European Commission

 

Enforcement fiche for Portugal



I. ADMINISTRATIVE ENFORCEMENT
Which administrative mechanisms are available to enforce the UCP Directive? The administrative mechanisms available in Portugal to enforce the Unfair Commercial Practices Directive (UCP Directive) are included in Decree-Law No. 57/2008, of 26 March 2008 (“UCP Act”), which implemented the UCP Directive. The UCP Act sets forth the system of penalties applicable in case of Unfair Commercial Practice as well as the Administrative Authorities which are competent to apply such penalties. In accordance with Article 19 of the same Act, the administrative authorities competent to enforce the UCP Act are the “Autoridade de Segurança Alimentar e Económica” (ASAE, Food and Economic Safety Authority), and the Regulatory Entity in overseeing the sector in which the unfair commercial practice occurred. In addition to these authorities, the UCP Act further sets forth that owners of codes of conduct that provide for a higher level of consumer protection can also control the unfair commercial practices referred to in the Act [Article 17].
Who can file administrative complaints? In accordance with Article 20 of the UCP Act, any person, including competing traders, with a legitimate interest in opposing any unfair commercial practice as prohibited under the UCP Act, may bring the matter before the relevant administrative authority, using, for such purpose, any means at its disposal.
Do any specific procedural requirements apply to filing administrative complaints? The UCP Act does not contain any specific procedural requirements regarding the filing of administrative complaints. Contrarily, it sets forth that any potential unfair commercial practice may be brought to the attention of the relevant administrative authority, by any means at the parties’ disposal. In accordance with information available on the ASAE website (http://www.asae.pt/), the common practice is for the interested parties to contact the relevant authorities via email, fax, letter or telephone, disclosing and describing the facts they consider to be unfair commercial practices. For this purpose, forms are also available for download on ASAE’s website.
Do the administrative authorities have an obligation to investigate the complaint? Under Decree-Law No. 433/82, of 27 October 1982 - the Administrative Sanction’s Act - administrative authorities shall take due account of all events or circumstances that may potentially trigger the application of administrative sanctions. Therefore, we conclude that under the applicable law, the authorities have an obligation to investigate the complaints filed.
Are there any specific requirements regarding the provision of evidence to the competent authorities? UCP Act Articles 19.4, 19.5 and 22 set out the principles applicable to the provision of evidence to the competent authorities. In this context, the competent authorities, services and traders are required to cooperate with the administrative authorities in completing and carrying out their tasks [Articles 19.4, 19.5]. Moreover, the competent courts and administrative authorities can require traders to provide evidence of the material accuracy of the facts contained in the commercial practices regulated in this Decree [Article 22].
II. ENFORCEMENT THROUGH COURT ACTION
Which court actions are available to enforce the UCP Directive? Article 16 of the UCP Act sets forth a “right of action”, for purposes of preventing, rectifying or putting a stop to unfair commercial practice. The requirements for this special procedure are included in Law No. 24/96 of 31 July 1996, on Consumer Protection (Law on Consumer Protection). Article 10 of same Law sets forth a right to prevention as well as injunctive relief. In addition, a general claim for civil damages under Article 483 of the Civil Code can be filed before the competent civil courts.
Who can start a court action? In accordance with Article 16 of the UCP Act, any person - including competitor traders - with a legitimate interest in opposing unfair commercial practices may bring the matter before the courts.
Can court actions be initiated by competitors? Yes, as long has they can show the have a legitimate interest in opposing the relevant unfair commercial practice.
Can the case be handled through an accelerated procedure? The “injunction action”, as set out in the Law on Consumer Protection follows an accelerated procedure, named “processo sumário” (literally translated as “summary proceedings”).
Are there any specific requirements regarding the provision of evidence to the court? The provision of evidence to the court follows the rules set forth in the Portuguese Civil Procedural Code for the “summary proceedings”. In accordance with the provisions of this Code on summary proceedings, the total number of witnesses may not exceed 10, and there can only be 3 witnesses per fact under discussion.
III. SANCTIONS
What are the possible civil sanctions and remedies for the infringement of the UCP provisions? The sanctions arising out of the “injunctive action” procedure as set out in the Law on Consumer Protection are triggered in case of infringement of the UCP provisions. The courts may order the cessation of the alleged infringements as well as award damages arising out of the unfair commercial practice. Furthermore, the competent civil court may also award damages under the general rules for civil damages based on Article 483 of the Civil Code. Finally, Article 15 of the UCP Act also determines that any consumer harmed by any unfair commercial practice prohibited under the UCP Act shall be compensated under the general terms of law, meaning that the general civil liability rules will be applicable. These damages, however, should be interpreted as an indemnification measure rather than as sanctions. Courts can also order coercive civil fines, in order to ensure that the decision will be effectively complied with.
What are the possible criminal sanctions for the infringement of the UCP provisions? Under Portuguese law, infringements to the UCP provisions may lead to the application of administrative sanctions and not criminal.
What are the possible administrative sanctions for the infringement of the UCP provisions? In accordance with the rules of the UCP Act, the administrative authorities can order precautionary measures, such as (i) temporary cessation of an unfair commercial practice, or (ii) prohibition of an imminent unfair commercial practice before it is carried out [Article 20]. The UCP Act sets forth further administrative sanctions, such as (i) fines ranging from € 250 to € 3 740.98 for natural persons and from € 3 000 to € 44 891.81 for legal persons;(ii) seizure of property belonging to the offender (for a maximum period of 2 years from the date on which the judgment becomes final); (iii) ban from exercising professions or activities requiring certification, authorization or approval by public authorities (for a maximum period of 2 years from the date on which the judgment becomes final); (iv) closure of premises of the operation which is subject to a permit or license issued by a public government authority (for a maximum period of 2 years from the date on which the judgment becomes final); and (v) publication of the imposition of fines and additional penalties at the offender’s expense.
What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction? In accordance with Article 14 of the UCP Act, contracts concluded under the influence of any unfair commercial practice may be annulled at the consumer’s request in accordance with Civil Code Article 287. The consumer may also request the contract be amended in accordance with the principles of fairness, instead of being annulled. If the invalidity affects only one or more clauses of the contract, the consumer may choose to keep the contract, as long as same is reduced to its valid content.
How can consumers get redress/compensation (e.g. through collective actions)? Portuguese law allows consumers to claim redress/compensation through collective actions. This possibility is set out in the UCP Act, in conjunction with the Law on Consumer Protection, Law No. 83/95, of 31 August 1995, as amended by Law No. 25/2004, of 8 July 2004 and Article 52.3 of the Portuguese Constitution. Apart from the collective action procedure, consumers should consider the “injunctive action” as set out in the UCP Act and in the Law on Consumer Protection. Finally, the consumer may also claim redress in a civil damages claim under Article 483 of the Portuguese Civil Code.
Can the administrative authorities or the courts require the publication of their decisions? The publication of imposed fines and additional penalties at the offender’s expense is one of the administrative sanctions, as set out in the UCP Act.
IV. OTHER TYPES OF ENFORCEMENT
Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive? According to the UCP Act, the administrative authority competent to receive complaints and order the measures to prevent/remedy the occurrence of unfair commercial practices is ASAE or the regulatory body overseeing the sector in which the unfair commercial practice occurred [Articles 19 and 20 of the UCP Act]. Therefore, all regulatory bodies of the sectors where unfair commercial practices may occur will deal with aspects of the UCP directive. In this context, the UCP lists specific regulatory entities for different sectors, such as: (i) Bank of Portugal (“Banco de Portugal”); (ii) Securities Market Commission (“Comissão de Mercados de Valores Mobiliários”); (iii) Portuguese Insurance Institute (“Instituto de Seguros de Portugal”), in case of unfair commercial practices occurring within their respective financial sectors [UCP Article 19.2]. In addition to the above mentioned authorities, the UCP Act further refers to the (iv) Directorate General for Consumer Affairs (“Direcção-Geral do Consumidor”), for cases when the unfair commercial practices occur in the advertising sector.
Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)? In Portugal there is no mediating service (e.g., an ombudsman) which deals specifically with aspects of the UCP directive. However, consumers often use consumer defense mediating services for the purpose of mediating UCP’s conflicts. The Consumer General Directorate is the most important entity for Consumer Rights (http://www.consumidor.pt/). Moreover, there is the Center for Consumer’s Conflicts Arbitration http://www.arbitragemdeconsumo.org/ with mediation centers all over the country and several local consumer associations.