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Legalisation of Public Documents within the EU Member States

PORTUGAL

National Rapporteur: Sofia de Abreu Ferreira

Researcher, European University Institute

PART I – Documents operating cross-border: Current legal practice as regards legalisation or other similar or equivalent requirements

OVERVIEW OF PART I PART I.A. General I.A.1. European Community Law

I.A.1.1. Introduction I.A.1.2. Implementation of specific measures

Area of Justice - judicial cooperation in civil matters (Article 61(c) EC) Article 19 of Regulation (EC) No 1346/2000 The execution of Regulation (EC) No 1346/2000 is dealt with in Title XIV of the Portuguese Insolvency Code (Código da Insolvência e da Recuperação de Empresas, Decreto-Lei nº 53/2004 de 18 de Março de 2004, in DR 66 Série I-A). Article 288 (1) of the Insolvency Code (on Recognition) establishes as a rule the recognition of foreign insolvency proceedings. This same Article foresees two exceptions, namely:

- Article 288 (1) (a): that the jurisdiction of the foreign Court/authority is not based on a relevant “connection element” as foreseen in Article 7 of that same Code (e.g. the place of the registered office);

- Article 288 (1) (b): that recognition leads to a result that is manifestly against the fundamental principles of the Portuguese legal order.

Article 290 (1) of the Insolvency Code (on Publicity) foresees that, if the requirements of Article 288 are observed:

- At the liquidator’s request, the Portuguese Court shall order, inter alia, that the foreign decision appointing the liquidator is made public;

- This publicity requirement is mandatory when the debtor has an establishment in Portugal, according to Article 290 (2).

- How? In accordance with Article 38 (2) (on Publicity and Registration), the decision appointing the liquidator has to be registered by the secretariat of one of the entities (depending on the characteristics of the debtor) mentioned in this Article (e.g., Conservatória do Registo Comercial). These entities will then

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follow the procedure and time frame (5 days) established in Article 38 (3-5). Also, this Court may ask for a certified translation of the decision appointing the liquidator according to Article 290 (1, in fine).

Article 4(4) of Regulation (EC) No 1348/2000 According to Art. 2 (1) and (2) of Reg. 1348/2000, every Member State designates the authorities competent for the cross boarder transmission of documents. Competent authorities: a) “Transmitting agencies” (entidades de origem) [Article 2 (1) Reg. 1348/2000]. Tribunal da Comarca (District Court) in the person of the Secretário de Justiça (Registrar). (Declaration made by Portugal pursuant Article 23, in JOCE C151 of 22.05.2001). b) “Receiving agencies” (entidades requeridas) [Art. 2 (2) Reg. 1348/2000]. Tribunal da Comarca (District Court) in the person of the Secretário de Justiça (Registrar). (Declaration made by Portugal pursuant Article 23, in JOCE C151 of 22.05.2001). NB: There are more than 200 Comarcas in Portugal (for asserting the competent Comarca see LOTJ (Lei 3/99 of 13.01.99 on the Organization and Functioning of the Judiciary) together with Decreto-Lei nº 186-A/99 of 31st May 1999 in DR 126, Série I-A). c) “Central Authority” ((Article 3, Regulation 1348/2000). Direcção Geral da Administração da Justiça (hereafter, DGAJ – Directorate-General for the Administration of Justice): http://www.mj.gov.pt/sections/o-ministerio/direccao-geral-da. (Declaration made by Portugal pursuant Article 23, in JOCE C151 of 22.05.2001). Procedure: a) General remarks: applicable law. If Regulation 1348/2000 (or any other EC or International legislation) would not be in force, the procedure for the transmission of cross-border judicial documents would follow the general rules of the Código de Processo Civil (hereafter, CPC – Civil Procedure Code), namely, Article 247 on the “notification of people residing in a foreign country”. However, these rules are supplementary since as Article 247 (1), CPC expressly states: when the notified person resides abroad, the rules to be followed are those of “international law” (lato sensu so, also, EC law) and, only in a case of non-existence of such rules could this Article apply. The jurisprudence corroborates the supplementary nature of Article 247, CPC vis-à-vis Regulation 1348/2000. In a ruling on the matter, the Court of Appeal of Porto [Tribunal da Relação do Porto, Proc. Nº 0430353, ID: JTRP00036788 (12.02.2004)] considered that the parties could not use Article 247, CPC in alternative to Articles 2 to 8, Regulation 1348/2000 (see Part II, 2 and 3 of the ruling). This Court based its interpretation on the supplementary nature of Article 247, CPC and on the principles of primacy of EC law and direct applicability of EC law which are foreseen in Article 8 of the Portuguese Constitution (hereafter, Article 8, CRP). The applicable law is, therefore, Regulation 1348/2000 (hereafter, the Regulation) as supplemented by the Portuguese Declaration pursuant Article 23 in JOCE C151 of

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22.05.2001 (hereafter, the Declaration). b) Procedure: Practical difficulties and solutions. Article 4 (1) of the Regulation consecrates the principle of direct transmission of judicial documents between the “transmitting agency” and the “receiving agency” in casu. For Portugal, these would be the district courts. However, due to practical difficulties, namely insofar as translations are concerned, the Portuguese “central authority” (DGAJ, see above) has requested that the transmission or reception of cross-border judicial documents be operated through the DGAJ. This practice was upheld by the abovementioned ruling. Incoming documents:

- Transmission, by registered post, of the judicial document to the DGAJ (Portuguese central authority);

- Accompanied by its respective translation into Portuguese or Spanish; - Accompanied by the formulary foreseen in Article 4 (3), of the Regulation, filled

in using Portuguese (official language) or, alternatively, Spanish. - The DGAJ then forwards everything to the Tribunal da Comarca competent to

perform the service (receiving agency). Outgoing documents:

- The Tribunal da Comarca competent to perform the service (transmitting agency) produces the judicial document and fills in the formulary of Article 4 (3), of the Regulation in Portuguese. Afterwards, it will forward the judicial document and formulary to the DGAJ (central authority);

- The DGAJ will translate the judicial document and formulary into the language(s) required by the foreign receiving authority;

- The DGAC will, then, transmit, by registered post, these to the foreign receiving authority.

[See Declaration made by Portugal (above) and circulares (internal administrative acts with no external legal effects) of DGAJ]. No further legalization requirements, in accordance to the administrative and judicial practice and Article 4 (4), Regulation 1348/2000. Consult, on these matters, the website of DGAJ (contents in Portuguese only): - http://www.mj.gov.pt/sections/o-ministerio/direccao-geral-da/Servicos-Juridicos-e-Coop-Internacional/Cooperacao-Judiciaria (last visited on February 2007).

Article 56 of Regulation (EC) No 44/2001 a) General remarks – applicable law. The Portuguese legal system establishes, as a supplementary rule, in Articles 1094 (1), CPC (Civil Procedure Code), the recognition and enforcement of foreign judgements via the exequatur, i.e., the formal revision of foreign judgements. The abovementioned Article expressly establishes its supplementary nature by stating that its application is “without prejudice of the applicability of… EC regulations”. Thus, Regulation 44/2001 derogates the rule of formal revision of the CPC (Articles 1094, ss).

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This has also been the understanding of the Portuguese Courts, namely the Supreme Court of Justice in Supremo Tribunal de Justiça, Proc. Nº 04A4283, ID: SJ200503030042831 (03.03.2005), where it held that “the rules of the Regulation prevail over the rules of the CPC” (part II, ruling STJ). Also, in this sense, the Court of Appeal of Porto [Tribunal da Relação do Porto, Proc. Nº 0632189, ID: RP200606080632189 (08.06.2006)], which considered that Regulation 44/2001 was directly applicable in accordance with EC law and the Portuguese Constitution (Art.8, CRP) and prevailed over the rules on international competence of Portuguese Courts and formal revision of foreign sentences of the Civil Procedure Code (Arts. 65, 65A, 99, 1094 and 1102, CPC). No need for further legalisation of the documents referred to in Article 53 (copy of a judgement in the sense of Article 32 and a certificate of Article 54), and Article 55 (2) (translation of the documents mentioned in Articles 53 or 55 (1)), or appointing a representative ad litem. The Appeal Court of Porto in Tribunal da Relação do Porto, Proc. Nº 0434423, ID: RP200409300434423 (30.09.2004), declared enforceable in Portugal a decision of an Italian Court (Prado), where the party seeking the enforceability declaration produced a certificate of the Italian judgment [Articles 53(2) and 54], the translation of that judgement [Article 55 (2)] and a document appointing a certificate ad litem without being asked for further formalities by that Portuguese Court. The STJ has declared enforceable a Belgium judgment (Court of Nivelles) upon the presentation of the documents mentioned in Article 53, Regulation 44/2001 [Supremo Tribunal de Justiça, Proc. Nº 05B1782, ID: SJ200509220017827 (22.09.2005)]. b) Competent authorities:

- Tribunal da Comarca (District Court) of the domicile of the party against whom the enforcement is sought, according to Article 39 and Annex II, Regulation 44/2001;

- Tribunal da Relação (Appeal Court), to decide on appeal from the decisions of the respective district courts, according to Article 43 (2) and Annex III, Regulation 44/2001.

(For asserting the competent Comarca or Relação see LOTJ (Lei 3/99 of 13.01.99 on the “Organization and Functioning of the Judiciary” together with Decreto-Lei nº 186-A/99 of 31st May 1999 in DR 126, Série I-A). c) Procedure:

- Article 40 (1), Regulation 44/2001 establishes that the procedure for making the application is governed by the law of the State in which enforcement is sought;

- In Portugal, the applicable law is the CPC (Civil Procedure Code); - The request could be made orally or in writing [simplest procedure to attain the

goal – Article 138, (1), CPC], in Portuguese as a general rule [Article 139 (1), CPC – see also Articles 139 (2) and 140 for interpreters and translations], in the competent district court [Article 149 (1)].

Article 57 of Regulation (EC) No 44/2001 Authentic instruments in civil and commercial matters which satisfy the conditions necessary to establish their authenticity are exempt from national legalization

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requirements. For such documents to be enforceable in Portugal, it is only necessary to follow the procedure of Article 38,ss of Regulation 44/2001. (See above “competent authorities” and “procedure” (Article 56). NB: Tribunal da Comarca may issue, on request, a certificate in accordance with Annex VI of Regulation 44/2001) The national case-law has been decided accordingly. An example of such practice is provided by the Supreme Court of Justice in Supremo Tribunal de Justiça, Proc. Nº 05B1547, ID: SJ200506160015477 (16.06.2005). In casu, a Portuguese citizen wanted to enforce in the STJ a German document declared enforceable by a German notary. The STJ ruled that, although such a document does not need to be formally revised by a Portuguese Court, its enforceability must, nevertheless, be requested (in casu, was not) to the competent Tribunal de Comarca, in accordance with Articles 57 and 38,ss of Regulation 44/2001.

Article 58 of Regulation (EC) No 44/2001 Court settlements in civil and commercial matters which satisfy the conditions necessary to establish their authenticity are exempt form national legalization requirements. (See above “competent authorities” and “procedure” (Article 56). NB: Tribunal da Comarca may issue, on request, a certificate in accordance with Annex V of Regulation 44/2001)

Article 46 Regulation (EC) No 2201/2003 “Authentic documents” and “private agreements” on matrimonial and parental responsibility matters and which are enforceable on one Member State are recognised and declared enforceable under the same conditions as “decisions” (see definition under Article 2(4) of this Regulation). NB: There is no available case-law on this Article. Some Portuguese doctrine, namely Professor Lima Pinheiro, consider that the recognition of similar effects as decisions to the acts foreseen in the abovementioned Article 46 as being highly criticisable. (See LIMA PINHEIRO, LUÍS, “O reconhecimento de decisões estrangeiras em matéria matrimonial e de responsabilidade paternal”, in ROA, Nº66, Vol. II, September 2006) a) Applicable law: General remarks. The Portuguese legal system establishes, as a supplementary rule, in Articles 1094 (1), CPC (Civil Procedure Code), the recognition and enforcement of foreign judgements via the exequatur, i.e., the formal revision of foreign judgements. The abovementioned Article expressly establishes its supplementary nature by stating that its application is “without prejudice of the applicability of… EC regulations”. Thus, Regulation 2201/2003 derogates the rule of formal revision of the CPC (Articles 1094, ss). Although, there is no available case-law on this Regulation. There are some rulings on Regulation 1347/2000, its predecessor, which point out to the direct applicability of that regulation and, as a consequence, the derogation of the supplementary rules of the CPC (Tribunal da Relação de Coimbra, Proc. Nº 1892/04, 26.10.2004). The direct applicability of Regulation 2201/2003 without an execution law, as well as, in general, its regime have been criticized by, inter alia, Lima Pinheiro (see above).

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b) Competent authorities:

- Requests under Article 21, Regulation 2201/2003 (the Regulation) – Tribunal da Comarca (District Court);

- Requests under Article 29, the Regulation –Tribunal de Família e de Menores (Family and Minors Court) or, if does not exist one in that jurisdiction, the Tribunal da Comarca (District Court) of the usual residence of the party against whom the enforcement is sought or of the usual residence of the child;

- Requests under Article 33, Regulation – Tribunal da Relação (Appeal Court); - Appeals of the abovementioned requests (Article 39, Regulation) – STJ

(Supreme Court of Justice) – restricted to issues of law. (Communication of Portugal pursuant to Article 68, Regulation 2201/2003, in JOCE C40 of 17.02.2005) (For asserting the competent Comarca, Tribunal de Família or Relação see LOTJ (Lei 3/99 of 13.01.99 on the “Organization and Functioning of the Judiciary” together with Decreto-Lei nº 186-A/99 of 31st May 1999 in DR 126, Série I-A). c) Procedure:

- The request could be made orally or in writing [simplest procedure to attain the goal – Article 138, (1), CPC], in Portuguese as a general rule [Article 139 (1), CPC – see also Articles 139 (2) and 140, CPC for interpreters and translations], in the competent district court or family court [Article 149 (1), CPC together with Annex to Regulation 2201/2003].

- Compulsory documents: “Annex I-IV” (of Regulation 2201/2003) certificates and copy (no need to be a certified one) of the judgement or of documents mentioned in Article 46, Regulation. Plus, a certified copy or the original document(s) attesting the citation or notification of the other party and its unequivocal acceptance of the judgement (see www.redecivil.mj.pt);

- Optional documents: certified translation of the abovementioned documents.

Article 52 of Regulation (EC) No 2201/2003 Documents referred to in Articles 37, 38 and 45, Regulation which concern the enforcement of judgments in matrimonial matters or in matters concerning parental responsibility as well as documents appointing a representative ad litem are exempt of national legalization requirements or other similar or equivalent requirements. (See above Article 46, Regulation 2201/2003 for details on applicable law, competent authorities and procedure)

Article 52 Regulation (EC) No 2201/2003, certificates drawn up in the standard forms of ANNEX I (Article 39), II (Article 39), III (Article 41) or IV (Article 42) Documents certifying the authenticity of judgments, authentic instruments and agreements between parties in matrimonial matters or matters concerning parental responsibility are exempt of national legalization requirements or other similar requirements Competent authorities to issue Annex I-IV certificates:

- Tribunal da Comarca (District Court) where the case is pending (Annex I). - Tribunal de Família e de Menores (Family and Minors Court) or, if does not

exist one in that jurisdiction, the Tribunal da Comarca (District Court) where

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the case is pending (Annex II-IV).

Article 27 of Regulation (EC) No 805/2004 Portuguese jurisprudence seems to accord the possibility to opt for the regime of Regulation 805/2004 instead of that of Regulation 44/2001 (in the cases foreseen in the first of these Regulations), in accordance with Article 27, Regulation 805/2004 (henceforth, “Regulation”). The Supreme Court of Justice hinted at this possibility in Supremo Tribunal de Justiça, Proc. Nº: 05B1547, ID: SJ200506160015477 (16.06.2005) where it applied Regulation 44/2001 to an extrajudicial document which had been declared enforceable in Germany because although it fell under the scope of application of Regulation 805/2005, this piece of legislation was not yet in force (only October 2005). To sum up, an enforcement declaration from a Portuguese court was still necessary.

ANNEXES I (Article 9 - judgments), II (Article 24 – court settlements) and III (Article 25 – authentic instruments) of Regulation (EC) No 805/2004

a) Applicable law: Regulation 805/2004 derogates from the general rule of formal revision of foreign enforcement orders based on court settlements or judicial proceedings (no such rule for authentic instruments) established in Article 49, CPC. Articles 20 (1), 24 (3) and 25 (3) of Regulation 805/2004 establishes that the applicable law for the enforcement is that of the Member State of enforcement together with the provisions of Chapter IV. The national applicable law is, with the necessary adaptations (e.g. derogation of Article 49, CPC), Articles 45-ss and 465-ss of the CPC. Competent authorities: The creditor shall promote the enforcement of a foreign judgment or court settlement or authentic document against the debtor (Article 55, CPC) in the local court where the debtor is domiciled or where the assets are located, Articles 94 (1) (3) and (4) and 95, CPC. Competent authority (authentic document): The competent authorities to certify such document as an enforceable order are the notaries (Article 50, CPC and Declaration made by Portugal pursuant Article 25 (1), Regulation 805/2004). The documents to be provided to the competent enforcement authorities (courts) are a copy of the judgment (Article 20 (2), Regulation), a copy of the European Enforcement Order (Article 9, 24 and 25 of the Regulation and Annex I, II or III depending whether it is a judgment, court settlement or an authentic instrument, respectively) and a certified translation by a notary into Portuguese of the European Enforcement Order (Article 20 (2, c), Regulation in conjunction with Article 140, CPC and Declaration made by Portugal). No further legalization requirements.

Article 13(5) of Directive 2002/8/EC a) Applicable law: Directive 2002/8/EC is implemented in the Portuguese legal order through means of Lei Nº34/2004 of 29.07.2004 in DR I-Série A, Nº 177 and Decreto-lei 71/2005 of 17.03.2005 in DR Série I-A, Nº54

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b) Transmitting and Receiving authorities: - Instituto da Segurança Social (hereafter, ISS, Institute for Social Security) for

continental Portugal – Article 6 (1) (a), DL 71/2005; - Centro da Acção Social (Centre for Social Action) for Madeira Archipelago –

Article 6 (1) (b), DL 71/2005; - Instituto da Acção Social (Institute for Social Action) for Azores Archipelago –

Article 6 (1) (c), DL 71/2005. - Appeal: District Court where the action is pending [Article 26 (1) Lei 34/2004

and Article 10 (2), DL 71/2005]; c) Procedure – incoming requests:

- The request for legal aid to be accorded in Portugal is regulated by the general law on legal aid, i.e., Lei 34/2004 (Article 3, DL 71/2005);

- Means: via registered post or electronically [Article 22 (3), Lei 34/2004]. - The request for legal aid can be made in Portuguese or English [Article 7 (1),

DL 71/2005]; - The documents supporting the request have to be translated into the official

language or any other accepted language of the receiving state [Article 8 (2), DL 71/2005];

- Supporting documents [see http://www.redecivil.mj.pt/Ap%20Jud.htm (last visited February 2007)];

- The request should be made using the standard form that is distributed free of charge by the receiving authority in loco or online (http://www.seg-social.pt/) [Article 22 (2), Lei 34/2004].

d) Procedure – outgoing requests:

- The request can be made in Portuguese (transmitting authority may, then, translate it), or in the official language or any other accepted language of the receiving Member State [Article 7 (2) and (3), DL 71/2005];

- The documents supporting the request have to be translated into the official language or any other accepted language of the receiving state [Article 8 (2), DL 71/2005];

- If they are not duly accompanied by the translation referred to above, the competent authority for transmitting the documents (above) will see that the translation is made [Article 8 (3), DL 71/2005].

NB: Article 8 (on Documents) of DL 71/2005 expressly stipulates that the documents to be annexed to the request for legal aid shall be exempted from national legalization requirements.

Free movement of goods (Article 23 EC) Article 250 of Regulation (EEC) No 2913/92 This Article is duly applicable to the free movement of goods. (http://www.dgaiec.min-financas.pt/sitedgaiecinternet/index.html, last visited February 2007)

Free movement of workers - social security (Article 42 EC) Article 85 Regulation (EEC) No 1408/71 read in conjunction with Regulation (EEC) No 574/72 Its application is in line with the free movement of workers.

I.A.1.3. Judicial control

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See the above sections. I.A.2. Hague Convention of 5 October 1961 (the ‘Apostille’ Convention)

I.A.2.1. Status The Hague Convention was approved for ratification in Portugal by Decreto-Lei n.º 48450, published in Diário do Governo n.º 148, I Série, on 24/06/1968. The ratification document was deposited on 06/12/1968 and the Convention entered into force in Portugal on 04/02/1969.

I.A.2.2. Scope Geographical Scope Andorra, Albania, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahamas, Barbados, Belarus, Belize, Bosnia, Botswana, Bulgaria, Brunei Darussalam, Colombia, Cook Islands, Croatia, Cyprus, Czech Republic, Denmark, Dominica, Ecuador, El Salvador, Estonia, Fiji, Finland, FYROM, France, Germany, Greece, Grenada, Honduras, Hong Kong (administrative region), Hungary, Iceland, Ireland, India, Israel, Italy, Japan, Kazakhstan, Latvia, Lesotho, Liberia, Lichtenstein, Lithuania, Luxembourg, Macau (administrative region)*, Malawi, Malta, Marshall Islands, Mauritius, Mexico, Monaco, Montenegro, Namibia, Netherlands, New Zealand, NIUE, Norway, Panama, Poland, Romania, Russia, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Samoa, San Marino, Serbia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Suriname, Swaziland, Sweden, Switzerland, Trinidad e Tobago, Turkey, Turkmenistan, Ukraine, UK, US, Venezuela. * See Aviso nº 100/2000, publicado no DR nº 81, série I – A, de 05.04.2000 (update related to the transfer of Macau from Portugal to China). Material Scope No changes on the material scope have been introduced by the legislator, the competent authorities or the judiciary. See Article 1, Apostile Convention and http://www.pgr.pt/ (last visited February 2007).

I.A.2.3. Legislative implementation The implementation of the Convention was made by publication of the original text together with its translation in Portuguese on the Official Gazette (which was the so called “Diário do Governo” at that time and since 1974, “Diário da República”) following its ratification by the Parliament. Therefore, apart from the ratification, no specific or relevant legislative acts were produced.

I.A.2.4. Practical implementation Procedure and practical information:

- The Apostille can only be requested in person. - Information can be requested by post, fax and e-mail. - The competent authority (see below) and, more concretely, its Secção de

Expediente Geral e Arquivo da Unidade de Administração de Processos verifies the authenticity of the signature, the capacity and the identity of the seal or stamp of the document through the central data base of the PGR or by contacting directly the relevant entity that issued the document (when no information is available on the central data base).

- The Apostille is placed in an Allonge (attached to the document). When the document consists of multiple pages, the white stamp together with the signature of the Procurador da República is also placed on the first page of the said document.

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- The Portuguese and the French are both used in the Apostille. - The system used for the issuance of the Apostille is mechanical. No specific

measures are used to avoid fraud. Some measures are currently being studied in order to modernize the system, namely in order to allow the Apostille being issued by electronic means.

- The total process generally takes 24-48 hours and no fee is payable for the issuance of an Apostille.

- Regarding the registration or card index requirement referred to in Article 7 of the Convention, the current system is mechanical and it can be consulted locally on demand.

Competent authorities (Article 3, Apostille Convention): (Communication by the Portuguese Government published in Diário do Governo, n.º 78, I série, of 02.02.1969)

a) Procuradoria Geral da República (PGR, Lisbon) - Address: Rua da Escola Politécnica, nº140 1269-269 Lisbon Portugal - Telephone: +351 213 921 900/99 - Fax: +351 213 975 255 b) Serviços da Procuradoria-Geral da República junto do Tribunal da Relação de

Coimbra (Coimbra) - Address: Palácio da Justiça - Rua da Sofia 3004–501 Coimbra - Telephone: +351 239 852 950 - Fax: +351 239 883 985 c) Serviços da Pro Serviços da Procuradoria-Geral da República junto do Tribunal

da Relação de Évora (Évora) - Address: Largo das Alterações, n.º 1 7004–501 Évora Portugal - Telephone: +351 266 758 800/9 - Fax: +351 266 701 529 d) Serviços da Procuradoria-Geral da República junto do Tribunal da Relação do

Porto (Porto) - Address: Campo Mártires da Pátria 4049–012 Porto Portugal - Telephone: +351 222 008 531 - Fax: +351 222 000 715 e) Serviços da Procuradoria da República junto do Tribunal Judicial (Madeira

Autonomous Region) - Address: Rua Marquês do Funchal 9004-548 Funchal Portugal - Telephone: +351 291 213 442 - Fax: +351 291 233 015 f) Serviços da Procuradoria da República junto do Círculo Judicial (Azores

Autonomous Region) - Address: Rua Conselheiro Luís Bettencourt 9500-058 Ponta Delgada Portugal - Telephone: +351 296 209 460 - Fax: +351 296 283 494

I.A.2.5. Judicial control

There is no specific case law regarding the functioning of the Convention in Portugal. There is, however, a Legal Opinion of Direcção Geral dos Serviços e Notariado (Directorate General of the Notary Services). In this Opinion, these services were asked to interpret Articles 2-5 of the Apostille Convention to assess whether the exemption of further legalisation requirements established in this Convention also applied to the translation of the foreign public document. These services considered that the translation to Portuguese of a foreign public document is not a legalisation requirement and, thus,

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can be required. (Available at http://www.dgrn.mj.pt/brn-2002/brn_dez02/brn_principal_dez02.pdf, pp.15-ss, in Portuguese only, last visited February 2007).

I.A.2.6. Empirical analysis The functioning of the Hague Convention does not cause any kind of difficulties or problems in Portugal. On the contrary, it is regarded as the most secure way for documents’ legalisation. I.A.3. Parallel international agreements

I.A.3.1. Status Portugal is a party to:

1) The 1968 Council of Europe Convention for Abolition of Legalisation of Documents Executed by Diplomatic Agents or Consular Officers (Nº63):

- Approved for ratification by Decreto Nº 99/82 of 26.08.1982 and published in Aviso, DR 15/83, Série I of 19.01.1983.

- Entered into force in Portugal in 14.03.1983. 2) The 1987 Brussels Convention abolishing the Legalisation of Documents in the

Member States of the European Communities. - signed by Portugal on 25.05.1987 but not yet ratified;

3) Other (bilateral) agreements: Third States: a) Acordo de Cooperação Judiciária entre a República Portuguesa e a República de Angola (Judicial Cooperation Agreement between Portugal and Angola) - Approved for ratification by Resolução da AR nº11/97 of 04.03.1997 and

published in Aviso nº582/2006, DR 91, Série I-A of 11.05.2006. - Entered into force in Portugal in 05.05.2006. b) Acordo de Cooperação Jurídica e Judiciária entre a República Portuguesa e a República de Cabo Verde (Judicial and Juridical Cooperation Agreement between Portugal and Cabo Verde) - Approved for ratification by Resolução da AR nº6/2005 of 09.12.2004. - Not yet in force. c) Acordo de Cooperação Jurídica entre a República Portuguesa e a República da Guiné-Bissau (Juridical Cooperation Agreement between Portugal and Guiné-Bissau) - Approved for ratification by Resolução da AR nº11/89 of 19.05.1989 and

published in Aviso nº63/1994, DR 144, Série I-A of 11.02.1994. - Entered into force in Portugal on 05.05.2006. d) Acordo de Cooperação Jurídica e Judiciária entre a República Portuguesa e a República de Moçambique (Judicial Cooperation Agreement between Portugal and Mozambique) - Approved for ratification by Resolução da AR nº7/91 of 13.02.1991 and

published in Aviso nº71/1996, DR 51/96, Série I-A of 29.02.1996. - Entered into force in Portugal on 22.02.1996. e) Acordo de Cooperação Judiciária entre a República Portuguesa e a República de

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São Tomé e Principe (Judicial Cooperation Agreement between Portugal and São Tomé e Principe) - Approved for ratification by Decreto Nº 550-M/76 of 12.07.1976 and published in

Aviso, DR213 of 14.09.1979. - Additional Protocol to the Judicial Cooperation Agreement - Approved by Decreto Nº 51/98 of 30.12 and published in Aviso Nº 6182, DR 81,

2a Série of 05.04.2000. - Both the Agreement and the Additional Protocol entered into force in Portugal on

21.02.2000.

f) Acordo de Cooperação Jurídica e Judiciária entre a República Portuguesa e Macau (Judicial and Juridical Cooperation Agreement between Portugal and Macau) - Approved for ratification by Resolução da AR nº19/2002. - Entered into force in Portugal on 02.05.2002 (Aviso Nº110/2002of 06.12.2002).

Member States of the EU: a)Convention on Judicial Cooperation for the Protection of Minors (Lisbon, 20.07.1983)

- Parties: France and Portugal - Approved for ratification by Resolução da AR nº1/84 of 03.02.1984. - Entered into force in Portugal on 01.10.1984 (Aviso Nº216/84, Série I of

17.09.1984). - Central authorities in Portugal: Directorate General for the Protection of Minors

(Article 2); - Each authority uses its language accompanied with translation for cooperation

requests related to minors or their assets (Article 5); - The public acts of each State are exempted from apostille and legalisation

(Article 25) b)Convention on Judicial Cooperation on the in Civil and Criminal Matters (Madrid, 19.11.1997)

- Parties: Portugal and Spain; - Approved for ratification by Decreto Nº nº14/98 of 27.05.1998. - Entered into force in Portugal on 19.12.1998 (Aviso Nº274/98, DR 279 Série I of

03.12.1998). - Cooperation requests between the authorities of Portugal and Spain can be

made in either Portuguese or Spanish (no translation needed – Article 1) and the relevant documents are exempted from apostille or legalisation (Article 2).

c) Convention providing a Uniform Law on the Form of an International Will (Washington. D.C., 26 October 1973)

- Parties: Belgium, Bosnia-Herzegovina, Canada, Cyprus, Ecuador, France, Italy, Niger, Portugal, Slovenia, ex-Yugoslavia,

- Approved for ratification by Decreto Nº252/75 of 23.05; - Entered into force in Portugal on 09.02.1978 (Aviso, DR Série I-A, Nº219 of

21.09.1977); - Competent authorities: notaries and consular services (Decreto-Lei 177/79 of

07.06); - Wills: The signature of the testator, of the authorized person, and of the

witnesses to an international will, whether on the will or on the certificate, shall be exempt from any legalization or like formality (Article 6)

4) Agreements abolishing legalisation requirements for categories of documents

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relating to a specific subject matter:

a) The IX Hague Convention concerning the Recognition and Enforcement of Decisions Relating to Maintenance Obligations towards Children (1958).

- Approved by Portugal for ratification by Decreto-Lei Nº 246/71 of 03.06.1971 and published in Aviso, Diário de Governo of 22.01.1974.

- Entered into force in Portugal on 24.02.1974.

b) The XIV Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (1969).

- Approved by Portugal for ratification by Decreto-Lei Nº 270/71 of 18.05.1971 and published in Aviso, Diário de Governo of 22.01.1974.

- Entered into force in Portugal on 24.01.1974.

c) The XX Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (1972).

- Approved by Portugal for ratification by Decreto Nº 764/74 of 30.12.1974 and published in Aviso, Diário de Governo of 08.04.1975.

- Entered into force in Portugal on 11.05.1975.

d) The XXI Hague Convention concerning the International Administration of the Estates of Deceased Persons (1973).

- Approved by Portugal for ratification by Decreto Nº 734/75 of 23.12.1975. - Entered into force in Portugal on 11.07.1993.

e) The XXVIII Hague Convention on Civil Aspects of International Child

Abduction (1980); - Approved by Portugal for ratification by Decreto do Governo Nº 733/83 of

11.05.1983 and published in Aviso, DR I Série, Nº 254 of 04.11.1983. - Entered into force in Portugal on 01.12.1983.

f) The XXXIV Hague Convention on Jurisdiction, Applicable Law,

Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (2002).

- Portugal signed this Convention on 01.04.2003 but it is not yet a Party to it (did not ratify it).

[Information available at http://www.gddc.pt/cooperacao/cooperacao.html (last visited February 2007)]

I.A.3.2. Scope 1) The 1968 Council of Europe Convention for Abolition of Legalisation of Documents Executed by Diplomatic Agents or Consular Officers (Nº63): Geographical Scope: Austria, Cyprus, Czech Republic, France, Germany, Greece, Ireland, Italy, Liechtenstein, Luxemburg, Holland, Norway, Poland, Spain, Sweden, Switzerland, Turkey and UK. Material Scope: No changes. 2) Not applicable (see above I.A.3.1). 3) Bilateral agreements (see above I.A.3.1).

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4) The Hague Conventions (see above I. A.3.1.) No changes in the material or geographical scope. There is no specific rule regarding precedence of agreements in force in Portugal. The applicability of a specific agreement depends basically upon the material scope of the said agreement and of its geographical scope. In several cases, the court decisions consider more than one of these agreements as applicable to the situation concerned.

I.A.3.3. Legislative implementation The legislative implementation of agreements (acordos and tratados) is made by:

- Its approval for ratification by the President of the Republic (P.R. – Article 134 (b), Portuguese Constitution) or, by the Parliament (A.R. – most common of cases – Article 161 (i), Constitution) or, by the Government (Article 197 (c), Constitution);

- Followed by ratification of the P.R. (Article 135 (b), Constitution); - And by publication of the said agreement together with its Portuguese version

(translation) in the Official Gazette (“Diário da República”).

I.A.3.4. Practical implementation Competent Authorities [The Hague Conventions (4, above I.A.3.1)]: The IX Hague Convention concerning the Recognition and Enforcement of Decisions Relating to Maintenance Obligations towards Children (1958).

- Judge of the Family Court (“Tribunal de Família e Menores”) of the child’s domicile.

- For recognition and execution of foreign judgements or court decisions the competent authority is, instead, the Court of Appeal of the judicial district of the person against whom the judgement or decision is to be enforced.

- (In Declaration made by Portugal pursuant Article 13 of the abovementioned Convention)

The XIV Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (1969).

- Central authority (Article 2 (1)): Direcção-Geral dos Serviços Judiciários (DGSJ – Directorate General for the Judicial Services)

- Address: Av. 5 de Outubro, n.º 125 1069-044 Lisbon Portugal - Telephone: 00 351 217 906 210/11/12/13/23 - Fax: 00 351 217 906 229 - Authority competent to issue “Article 6 certificate”: escrivães de direito e os

oficiais de justiça.

The XX Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (1972).

- Direcção-Geral dos Serviços Judiciários do Ministério da Justiça (Directorate General of the Judicial Services of the Ministry of Justice)

- (In Declaration made pursuant Articles 2 and 15 of the abovementioned Convention published in Aviso, DR 122 of 26.05.1984).

The XXI Hague Convention concerning the International Administration of the Estates of Deceased Persons (1973).

- Article 5: Procurador Geral da República; - Article 6 (1): the judge of the procedure or a notary;

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- (In Aviso, DR Nº177 of 01.08.1996). The XXVIII Hague Convention on Civil Aspects of International Child Abduction (1980);

- Instituto de Reinserção Social (Institute for Social Reinsertion) - Address: Av. Almirante Reis, n.º 101, 7º 1197 Lisbon Portugal - Telephone: 00 351 213 176 100 - Fax: 00 351 213 176 171 - (In Aviso nº287/95, DR Nº230, I Série A of 04.10.1995).

I.A.3.5. Judicial control See annexed cases.

I.A.4. National Law

I.A.4.1. Legislative framework a) Incoming documents:

In situations falling outside of the scope of Community law, the Apostille Convention or other relevant international agreements, the applicable (subsidiary) law for legalisation of foreign documents is the Portuguese Civil Code and the Civil Procedure Code. As a rule, according to Article 365 of the Portuguese Civil Code (hereafter, CC), legalisation of documents is not required unless doubts regarding validity of the relevant document arise. Article 365, CC “1. The foreign authentic or private documents, in conformity with the law of the country of origin, make proof as Portuguese equivalent documents. 2. If the document is not legalised, in accordance with procedural law, and there are valid doubts as to its authenticity or the authenticity of its recognition, its legalisation may be required.” Legalisation requirements for authentic and private foreign documents are established in (1) and (2) of Article 540 of the Portuguese Civil Procedure Code (CPC), respectively.

- Material scope: authentic and private documents; - Geographical scope: all foreign countries (not under the scope of Community law

or relevant International law) - Competent authority: Portuguese Consulates; - Procedure: recognition of the document by the competent Portuguese Consulate’

services and authenticated with the respective consular white stamp. - Costs of legalization: not available a general “table of costs” for all countries (e.g.

between 11 to 25 euros per document (approx.) for Brazil. Information available at:

(http://www.embaixadadeportugal.org.br/assuconsul/emolumentos.php). Article 540, CPC “1. Foreign authentic documents, in conformity with the law of the country of origin, will be deemed legalised if the signature of the foreign public authority is recognized by a Portuguese diplomatic or consular agent in that State and this agent’s signature is authenticated by the respective consular white stamp. 2. If the foreign private document is legalised by a foreign public officer, the legalisation lacks legal value if the abovementioned (nº1) legalisation requirements are not fulfilled.”

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b) Outgoing documents:

Portuguese documents may also be legalised. In situations falling outside of the scope of Community law, the Apostille Convention or other relevant international agreements, the competent authorities for legalisation of national documents abroad are the Portuguese Consulates ( of the residence or domicile of the person requesting the legalisation), in accordance with Regulamento Consular, DL nº381/97, in DR 300/97, Série I-A, of 30.12.1997. For information on the location of Portuguese consulates and their procedure please consult http://secomunidades.pt/ .

I.A.4.2. Scope See above I.A.4.1.

I.A.4.3. Practical implementation See above I.A.4.1.

I.A.4.4. Judicial control See annexed cases. PART I.B. Specific I.B.1. Introduction. Documents regarding personal status (birth, death, etc). a) Relevant International law: Portugal is a party to several Conventions of the CIEC (Commission Internationale de l’Etat Civil). Namely, Conventions Nº 1-5, 10, 16, 17, 19 and 20 have been ratified by Portugal and are already in force (information available at http://www.ciec1.org/index.htm, last visited February 2007). Example:

- Extracts from civil status records concerning births, marriages and deaths. Convention Nº1 is applicable. This legal instrument provides for specific forms for drawing up the abovementioned certificates when translation is required (Article 1) which have the same evidential value as those issued in accordance with national law. No further legalisation required (Article 5).

- Exemption from legalisation of civil extracts records (birth, acknowledgement of natural children, marriages, deaths, divorces, etc). Convention Nº2 is applicable. A diplomatic mission of a contracting State (Germany, Belgium, Luxembourg, Netherlands, Austria, Italy, etc) may request the Conservatória do Registo Civil (Article 2 and Annex) to issue free of charge the abovementioned extracts for official purposes or on behalf of poor people (Article 1).

- Exchange of information relating to civil status (marriage or death). Convention Nº3 is applicable. The Conservatória do Registo Civil that transcribes a record of a marriage or death of a citizen of another contracting party (Germany, Belgium, France, Spain, Italy, etc) must give notice (specific form under the Convention) of the fact to the relevant civil register (Article 1). The issue of a copy of civil status records by the Portuguese registers shall be exempt from legalisation in another contracting party (Article 4).

- Declaration acknowledging natural children Convention Nº5 applies. Certified copies of instruments embodying a declaration

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for acknowledgment of natural children originating from a contracting party (Germany, Belgium, France, Greece, Spain, Luxembourg, Netherlands, Italy, etc) shall be exempt from legalisation requirements (Article 5).

- Exemption from legalisation of documents regarding the civil status, capacity, marriage or family relationships, domicile, etc (Article 2) Convention Nº17 applies. Contracting Parties: Germany, Austria, Belgium, France, Greece, Spain, Luxembourg, Netherlands, Italy, Poland, etc.

b) National law. All the facts relating to personal status, such as birth, death, marriage, recognition of a natural child, and family relationship for Portuguese citizens (i.e., citizens born in Portugal, children of a Portuguese citizen or citizens who have been granted Portuguese citizenship) have to be registered in the “Conservatória do Registo Civil” (Civil Register) of the individual’s domicile, in accordance with the Articles 1 and 8 of the “Código do Registo Civil” (CRegC) approved by “Decreto-Lei” n. 131/95, of June 6th, with the modifications introduced by Decretos-Lei n. 36/97, of January 31st, 120/98, of May 8th, 375-A/99 of September 20th , 228/2001 of August 20th, and 273/2001 of October 13th. Facts relating to the personal status of a Portuguese citizen abroad will be registered in the Portuguese consular services (Articles 5 and 9, CRegC) and then integrated in the books of the competent Conservatória do Registo Civil (Article 5, CRegC). These facts are proved by a certificate. The events relating to the personal status of a foreign citizen which occur in the national territory will likewise be compulsory registered (Articles 1 (2) and 10 (1), CRegCiv). Facts passive of register and relating to the personal status are to be proved by certificate, bulletin or ID (Article 211, CRegC). These records are treated as conclusive evidence (Article 3 (1), CRegC) only passive of being rebutted by the initiation of judicial proceedings. Foreign documents relating to personal status, in conformity will local law, may serve as a basis for a register, independently of previous legalisation, when there are no serious doubts as to its authenticity (Article 49 (1), CRegC. Also, see Article 44, Notary Code). However, when written in a foreign language, they must be certified by a notary or by the conservador and observe the formalities of the Notary Code (Articles 46 and 47 of the Notary Code stipulate that the foreign document should mention certain elements, such as, for example, the full name of the intervenient). However, as a rule, foreign documents do not require any legalisation and are considered equivalent to Portuguese authentic documents (Article 365 (1), CC). Only when there are serious doubts about its authenticity may legalisation be required (Article 365 (2), CC and 540, CPC – see above). I.B.2. Specific documents 1. Documents proving involuntary unemployment

Applicable law:

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The Directive 2004/38 on the right of citizens of the Union to move and reside freely within the Member States has been recently transposed into Portuguese law by Law 37/2006 of August 9th (published in “Diário da República”, I Série A, n.º 153 on August 9th 2006). Involuntary employment rules only apply to EU citizens that fulfil the requirements of Articles 7 (3) (b) and 14, Law 37/2006. I.e., these EU citizens must reside lawfully** in Portugal and be registered in the IEFP (below). **Reside lawfully in Portugal implies, as stated in Article 14, Law 37/2006:

- registration in the municipality of the area of residence (nº2); - no later than 30 days after a period of residence of 3 months in Portugal (nº1); - In loco, a certificate of registration will be issued attesting the name, address and

date of registration of the EU citizen (nº3) in accordance with the model of Portaria 1637/2006 of 17 October (Costs: 7 euro (first time) or 7,5 euro (subsequent times);

- This certificate will be valid for a period of 5 years or, alternatively, for the period of residence (if less) (nº4);

- Documents needed: valid ID or valid passport, as well as, a solemn declaration stating that the individual fulfils the conditions of Article 7 (1), Lei 37/2006 (in casu) (nº5).

Competent authority (Article 7 (3) (b), Law 37/2006): Involuntary unemployment will be registered in Instituto do Emprego e Formação Profissional (hereafter, IEFP, Institute for Employment and Professional Education). Central Services (info): Av. José Malhoa, 11 1099-018 Lisboa Portugal Tel: 21 861 41 00 Fax: 21 722 70 13 Procedure for registering in IEFP as an involuntary unemployed worker (Article 72 (2), DL 220/2006, cf. below):

On-line (http://www.netemprego.gov.pt/IEFP/index.jsp) or in the Centro de Emprego of the area of residence of the unemployed worker. No further formalities needed.

Procedure for requiring unemployment benefits: Notion of involuntary unemployment: Article 9, DL Nº220/2006 (on the protection of unemployment) of 03.11.2006 in DR Série I-A Nº212. Holder of the right to unemployment benefits:

- Inter alia, foreign workers in involuntary unemployment (see above Article 9, DL 220/2006) which hold a valid residence title (cf. above, Article 14, Law 37/2006) according to Article 8 (2), DL 220/2006;

Deadline to require unemployment benefits:

- Within 90 days of involuntary unemployment (Article 72 (1), DL 220/2006). Procedure and documents needed (Article 72 and 73, DL 220/2006):

- Registration in the IEFP (above); - Formulary of the Social Security Services (on-line or in loco) requesting

unemployment benefits;

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- Declaration by the employer attesting that the beneficiary has been dismissed in the form provided by the Social Security Services and when (upon agreement of the beneficiary, the employer may fill in a formulary available on-line at the Social Security Services website);

- Communication of the Employment Centre of the beneficiary’s residence to the competent Social Security Services with the relevant data referring to the beneficiary (Article 79, DL 220/2006 and Article 20, Portaria º8-B/2007 of 3.01.2007 in DR Nº2, Série I-A);

- Copy of the communication given to the Employer or documents providing proof that judiciary proceeding has been initiated, as the case may be (Article 9 (2) and (5), DL 220/2006;

- For Social Unemployment Benefits (only): documents proving the financial resources of the family members (e.g., tax documents or receipts): Article 76, DL 220/2006;

- For Partial Unemployment Benefits (only): Copy of the Employment Agreement (to be delivered within 90 days from the beginning of the partial work activity).

No further formalities required for EU citizens legally residing in Portugal. It is explicitly established in Article 9 of the General Law of Social Security (Lei 32/2002 que aprova a Lei de Bases da Segurança Social of 20.12 in DR Nº294 Série I-A) the principle of non-discrimination, namely connected to nationality, between holders of the rights to social benefits.

2. Documents proving a family relationship or other durable relationship

General Remarks: Portuguese Law. (See above Introduction – I.B.1) Other durable relationships The Portuguese law (Lei n. 7/2001, of May 11th) also provides measures regarding protection of the de facto relationship (durable relationship) and granting two persons, independent of their sex, living in conditions similar to married couples almost the same rights as those granted to married couples. In Portugal de facto relationships (durable relationship) are proven by certificate issued by the “Junta de Freguesia” (Local Administrative Authority) of the relevant individuals’ domicile (Lei n. 7/2001, of May 11th and Portaria n. 701/2006 of July 13th). Family relationship or other durable relationship of EU citizens residing in Portugal.

Lei n. 37/2006 of August 9th (that transposed Directive n. 2004/38/CE on the freedom of circulation and residence of EU citizens, see above1) applies to a “familiar” (family) of an EU citizen within the meaning of its Article 2 (e), i.e., to:

- The spouse of a citizen of the EU; - Partner living in a de facto union with the citizen of the EU, constituted in

accordance with law, or with whom a citizen of the EU maintains a durable relationship duly certified by the competent entity of the MS of residence;

- Direct descendent less than 21 years old and within the responsibility of the EU’s citizen, his/her spouse or partner (above);

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- Direct ascendant within the responsibility of the EU’s citizen, his/her spouse or partner.

Right to reside in Portugal for less than 3 months (Articles 4-6, Lei 37/2006) – documents needed: When the “familiar” is a citizen of the EU:

- Valid ID or passport; When the “familiar” is from a 3rd country:

- Valid passport (in and out of the country) plus, for some countries, a visa (entrance);

- A foreign certification or a document proving a “de facto” relationship (Article 2 (e), Lei 37/2006). This private or authentic does not have to be legalized according to the Article 365, Portuguese Civil Code.

- If the “familiar” does not have such documents, a “reasonable period” will be granted for him/her to gather the relevant documents;

- The “familiar” must communicate its presence in national territory, in accordance with national law (Article 4 (5), Lei 37/2006).

NB: Citizens of the EU that can reside in Portugal for a period of more than 3 months (Article 7, Lei 37/2006):

i) exercise in Portugal a profession (dependent or independent) or ii) has sufficient financial resources to maintain himself/herself and medical insurance or iii) is enrolled in school/university and has sufficient financial resources to maintain himself/herself and a medical insurance

Right to reside in Portugal for more than 3 months (Articles 7-9, Lei 37/2006) – documents needed: When the “familiar” is a citizen of the EU:

- To be a “familiar” of a citizen of the EU that falls within one of the three abovementioned categories (Article 7 (1, d)).

- Valid ID or passport (in and out of Portugal); - Registration in accordance to Article 14 (6), Lei 37/2006, i.e., the “familiar” has

to have a valid ID/passport, a document proving a de facto union (above), certificate of the EU citizen that he/she accompanies or is reuniting with (see Article 14 (1-5)),

- In case of an ascendant or descendant to which the EU citizen is responsible for: document proving that “dependency/responsibility” relationship. Again no legalisation is needed in accordance with Article 365, Portuguese Civil Code.

When the “familiar” is from a 3rd country:

- Valid passport (in and out of the country) plus, for some countries, a visa (entrance);

- In case of a de facto relationship, a foreign certification or a document proving that de facto relationship (Article 2 (e), Lei 37/2006). This private or authentic document does not have to be legalized according to the Article 365, Portuguese Civil Code.

- If the “familiar” does not have such documents, a “reasonable period” will be granted for the “familiar” to gather them;

- To be a “familiar” of the citizen of the EU residing in Portugal in accordance with Article 7 (1-3), Lei 37/2006

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- Request the emission of a card of residence (Article 15 (1) and (2), Lei 37/2006 and Article 2 (b), Portaria 1637/2006) within 30 days of a period of residence of 3 months. Cost: 7 euro (first) or 7,5 euro (subsequent);

- Required documents for issuance of a card of residence (Article 15 (4), Lei 37/2006): Valid passport, document proving the relationship with the citizen of the EU (marriage certificate, document proving a de facto union, etc), certificate of the EU citizen that he/she accompanies or is reuniting with (see Article 14 (1-5), Lei 37/2006), or, in the case of an ascendant or descendant to which the EU citizen is responsible for: document proving that “dependency/responsibility” relationship.

- For the abovementioned documents, no legalisation is required. NB: After 5 years of residing in Portugal, an EU citizen and his/her “familiar” has the right to request a certificate of permanent residence (see Articles 16-17, Lei 36/2007 and Portaria 1637/2006).

3. Documents proving or contesting a parent-child relationship

(See above Introduction – I.B.1)

4. Documents proving the name and forenames of a child or adult

(See above Introduction – I.B.1)

5. Documents proving or annulling/terminating a marriage/civil partnership or

other durable relationship

(See above Introduction – I.B.1. Also, see above Article 52, Regulation 2201/2003)

6. Documents proving a person’s legal establishment for the purpose of pursuing

specific regulated professional activities

Directive 89/48/EEC and Directive 92/51/EEC (the two “general directives”) establishing a general system for the recognition of professional education and training were implemented into Portuguese law by DL 289/91 of 10.08.1991 in DR Série I-A Nº183 and DL 242/96 of 18.12.1996 in DR Série I-A, nº 242, respectively. 1) DL 289/91 as amended by DL 396/99 of 13.10.1999 in DR nº 239 Série I-A. - Scope ratione personae: EU and EEA citizen that has access to a regulated

profession in another EU state (Articles 1 and 4); - Aim: system of general recognition (SG) of professional education and training for

access to certain regulated professions (Article 2+Annex). Inter alia, lawyers, civil engineers, etc;

- Competent authority to, inter alia, decide on access to a regulated profession: depends on the regulated profession (Article 14 (1) and Annex). Examples: Lawyers: Ordem dos Advogados (Professional Bar); Engineers –civil, mechanical, etc: Ordem dos Engenheiros (Professional Bar); Psychologist: Inspecção Geral do Trabalho

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(General Inspection for Labour), etc. - Regulated professions: Lawyers, Official Accounting Revisers, Agent for Industrial

Property, Laboratory annalist, psychologist, Engineers, Teachers and Professors, Interpreter-guide, Tourism courier, transportation sector and technical staff for Public administration (Annex).

- Procedure: the request has to be made in Portuguese and contain the following elements: complete name, nationality, date of birth, State of origin, domicile as well as information on diplomas and qualifications – dates, content, issuing authorities (Article 5 (1). Requested documents: ID proving the nationality, authenticated copy or originals of diplomas and other qualification documents, authenticated copy or original document, issued by the state of origin, attesting its right to exercise the regulated activity in the state of origin, sum for expenses and, eventually, “idoneidade” proof (Article 5 (2) and, eventually, Article 6). Certified translation of the abovementioned documents may be requested (Article 5 (3);

- Decision: deferring, deferring the exercise under conditions (tests or traineeships), or not deferring. In the last case, it is possible a judicial appeal (Article 7);

- Delay of time for a decision: 4 months (Article 7 (4); 2) DL 242/96. - Scope ratione personae: EU and EEA citizen that has access to a regulated

profession in another EU state (Articles 1 and 5); - Aim: system of general recognition (SG) of professional education and training for

access to certain regulated professions (Article 2+Annex). Inter alia, , etc; - Competent authority to, inter alia, decide on access to a regulated profession:

depends on the regulated profession (Article 15 (1) and Annex I). Examples: Receptionist and Porter in the Hotel Industry: Instituto Nacional de Formação Turística, Ministério da Economia (National Institute for Tourist Training, Economy Ministry), etc.

- Regulated professions: Sector of Transport and Fisheries, Health Sector, Hotel and Tourism sector, Agriculture sector (Annex I). Also, providing services activities (Annex II)

- Procedure: the request has to be made in Portuguese and contain the following elements complete name, nationality, date of birth, State of origin, domicile as well as information on diplomas and qualifications – dates, content, issuing authorities. Requested documents: ID proving the nationality, authenticated copy or originals of diplomas and other qualification documents, authenticated copy or original document, issued by the state of origin, attesting its right to exercise the regulated activity in the state of origin, sum for expenses and, eventually, “idoneidade” proof. Certified translation of the abovementioned documents may be requested (Article 6);

- Decision: deferring, deferring the exercise under conditions (tests or traineeships), or not deferring. In the last case, it is possible a judicial appeal (Article 8);

- Delay of time for a decision: 4 months (Article 8 (5). NB: Directive 2005/36/EC will derogate these general instruments and other (sector) and will consolidate the existing legal framework. This instrument will be implemented into national law by October 20th 2007 (Article 63). 7. Documents proving a person’s professional qualifications (diplomas)

1. Applicable law in Portugal: general remarks.

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Competent authorities (Portuguese qualifications): Documents providing proof of a (Portuguese) person’s formal qualifications giving access to the profession, professional competence and diploma’s are issued by the school, university or other educational establishment in which the individual has completed his/her studies [see Articles 10 (5), 14, 15 and 22 (7), Law n. 49/2005 of August 30th, 2nd amendment to the Lei de Bases do Sistema Educativo]. DL Nº74/2006 of 24.03.2006 in DR Série I-A Nº60 together with DL Nº42/2005 of 22.02.2005 in DR Série I-A Nº37 (on the regulatory principles for the creation of a European space for the graduate studies) further develops the abovementioned law in the area of graduate and post-graduate university and polytechnic courses (see, specifically, Articles 13, 25, 37 and 40, DL 74/2006 and Articles 38-42, DL 42/2005). Inter alia, these two legal diplomas establish that the diploma in question shall be accompanied by a “supplement to the diploma” (Article 40 (2), DL 74/2006), both may be issued in several languages (Article 49 (2), DL 47/2006), This “supplement” is issued also by the University/Institution awarding the diploma and describes, in Portuguese and English, the Portuguese graduate system, the institution issuing the diploma, the degree and the qualification awarded (Article 39-40, DL 42/2005). This “supplement” has an informative value and is issued free of costs (Articles 42 and 40, respectively, DL 42/2005). 2. Recognition of foreign qualifications in Portugal.

a) At secondary school level: DL 227/2005 of 28.12.2005 in DR Série I-A Nº248 defines the regime for the recognition of foreign qualifications at the secondary school level (Article 1). - Scope: Portuguese and foreign students that hold a qualification from a public or

private secondary school, located in Portugal or abroad; - Aim: granting an equivalence certification for any legal purposes (Article 3); - Competent authority: executive or pedagogical director of the secondary school (and

eventually, also to the director-general for Innovation and Curricular Development) (Article 6);

- Procedure: the request for equivalence of qualifications has to be made in the secondary school of the area of residence of the student, in a specific formulary (Annex I), accompanied by the foreign diplomas, translated and authenticated in a Portuguese consulate/embassy or in the competent country’s consulate/embassy in Portugal or with the “apostille” (“Apostille Convention”) (Article 7);

- Delay of time for a decision: in general, 30 days (Article 8); - No costs for this service.

b) At the university level:

DL 283/83 of 21.06.1983 in DR Série I-A Nº defines the regime for the recognition (equivalência) of foreign qualifications at graduate and post-graduate level - Scope: Portuguese citizens; foreign citizens that hold a qualification (bachelor,

master and doctor) from a country that has an agreement with Portugal or that enables the recognition of Portuguese diplomas as well (principle of reciprocity – exemption to Parties to the “Lisbon Convention – UNESCO”) (Article 1);

- Aim: granting an equivalence certification for any legal purposes (Article 2); - Competent authority: rector of a Portuguese Public University (Articles 6 and 8) and

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the President of the Scientific Council of a Portuguese Public University (Article 11). Also, the equivalent bodies of the Portuguese Catholic University.

- Procedure: the request, in a certified formulary for equivalence of qualifications has to mention the diploma obtained and its awarding university together with Portuguese diploma to which it is equivalent to. Documents needed: Foreign diploma, certificate with the academic topics, its duration and qualifications. Eventually, copy of two academic papers and CV. Translation may be required (Article 31).

- Delay of time for a decision: in general, 60 days (Articles 13 (1) and 16). Maximum: 150 days;

- Each institution publishes its “costs table”. Approx. 200-400 euro. - Please consult (further information): http://www.acime.gov.pt/ (last consulted

February 2007).

8. Documents proving a person’s death

(See above Introduction – I.B.1)

9. Documents proving a person’s date of birth

(See above Introduction – I.B.1)

10. Documents proving the establishment by incorporation of a company

Merger (fusão) by incorporation of companies is regulated by Arts. 97,ss of the CSCom (see below 11). The project of incorporation has to be drafted containing the elements referred in Article 98, CSCom and, in principle, has to be communicated to the fiscal organ of the relevant companies and/or to a ROC (Revisor Oficial de Contas) (Article 99, CSCom). This project has to be registered in the Conservatória do Registo Comercial (Article 3 (1) (p), CRegCom) and, as a rule, submitted to the General Assembly of the relevant companies (Articles 100, 111 and 116, CSCom). See, in particular Article 3 (1) (q), CRegCom establishing the obligation to register in a Conservatória do Registo Comercial the project of constitution of a European company via a merger of different companies (sociedade anónima Europeia). The incorporation of companies has to be registered in the Conservatória do Registo Comercial (Article 3 (1) (r), CRegCom). The registration of the constitution by incorporation of a sociedade anónima Europeia (European company) is made based on the company’s contract (Article 36 (1), CRegCom. See also Article 36-A, CRegCom). See below 11 for “proof” of the incorporation of a company and translation of foreign documents)

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11. Documents proving the constitution of a company, including any official translation thereof

a) Constitution of a company in Portugal – general remarks. The constitution of a sociedade comercial (company), in the sense of Article 1, Código das Sociedades Comerciais Comerciais (hereafter, CSCom – Commercial Societies Code) in Portugal is regulated by the CSCom and the Código do Registo Comercial (hereafter, CRegCom, Commercial Registry Code). The contract for the constitution of a company must be written and the authenticity of the signatures of its parties (minimum of 2) must be certified by a notary (“reconhecida presencialmente”) and registered in the Conservatória do Registo Comercial, as stipulated in Article 7, CSCom and Article 3 (1) (a), CRegCom. That contract must contain the relevant elements of Article 9, CSCom, such as the type of company or the head office of that company. The Conservatória can only register the facts proved by documents in accordance with law (Article 32 (1), CRegCom) so documents written in a foreign language can only be accepted after certified translation (Article 32 (2), CRegCom) except if they refer to facts that are passive of being registered (registo por transcrição) and they are written in English, French or Spanish and the public officer dominates one of these languages. b) Proof of the constitution of a company. The function of the register is to give publicity and prove the legal status and existence of the company, in line with the principle of security of commercial transactions (Article 1, CRegCom). The registry of the constitution (or incorporation) of a company is proved by the issuance of a certificate (Article 75 (1), CRegCom). Its validity is of one year but it can be prolonged through identical periods by confirmation of the Conservatória (Article 75 (2), CRegCom). These certificates can also be issued electronically (Article 75 (3) (5), CRegCom). Competent authority: Conservatória do Registo Comercial (Article 76, CRegCom) Who may request the certificate of the register of the constitution of a company? The register is public. Any person may request a certificate (Article 73 (1), CRegCom). The information contained in the register can also be requested orally or in written, non certified form (Articles 73 and 74, CRegCom).

12. Documents proving the latest banking accounts of a company

Banking accounts are evidenced by the documents issued by the bank although these are not public documents. The competent authorities for the certification, translation and certification of translation of banking accounts of a company or of deposit of cash or certificates of deposit are the Chambers of Commerce and Industry, Lawyers and Solicitors, in accordance with Article

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6 of DL 237/2001 of 30.08.2001 in DR 201 SÉRIE I-A.

13. Documents proving the deposit of cash or certificates of deposit

See above 12.

PART II – Incoming documents: Effects in the Member State’s legal order

OVERVIEW OF PART II II.A.1. European Community Law

II.A.1.1. The effect of the implementation of Community law There is no rule regarding the legal status of foreign documents exempt from legalisation under EU law. If EU law is applicable and exempts foreign documents from legalisation, the principle of primacy of Community law which is embodied in the Portuguese Constitution (Article 8) dictates that this directly applicable legislation precedes national secondary law (national legislation, jurisprudence, doctrine and practice are in line with this – see above Part I.A.1). MS documents are thus, treated as equivalent to Portuguese documents. So, national supplementary rules apply ONLY when there is no specific Community legislation, namely, Articles 365, CC and 540, CPC (see above I.A.4). No difference de iure or de facto has been detected as regards documents originating from different Member States. (See above I.A.1, in particular, national jurisprudence on the primacy of Community legislation)

II.A.1.2. Admissibility and evidentiary weight in judicial proceedings (Above and below II. A.4.2)

II.A.1.3. Admissibility and evidentiary weight in administrative matters (Above and below II.A.4.2). II.A.2. Hague Convention of 5 October 1961 (the ‘Apostille’ Convention)

II.A.2.1. The effect of completion of the requirements of the Hague Convention Foreign public documents in which the Apostille has been attached are treated in the same way as domestic public documents and have equivalent legal status. No difference de iure or de facto has been detected as regards documents originating in different Member States.

II.A.2.2. Admissibility and evidentiary weight in judicial proceedings See below II.A.4.2.

II.A.2.3. Admissibility and evidentiary weight in administrative matters See below II.A.4.2.

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II.A.3. Parallel international agreements II.A.3.1. The effect of completion of the requirements of parallel agreements

Foreign public documents referred to in the said Instruments are treated in the same way as domestic public documents and have equivalent legal status. No difference de iure or de facto has been detected as regards documents originating in different Member States as well as between types of documents

II.A.3.2. Admissibility and evidentiary weight in judicial proceedings See below II.A.4.2.

II.A.3.3. Admissibility and evidentiary weight in administrative matters See below II.A.4.2. II.A.4. National Law

II.A.4.1. The effect of the completion of the requirements of national law The supplementary regime (when no International or Community legal instrument applies) on the legal status of foreign documents is regulated by Articles 365, CC and 540, CPC (see above I.A.4). Principle of equivalence of foreign documents – Article 365 (1), CC As a matter of principle, foreign documents, of authentic or private nature, are exempt from legalisation requirements and are considered to be equivalent to local documents of a corresponding nature. Only when there serious doubts about the authenticity or veracity of the foreign document may a Portuguese public authority request for its legalisation under Article 540, CPC (above). When a foreign document is legalised, following the requirements of Article 540, CPC it is considered to be equal to an equivalent authentic or private local document. No difference de iure or de facto has been detected as regards documents originating in different States which have been legalised in accordance with the CPC.

II.A.4.2. Admissibility and evidentiary weight in judicial proceedings Notion of document – Article 361, Civil Code (CC). Documents can be authentic, authenticated or private (Article 362, CC). a) Evidentiary weight in judicial proceedings/administrative matters: Authentic/authenticated documents: - The information contained on authentic documents benefits from a legal presumption

(Article 350, CC and Article 371, CC: “Os documentos autênticos fazem prova plena …”).

- Legal presumption (presunção legal): the party does not need to proof the content of the authentic document (Article 350 (1), CC);

- This legal presumption can be rebutted on the basis of falsity of the authentic document (Article 350 (2), CC and Article 372, CC): presumption iuris tantum.

- “Falsity”: when the fact proven by authentic document did not take place or when the competent authority for issuing authentic documents did not take part of the procedure (Article 372 (2), CC).

- Authenticated documents (notary) have the same evidentiary weight as authentic documents: Article 377, CC.

- FOREIGN authentic documents do not need to be legalised (Article 365 (1), CC).

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- If there are serious doubts regarding its authenticity or veracity, legalisation may be requested (Article 365 (2), CC and 544, CPC) in which case they are considered equivalent to Portuguese authentic documents.

- NB: the lack of one of the legal requirements (such as lack of legalisation of foreign document in case of serious doubts) may be freely appreciated by the judge (Article 366, CC). See in this respect ruling of Portuguese Supreme Court of Justice (above I.A.4.4) where a Brazilian authentic document, argued to be false and which had not been legalised, was appreciated by the Court as a private document.

b) Evidentiary weight in judicial proceedings/administrative matters: Private documents: - The information contained on private documents benefits from a legal presumption

(Article 350, CC and Article 376, CC: “Os documentos particulares (…) fazem prova plena …”).

- Legal presumption (presunção legal): the party does not need to proof the content of the authentic document (Article 350 (1), CC);

- This legal presumption can be rebutted on the basis of falsity of the private document (Article 350 (2), CC and Article 376 (1, in fine), CC): presumption iuris tantum.

- FOREIGN private documents do not need to be legalised (Article 365 (1), CC). - If there are serious doubts regarding its veracity, legalisation may be requested

(Article 365 (2), CC and 544, CPC) in which case they are considered equivalent to Portuguese private documents.

c) Admissibility of foreign documents: A Court shall take into account all documents (foreign or local) as evidence in judicial proceedings (Article 515, CPC). If a document is presented that is written in a foreign language the judge or the other party may request for its translation (Article 140 (1), CPC). In case of doubts as to the veracity of such translation, the judge will request a translation by a notary or authenticated by the competent consular services (Article 140 (2), CPC). The onus of proving the doubt or the falsity of a document presented by a party to a judicial proceeding impends on the other party (Article 516, CPC).

II.A.4.3. Admissibility and evidentiary weight in administrative matters (Above)

PART III – Incoming documents: Difficulties

OVERVIEW OF PART III PART III.A. General III.1. Hague Convention of 5 October 1961 (the ‘Apostille’ Convention)

III.A.1.1. Legal Not many important problems of legal nature have been reported within the 11 month period of the validity of the ‘Apostille’ Convention. The first one is the lack of settlement of the common attitude towards foreign public documents in administrative proceedings. But according to conducted surveys, apostilled foreign public documents have the same evidence force as domestic ones.

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The second one is the lack of a separate control procedure for the requirement of legalisation. If a judge or public administration officer wants one to get a legalisation or equivalent requirement to be fulfilled with regard to a public document, a party to the proceeding has no separate legal method to appeal this requirement. A party to the procedure could refuse to fulfil the requirement and as a consequence be rejected with reference to what he/she has claimed. No one would take such a risk. Everybody prefers to get legalisation as a result of a request. That’s why there is almost no case law and probably will never be. Of course, the financial and social cost of getting legalisation or equivalent requirements fulfilled is another problem. In my opinion more research and educational effort should be devoted to legalisation in general.

III.A.1.2. Practical Practical difficulties arise mostly by the use of certain foreign languages. III.2. Parallel international agreements

III.A.2.1. Legal The diversity of legal instruments at the Community, International and national levels lead some Courts (mainly First Instance ones – see above) to apply the wrong legal instrument. E.g. national civil procedure rules instead of the a relevant applicable Convention.

III.A.2.2. Practical See above III.A.1.2. III.3. National law

III.A.3.1. Legal No special difficulties recorded.

III.A.3.2. Practical See above III.A.1.2 PART III.B. Specific 1. Documents proving involuntary unemployment

(See above Part I.B)

2. Documents proving a family relationship or other durable relationship

(See above Part I.B).

3. Documents proving or contesting a parent-child relationship

(See above Part I.B)

4. Documents proving the name and forenames of a child or adult

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(See above Part I.B)

5. Documents proving or annulling/terminating a marriage/civil partnership or

other durable relationship

(See above Part I.B) 6. Documents proving a person’s legal establishment for the purpose of pursuing

specific regulated professional activities

(See above Part I.B) 7. Documents proving a person’s professional qualifications (diplomas)

(See above Part I.B) The difficulties here arise not so much in relation with the proof of foreign diploma but more with the recognition of those diplomas.

8. Documents proving a person’s death

(See above Part I.B) 9. Documents proving a person’s date of birth

(See above Part I.B) 10. Documents proving the establishment by incorporation of a company

(See above Part I.B) 11. Documents proving the constitution of a company, including any official

translation thereof

(See above Part I.B) 12. Documents proving the latest banking accounts of a company

(See above Part I.B)

13. Documents proving the deposit of cash or certificates of deposit

(See above Part I.B)

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PART IV – Outgoing documents: Difficulties

OVERVIEW OF PART IV PART IV.A. General IV.A.1. Hague Convention of 5 October 1961 (the ‘Apostille’ Convention)

IV.A.1.1. Legal No special difficulties recorded.

IV.A.1.2. Practical IV.A.2. Parallel international agreements

IV.A.2.1. Legal The diversity of legal sources may seem confusing for foreign authorities (see ruling on the Hague Convention on the Civil Aspects of Child abduction – above)

IV.A.2.2. Practical IV.A.3. National law

IV.A.3.1. Legal No special difficulties recorded.

IV.A.3.2. Practical PART IV.B. Specific 1. Documents proving involuntary unemployment

(See above Part I.B) 2. Documents proving a family relationship or other durable relationship

(See above Part I.B) 3. Documents proving or contesting a parent-child relationship

(See above Part I.B) 4. Documents proving the name and forenames of a child or adult

(See above Part I.B) 5. Documents proving or annulling/terminating a marriage/civil partnership or

other durable relationship

(See above Part I.B)

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6. Documents proving a person’s legal establishment for the purpose of pursuing

specific regulated professional activities

(See above Part I.B) 7. Documents proving a person’s professional qualifications (diplomas)

(See above Part I.B) 8. Documents proving a person’s death

(See above Part I.B) 9. Documents proving a person’s date of birth

(See above Part I.B) 10. Documents proving the establishment by incorporation of a company

(See above Part I.B) 11. Documents proving the constitution of a company, including any official

translation thereof

(See above Part I.B) 12. Documents proving the latest banking accounts of a company

(See above Part I.B) 13. Documents proving the deposit of cash or certificates of deposit

(See above Part I.B)

PART V – Justification of legalisation or other similar or equivalent requirements identified in Part I

OVERVIEW OF PART V PART V.A. General V.A.1. Hague Convention of 5 October 1961 (the ‘Apostille’ Convention)

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V.A.1.1 Requirements and procedures The underlying justification for the requirements and procedures relating to the Apostille Convention is the principle of legal certainty. Although the said requirements and procedures seam correct, proportionate and convenient for the purpose mentioned above, especially regarding Third States, they can still be simplified in order to obtain a more expeditious and simple procedure.

V.A.1.2 Effects rules See Part I (above). V.A.2. Parallel international agreements

V.A.2.1 Requirements and procedures Same as above.

V.A.2.2 Effects rules See Part I (above) V.A.3. National law

V.A.3.1 Requirements and procedures Same as above.

V.A.3.2 Effects rules See Part I (above) PART V.B. Specific 1. Documents proving involuntary unemployment

Non available. 2. Documents proving a family relationship or other durable relationship

Non available. 3. Documents proving or contesting a parent-child relationship

Non available. 4. Documents proving the name and forenames of a child or adult

Non available. 5. Documents proving or annulling/terminating a marriage/civil partnership or

other durable relationship

Non available. 6. Documents proving a person’s legal establishment for the purpose of pursuing

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specific regulated professional activities

Non available. 7. Documents proving a person’s professional qualifications (diplomas)

Non available. 8. Documents proving a person’s death

Non available. 9. Documents proving a person’s date of birth

Non available. 10. Documents proving the establishment by incorporation of a company

Non available. 11. Documents proving the constitution of a company, including any official

translation thereof

Non available. 12. Documents proving the latest banking accounts of a company

Non available.

13. Documents proving the deposit of cash or certificates of deposit

Non available.

PART VI – Suggested action

OVERVIEW OF PART VI VI.1. European - Further co-operation within the E.U., such as through a direct contact between

authorities. E.g. a direct line; - More information in a simplified manner available on the Internet (national and

EUROPA website); - More use of new technologies (on-line requests);

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- Courses at the EU level on training in these issues (with representatives from all MS’ authorities);

- Pier-reviewing of best practices; - Standard forms of documents may also be useful to obtain the said effect; - Differentiated treatment of legalisation: depending on the areas (E.g. a competitive

Europe of knowledge should enable researchers and students to move freely through a mutual recognition of diplomas. In Portugal, several PhD courses in other Member States are not recognized as leading to the title of Doctor).

VI.2. Intergovernmental Same as above. VI.3. National Above.