Tribunal da Relação de Évora; 2021-02-11; 1279/20.7T8FAR.E1
Decision by national courts in the field of European Union law — ECLI:PT:TRE:2021:1279.20.7T8FAR.E1.4F
Date: 2021-02-11
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Portugal

82021PT0211(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a matter of recognition and enforcement of foreign judgments brought before the Tribunal da Relação de Évora (hereinafter ‘the Court of Appeal’).
The plaintiff filed a suit in Switzerland against the defendant for a debt. The Swiss court gave a judgment on 24 October 2018, sentencing the defendant to pay the debt. The plaintiff applied to the Portuguese courts to declare the judgment enforceable in Portugal under Article 38 of the new Lugano Convention (1). The Portuguese courts declared the Swiss judgment enforceable.
The defendant appealed against the Portuguese Court of First Instance sentence, which had declared the Swiss judgment enforceable in Portugal, stating that the plaintiff could not be considered an interested party, because both the plaintiff and the defendant are domiciled in Switzerland. The plaintiff intended to seize an apartment owned by the defendant in Portugal, but procedures for seizing the defendant’s assets in Switzerland had not yet been completed. Since the plaintiff is not an interested party, the Swiss sentence should be enforced in Switzerland under Article 22(5) of the new Lugano Convention. Article 89(3) of the CPC (2) should not apply, but instead, its Articles 86 and 90.
The Court of Appeal upheld the judgment of the Court of First Instance, which declared the Swiss judgment enforceable in Portugal. The plaintiff’s interest in enforcing the Swiss sentence was due to the fact that the plaintiff has a legally recognised credit, titled by a sentence, which the plaintiff intends to enforce. Even if the alleged procedures of enforcement being carried out in Switzerland (an allegation which was not proven) might hinder the immediate seizure of the property in Portugal, that would be a matter for the Portuguese court before whom the enforcement was eventually requested after the declaration of enforceability was obtained and is irrelevant to the matter of simply declaring the Swiss judgment enforceable in Portugal. The appealed sentence declares the enforceability of the Swiss judgment.
The Portuguese courts could only deny the enforceability of the Swiss judgment if it had been issued by a court which did not have jurisdiction under the new Lugano Convention. What is at stake is not the jurisdiction of the court which declares the enforceability of the foreign judgment – defined in Article 39(1) of the new Lugano Convention. Nor is the question at hand the jurisdiction of the court which will carry out the enforcement after the exequatur is obtained, as the defendant’s argument seems to indicate – that case has not been filed yet. The matter is the jurisdiction of the Swiss court – and since that case is not an enforcement procedure, the new Lugano Convention does not apply to define its jurisdiction.
Finally, the plaintiff asked that the defendant be penalised for litigating in bad faith under Article 542(2)(a) of the CPC, but the Court of Appeal ruled that an unfounded case is not sufficient proof of bad faith – there must be gross negligence or wilful misconduct, i.e., the party in question must file a case knowing beforehand that it has no merit. Bad faith litigation must be cautiously assessed to not unreasonably limit parties’ constitutional right to access the court system.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Código de Processo Civil (Code of Civil Procedure).