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Urgent measures to combat delays in enforcement cases

The eleventh of January last saw the publication of Decree-Law 4/2013, which introduces a number of mechanisms to move proceedings along in enforcement actions with a view to bringing these cases to a speedier conclusion.

This legislation derives from the need to comply with the objectives set in the Troika Memorandum regarding enforcement actions.

In general, it aims (i) to prevent unviable actions from dragging on for years in the courts, (ii) to hold the enforcement claimant liable for his/her lack of action in the proceedings, and (iii) to improve progress in pending enforcement actions by means of greater use of electronic resources (brining added responsibility for enforcement officers).

1. Dismissal for want of seizeable assets in enforcement proceedings pre-dating 15 September 2003

The first measure in Decree-Law 4/2013 comes in Article 2 and is aimed at extinguishing enforcement claims which predate 15 September 2003 where the existence of seizable assets has not been proven.

It is important to point out that with regard to enforcement proceedings of this type, the enforcement claimant has 30 days after the legislation coming into force to identify seizeable assets, but if the assets identified are not found or if they belong to third parties, the claimant may be fined an amount to be set by the judge, which may vary from 0.5 to 5 units of account (the equivalent of between €51.0 and 510.00).

In this case, there will be no decision to dismiss the proceedings, but the clerk of the court will serve notice on the claimant, the defendant (if the summons has been served in person) and any creditors that have claimed credit rights.

2. Dismissal for want of action taken in the proceedings

Enforcement actions for payment of a fixed sum which have been awaiting action on the part of the claimant for over six months, or in which an agreement has been executed for payment of the enforceable amount in instalments and this agreement has been breached for more than 3 months without the claimant having issued any instructions to the enforcement officer to proceed with the action, will be dismissed.

As for the situation described in point 1 above, in enforcement claims filed prior to 15 September 2003, no dismissal decision will be made, but a notice will be issued by the clerk. The situation is different for actions filed after 15 September 2003 as in this case the dismissal will be communicated electronically by the enforcement officer to the court, which is then responsible for notifying the claimant, as well as the defendant and any notified creditors, if applicable.

3.  Dismissal for non-payment of the remuneration owed to the enforcement officer

Actions in which the claimant has not paid the amounts owed to the enforcement officer in respect of fees or expenses will also be dismissed.

To this end, the enforcement agent will serve notice on the claimant to settle the amounts owed within a period of 30 days and, if this is not done, the enforcement officer will have the power to have the case dismissed.

It should be noted that if no complaint has been made in respect of the amounts of the fees and expenses, these, along with proof that notice was served on the claimant, will constitute an enforceable instrument against the claimant.

4.  Reinstating the proceedings

Notwithstanding the dismissal in the above-mentioned cases, the lawmakers have left open the possibility of the claimant requesting that the proceedings be reinstated whenever seizeable assets are indicated (although he/she may be fined in the cases referred to in point 1) above.

5.  Restitution of amounts

When certain amounts are in the safekeeping of the enforcement officer and he/she is unable to identify the bank account to which these should be transferred, for reasons attributable to the claimant, such amounts will be considered to have reverted to the State.

6.  Commencement

Decree-Law 4/2013 comes into force on 26 January 2013 but will only have effect from the date of commencement of the new civil procedure rules, which is expected to be between July and September of this year.

João Neto Peixe

jp@acfa.pt