As a result of the exceptional worsening of the COVID-19 pandemic currently in Portugal, the Portuguese Parliament, at the proposal of the Government, approved Law No 4-B/2021, dated February 1, determining a set of exceptional, temporary and urgent measures within the scope of the development of judicial and administrative activities, basically returning to and developing measures already applied previously in the first half of 2020 when combatting the first wave of the pandemic.
This Alert sets out the most relevant points of this exceptional regime now approved.
I. Procedural periods:
A. Non-urgent proceedings
The suspension of procedural periods has been determined
Notwithstanding the exceptions mentioned below, this suspension regime applies to all procedures and periods for carrying out procedural and administrative acts to be performed in proceedings taking place before the courts of justice, administrative and tax courts, the Constitutional Court and collaborating entities, Audit Court and other jurisdictional bodies, arbitral tribunals, Public Prosecutor’s Office, justices of the peace, alternative dispute-resolution entities and tax collection bodies.
Also suspended are any expiry and time-barred periods relating to all proceedings and procedures identified in (a), with this regime having priority over any other regimes establishing maximum mandatory expiry and time-barred periods, which are increased by the length of time that the suspension lasts.
The suspension also applies to any acts to be performed in enforcement or insolvency proceedings related to carrying out procedures involving the judicial surrender of family homes, or the handover of premises, particularly within the scope of eviction orders, special eviction procedures and procedures for the handover of leased property when, at the request of the tenant or formertenant and after hearing the counterpar, a decision is handed down confirming that such acts place them in a vulnerable position due to their lack of own housing or for any other imperative social reason.
Also suspended are any acts to be performed in enforcement proceedings, with the following exceptions:
i. Payments to be made to the enforcing party creditor through the proceeds from the sale of pledged assets;
ii. Acts causing serious damage to the livelihood of the enforcing party or the non-performance of which causes it irreparable damage, damage which depends on a prior judicial decision.
f. The rule mentioned above in (b) does not apply to prior supervision proceedings of the Audit Court.
g. However, this suspension does not prevent:
i. The processing by the higher courts of non-urgent proceedings, notwithstanding the fulfillment of the provisions of point iii. below when they involve face-to-face acts;
ii. The processing of non-urgent proceedings, especially by court clerks;
iii. The performance of non-urgent procedures and acts when all the parties agree to this and expressly state they are in a position to ensure they can be carried out through online platforms enabling their performance electronically or through appropriate remote means, in particular conference calls, videoconferencing or any other equivalent means;
iv. A final decision from being handed down in proceedings in relation to which the court and other entities mentioned in point (a) above understand that no further procedures are needed, in which case the periods for filing an appeal, nullity pleas or requests for the rectification or reconsideration of the decision are not suspended.
B. Urgent proceedings
a. Any proceedings, acts and procedures considered urgent by law or by a decision of a judicial authority continue to be processed, without any suspension or interruption of periods, acts or procedures, observing the following in respect of them:
i. In those procedures that require the physical presence of the parties, their representatives or other parties appearing in the proceedings, the performance of any procedural acts, if this does not cause any harm for the purposes of carrying out justice, is carried out through appropriate remote means, in particular conference calls, videoconferencing or any other equivalent means;
ii. When it is not possible to carry out procedures requiring the physical presence of the parties, their representatives or other parties appearing in the proceedings, in the terms of the previous point, the procedure may be carried out in person, namely under the terms of paragraph 2 of article 82 of Law No 62/2013, dated August 26, with the court being responsible for ensuring this is done at premises not involving the presence of a number of persons higher than that established by health authority recommendations and in accordance with the guidelines set by the competent judicial councils.
The following are also considered urgent, for these purposes:
i. Procedures and proceedings in the defense of rights, freedoms and guarantees harmed or under threat of harm from any unconstitutional or unlawful decisions, in reference to article 6 of Law No 44/86, dated September 30, in its current wording;
ii. Any proceedings, acts and procedures that are necessary in order to avoid any damage that is irreparable or hard to repair, in particular proceedings relating to endangered minors or guardianship proceedings of an urgent nature and proceedings and trials of imprisoned defendants.
C. Aspects in common to urgent and non-urgent proceedings
Those parties, their representatives or any other parties appearing in the proceedings who have been proven to be over 70 years of age, immuno-compromised or suffering from a chronic illness who, according to the health authority guidelines, should be considered to be at risk, are not obliged to travel to a court. If they exercise their right not to travel, the respective examination or follow-up of the procedure must be carried out through appropriate remote means, in particular conference calls, videoconferencing or any other equivalent means, from their legal or professional address.
In any of the procedures mentioned in A.(g).iii and B.(a).i, the provision of statements by the accused and any joint litigants, or witness or opposing party statements, must be made from a court or public building facilities, provided this does not involve the presence of a number of persons higher than that established by the health authority guidelines and in accordance with the guidelines set by the competent judicial councils.
In those acts and procedures performed through remote means of communication, except in the case of the accused, the provisions of article 160(3) of the Civil Procedure Code and articles 95(1) and 95(2) of the Criminal Procedure Code do not apply, which is recorded by the court official in the actual record.
The Courts and other entities mentioned in I.A.(b). must be provided with the means of protection and sanitization disinfectants as established by the recommendations of the General Healthcare Directorate (Direção-Geral de Saúde) (DGS).
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 situation of insolvency [with a debtor being considered to be in a situation of insolvency when it is impossible for it to meet its matured obligations], or the date on which it should have been aware of it.
Through the effects of the Law approved herein, the period mentioned in point (a) is also suspended.
E. Periods for carrying out procedural acts
Also suspended are the periods for carrying out acts in:
i. Procedures taking place at notaries’ and registry’s offices;
ii. Administrative offense, penalty and disciplinary proceedings, including acts of judicial opposition to provisional or final decisions, taking place with direct, indirect, regional and state administration services and any other administrative entities, in particular independent administrative entities, including the Competition Authority, the Pension Funds and Insurance Supervisory Body, the Bank of Portugal and the Securities and Exchange Commission, as well as those taking place with public professional associations;
iii. Administrative and tax proceedings (only certain procedural acts are covered by the latter) as regards the performance of acts by individuals.
b. Also suspended are any expiry and time-barred periods relating to all proceedings and procedures identified in (a), with this regime having priority over any other regimes establishing maximum mandatory expiry and time-barred periods, which are increased by the length of time that the suspension lasts.
The following periods are not suspended. Those relating to:
i. Special administrative proceedings, classified by law as urgent, in particular competitive recruitment procedures, regulated under the General Public Official Employment Law, approved as an annex to Law No 35/2014, dated June 20, in its current wording, or any others, provided it is possible to ensure acts can be carried out in the proceedings by remote means of communication or, when this is not possible, by respecting the general guidelines established by the health authorities;
ii. Competitive procedures within the scope of the judiciary provided for in the respective statutes, as well as administrative proceedings for entering the judiciary (judicial, administrative and tax branches, as well as the Public Prosecutor’s Office) regulated by Law No 2/2008, dated January 14, in its current wording.
iii. Public procurement proceedings, in particular those appearing in the Public Contract Code, approved as an annex to Decree-Law No 18/2008, dated January 29, in its current wording;
iv. Auction proceedings for the Attributing of Rights-of-Use for Frequencies in the 700 MHz, 900 MHz, 1800 MHz, 2.1 GHz, 2.6 GHz and 3.6 GHz bands, object of Regulation No 987-A/2020, dated November 5;
v. The performance of acts carried out exclusively online within the scope of the competences of the National Industrial Property Institute.
Those proceedings not subject to the suspension of periods are subject to the provisions of B.(a), with the corresponding adjustments.
F. Entry into force and rendering of effects
These measures entered into force on February 2, 2021.
Nevertheless, they will render effects as from January 22, 2021, notwithstanding any judicial procedures and procedural acts performed and carried out in the meantime