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Meet the Law | Law 4-A/2020 of April 6

New Rules on suspension of proceedings: Urgent proceedings are not suspended 
Non-urgent procedures are suspended unless the parties agree to proceed
Articles 7 and 8 of Law 1-A/2020 of March 19, 2020 were amended 
 

Below is an update to the Meet the Law published by CMS on March, 19, 2020, on the basis of such changes.
 
In a case currently litigated before the Portuguese Courts; classified by law as non-urgent; and in which the deadline to respond to a lawsuit has not expired but ends during the exceptional situation suspension period. Is such deadline deemed suspended?  
Yes, the deadline is deemed suspended. However, the Parties may disregard the exceptional situation suspension period ("Suspension Regime") when they have the conditions to ensure the practice of the upcoming procedural matters.
 
The parties may, and in our opinion should disregard the Suspension Regime when they have the conditions to ensure the practice of the upcoming procedural matters through electronic resources that would allow the continuation of the proceedings without disturbance. Examples of such electronic means for working remotely, are teleconferencing, video calling, and the like.    
 
A final decision may also be rendered during the Suspension Regime in cases where the Courts, and other entities with jurisdictional functions, do not consider it necessary to take further procedural steps to issue a ruling.
 
And in the case of an arbitral tribunals, are the time limits also suspended?
Yes. But in arbitration proceedings the Suspension Regime can also be disregarded ifthe Parties have the conditions to ensure the practice of the upcoming procedural matters, therefore, allowing the continuation of the proceedings.    
 
Are there more situations where the Suspension Regime should be applied?
Yes. The updated wording of the law has abandoned the expression "court holidays", and therefore established a proper regime for the procedural deadlines suspension, while granting the possibility of exclusion in the terms set out above.
 
Therefore, the Suspension Regime also applies to deadlines and procedural matters which run before Administrative and Tax Courts, the Constitutional Court, the Auditors Court, and other jurisdictional bodies. Similarly it is applicable to the Prosecutor's Office, Peace Courts, Alternative Dispute Resolution (ADR) entities, and tax enforcement bodies. Without prejudice to the possibility to disregard the Suspension Regime by the parties when they have the conditions to ensure the practice of the upcoming procedural matters.
 
In collection proceedings: sales, tender of creditors, judicial deliveries of real estate, and seizure procedures (including their preparatory acts), are also suspended.  There is an exception to the Suspension Regime, when the suspension causes serious damage to the livelihood of the plaintiff, or its irreparable harm. However, the decision on exceptions is subject to prior request, and a judicial decision must be rendered on a case by case basis.
 
And for how long does the Suspension Regime apply?
The Suspension Regime under these terms, applies until the exceptional situation of prevention, containment, mitigation and treatment of the epidemiological infection by SARS-Cov2 and COVID-19 disease has ceased. The date for cessation will be defined by decree, in which the termination of the exceptional situation will be declared.
 
Does the Suspension Regime provide for any measures with regards to statute of limitations and prescription periods?
Yes. The statute of limitations and prescription periods are suspended for all types of proceedings, due to the exceptionality of the current situation. This prevails over any regime which sets maximum mandatory limitation or prescription periods, which are extended by the time in which the exceptional situation applies.
 
And as for interim and precautionary measures; company revitalization processes; and/or insolvencies. Are there exceptions to the Suspension Regime?
Yes. As a rule, those cases are not suspended.
 
This legislation introduced profound changes to the rules initially imposed on deadlines and procedural matters.
 
If it had previously been understood that in urgent cases the deadlines were also suspended, albeit with certain exceptions, this law now establishes the opposite.
 
Urgent proceedings shall continue without suspension or interruption of deadlines and procedural matters, when the proceeding is possible to continue under the following circumstances:

  1. Carrying out proceedings that should be in person, such as hearings, by remote communication. Namely teleconferencing, video calling, or other equivalentmeans.
  2. Carrying out in-person proceedings in cases where the life, physical integrity, mental health, freedom or immediate subsistence of those involved is at stake and it is not possible to achieve them out by means of remote communication. As long as they do not involve the presence of more people than the number recommended by the health authorities, and in accordance with the guidelines laid down by the competent Superior Councils.
  3. Where it is neither possible nor appropriate to carry out procedural matters in accordance with the above subparagraphs, the suspension arrangements referred to in paragraph 1 shall also apply to such proceedings.

Only in the event of a situation of impossibility or inadequacy of the means provided for in 1 and 2, the general Suspension Regime should apply.
 
In addition to urgent proceedings as classified by the general law, such as Insolvency proceedings, the following shall also be considered as urgent proceedings:

  1. Proceedings relating to minors at risk or educational tutelary proceedings of an urgent nature;
  2. Proceedings and trials of arrested defendants;
  3. Proceedings to defend the rights, freedoms and guarantees injured and/or threatened with injury by any unconstitutional or illegal measures determined during the state of emergency;
  4. The urgent service provided for in paragraph 1 of Article 53 of Decree-Law No. 49/2014 of 27 March (referred to in the Code of Criminal Procedure, the law on International Judicial Cooperation in Criminal Matters, the law on Mental Health, the law on the Protection of Children and Youth in Danger, and the Legal Regime for Entry, Stay, Exit and Removal of Foreigners from National Territory).

I have a company in bankruptcy. Do I have to file for bankruptcy in 30 days?
You may do so. In any event, to avoid the legal consequences of late filing, the legislator has also suspended the debtor's time limit for filing for insolvency (30 days from the date of knowledge of the insolvency situation).
 
In the case of the trial of an arrested defendant, where fundamental rights are at stake, can the act take place in person?
Yes. In cases where the freedom of the parties is at stake, and the procedural matters cannot be achieved remotely, face-to-face procedures may be carried out, provided that they do not involve the presence of more persons than the number  in the recommendations of the health authorities, and in accordance with the guidelines laid down by the competent Superior Councils.
 
I am a party to a misdemeanor procedure before the Bank of Portugal ("Banco de Portugal"). Does the Suspension Regime rules also apply to my case?
Yes, these rules also apply, with the necessary adaptations to administrative, sanctioning and disciplinary proceedings, and the respective acts and proceedings, which run in direct, indirect, regional and local administration services, and other administrative entities. Namely independent administrative entities, including the Bank of Portugal and the Securities Market Commission.
 
I am to be evicted during the Suspension Regime. Does this decree have any rules to safeguard my case?
Yes, eviction proceedings, special eviction procedures and proceedings for delivery of leased property are suspended if the tenant, as a result of the final court decision to be rendered, may be placed in a situation of fragility due to lack of proper housing.
   
Is it possible to articulate this updated regulation with the previous one with regards to the counting of procedural deadlines and their suspension?  
Yes. Although the new amendments come into force on the day following the publication of the law, the provisions contained in article 7 above are retroactive to 09.03.2020, with the exception of the rules applicable to urgent cases, which only come into effect on the date this law comes into force, in order to safeguard the inactivity experienced in the past few days in the Portuguese courts and the non-practice of acts now considered urgent and thus not suspended. 

Authors

Nuno Pena
Partner
Lisbon
Miguel_PIna
Miguel Esperança Pina
Partner
Lisbon
Andrea Baptista
Associate
Lisbon