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Portuguese Court Rules on Jurisdiction for Injunctions and Precautionary Measures

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In a recent decision, the Portuguese Supreme Court has clarified the jurisdictional rules governing injunctions and precautionary measures in civil proceedings. This ruling provides guidance to lawyers and litigants navigating the complex web of jurisdictional requirements.

Jurisdiction for Injunctions

According to Article 78(1)(b) of the Code of Civil Procedure, the court with jurisdiction for an injunction prohibiting new works is the court of the place where the work is to be done. This means that if a party seeks to prevent construction or other activities from taking place in a specific location, they must file their application with the court having jurisdiction over that location.

Jurisdiction for Other Interim Proceedings

For other interim proceedings, such as those related to an ongoing action, the court with jurisdiction is the one before which the main action is brought (Article 78(1)(c) of the Code of Civil Procedure).

Mandatory Representation by a Lawyer

The Portuguese Supreme Court has also emphasized the importance of representation by a lawyer in cases involving precautionary measures. According to Articles 58 and 1090 of the Code of Civil Procedure, in conjunction with Article 44(1) of the Law on the Organisation of the Judicial System, lawyers are mandatory where:

The value of the measure exceeds €5,000
Appeals are admissible

Conditions for Ordering a Precautionary Measure

The court must establish that there is a risk associated with any delay and that the proceedings are actually or potentially dependent on an action brought or to be brought in respect of the right protected by the measure.

Additionally, the court must obtain prima facie evidence that:

There is a real likelihood that the right to be safeguarded exists
The fear of its being harmed is sufficiently justified

Effects of Precautionary Measures

Precautionary measures are binding on all public and private entities and take precedence over measures adopted by any other authority. Any person who infringes a precautionary measure ordered will incur the penalty for the offence of aggravated failure to comply with an official order (desobediência qualificada), notwithstanding any enforcement measures.

Conclusion

The Portuguese Supreme Court’s ruling provides important guidance on the jurisdictional rules governing injunctions and precautionary measures in civil proceedings. Lawyers and litigants navigating these complex legal issues will benefit from a clearer understanding of the court’s jurisdiction and the key conditions for ordering such measures.

Justice Portal
Directorate-General for Justice Policy
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Official Gazette of Portugal