“It is very easy to initiate collective action” in Portugal. But is this system promoting fair access to justice? Or simply allowing excessive litigation?
Portugal is a leader in collective actions in the European Union, according to a recent report from CMS, within the scope of the Global Symposium on Collective Actions, which will take place in Lisbon on the 12th and 13th of November.
According to the international law society, the The UK is Europe’s leading collective action market, followed by Portugalwhose processes went from 5% of the total in Europe in 2020 to 23% in 2023.
Historically, class actions were more common in the US, Canada and Australia, but Europe’s recent accession — marked by class action suits like the UK in 2015 and the Netherlands’ WAMCA Act in 2020 — has altered this landscape.
Today, an EU Representative Actions Directive obliges Member States to establish frameworks for collective actions by mid-2023.
Although established in the 1960s, the class action structure in Portugal has only gained momentum in recent years due to a combination of regulatory changes and the rise of consumer groups and international litigation firms.
“We have an increasingly regulated and consumer-oriented market“, says Sofia Vaz Sampaio, responsible for the litigation and arbitration area at Morais Leitão, Galvão Teles, Soares da Silva & Associados, cited by .
The country’s system is favorable to applicants, with a mechanism for opt-out which allows collective actions without individual participation, and does not have a preliminary certification phase, which facilitates the initiation of processes — a structure that is increasingly present, particularly in anti-competitive actions, for example, against the technological giants Apple and Google.
But is this system promoting fair access to justice? Or simply allowing excessive litigation?
“It is clearly a plaintiff-friendly jurisdiction and the combination of these factors has led to the filing of dozens of class actions in the last two years,” the lawyer begins by saying, “it is clearly one of the main features that has made our jurisdiction a very attractive and plaintiff-friendly jurisdiction. the applicants.”
“It’s very easy to start a collective action“, as there is no preliminary certification phase. But the expert warns — Portugal’s 23% participation in European collective actions could be a sign of a lack of safeguards against abuse.
“A strong system must simultaneously guarantee or improve citizens’ access to justice, but must also guarantee adequate safeguards to prevent abusive litigation. When you reach these types of numbers, it is clear that you are not being successful in avoiding abusive litigation”, he believes, despite considering that “some jurisdictions are being more careful, more restrictive, in applying the directive”.
Calls for reform, including a potential shift from opt-out to opt-in, could help reduce unnecessary cases and reflect citizens’ genuine interest in collective action, says the lawyer.
Other suggestions include improving procedural rules and clarifying the regulation of third-party financing, which has only recently become the subject of formal oversight.
