Under Portuguese civil procedural law, interlocutory
injunctions (or interim injunctions) were created to provide a
judicial response or reaction where a party, needing to ensure
the validity and/or enforceability of a right, required a
judicial order in a short time span.
Getting a favourable interlocutory injunction rests squarely
on the allegation and on the proof in the specific legal
requirements of the injunction. With regard to the Portuguese
regime, in interlocutory injunctions the plaintiff must
demonstrate before the court that there is: a probability of
the existence of the plaintiff's right (fumus boni
iuris); a well-founded fear of serious and permanent
damage to his/her right; and that the situation and/or right
demands an urgent judicial decision which cannot be submitted
to the normal delay of a judicial proceeding (periculum in
The urgent nature of interlocutory injunctions is the ground
for the entire legal regime set forth in the Portuguese Civil
Procedural Code and is the foundation of the interlocutory
injunction's core principles: the provisory nature of the
injunctionary decision and its (legal) effects; and the
instrumentality between the interlocutory injunction and the
The provisory nature of the injunction determines that a
plaintiff must bring the main proceeding, which rules over the
legal dispute in definitive terms, within a 30-day period,
under penalty of expiration of the proceeding. This regime is
easily understandable taking into consideration that the law
does not demand irrefutable or hardcore evidence for the
injunction to be given. The legal standard regarding evidence
is lower for interlocutory injunctions, in general terms, when
compared to that of common civil proceedings.
The instrumentality is closely related to the provisory
nature of the proceeding, since it determines that the
interlocutory injunction is dependent on the main
The classical paradigm of an interlocutory injunction is
grounded on its provisory nature and instrumentality. However,
this paradigm is frequently challenged and contradicted by the
dynamic and ever-changing reality of interlocutory injunctions
and their underlying rights.
In this regard, it is important to differentiate between the
two types of legal protection granted under an interlocutory
injunction. Conservatory injunctions are those in which the
judicial decision, following the plaintiff's claim, are aimed
at maintaining the status quo. This may refer either
to a factual or material situation that the plaintiff intends
to preserve or to a certain legal or contractual right the
defendant intends to keep unharmed.
On the contrary, anticipatory injunctions aim to anticipate,
to the largest possible extent, the final decision of the
dispute. Anticipatory injunctions are also applicable in cases
where the plaintiff's need for legal protection ceases after a
certain date and/or event. In these situations, an anticipatory
injunction is the only legal remedy that the plaintiff can use
to protect his/her right from serious and permanent damage.
Shift in responsibility
With regard to anticipatory injunctions, civil procedure
regimes have tried to adapt and establish rules and solutions
suited to their particularities.
The main issue that can arise from anticipatory injunctions
is the possible repetition of the legal action brought before
the court in the interlocutory proceeding. The possible
repetition of a lawsuit translates into a loss in the principle
of procedural economy and in the res judicata
For instance, in the Italian civil procedure regime Italian
lawmakers, in a 2005 legislative amendment, set forth a
provision which prevents the interlocutory proceeding from
expiring in the event that the interlocutory decision correctly
anticipates the final decision of the main proceeding.
Portuguese procedural law had a similar legal framework,
previously laid out under the Portuguese Administrative
Under article 121 of the Code, an administrative
interlocutory proceeding can become definitive if the following
requirements are met: i) the court finds that there is
sufficient evidence; ii) the proceeding is not complex; or iii)
if the urgency of the final decision determines as such. Once
the requirements are met, the court may, after the parties
state their positions in the matter, give the final decision on
These legal solutions may be considered potentially harmful
to other legal principles, such as the adversarial principle
and the principle of party disposition, since, in many cases,
the interlocutory injunction is declared without a prior
hearing of the defendant. Also, the principle of party
disposition includes the obligation on the defendant to present
the grounds of the judicial proceeding and prohibits the courts
from taking decisions without prior allegation and proof.
Given the abovementioned disadvantages of other legal
regimes, the rule set forth in the Civil Procedural Code aimed
to mitigate these inconveniences and establish a mid-term
More specifically, Portuguese lawmakers tried to provide a
solution to this issue in the Portuguese Legal Reform of the
Civil Procedural Code, enacted in 2013. This new Civil
Procedural Code established a new provision on this matter
under article 369.
According to the legal provision, the plaintiff may ask the
court for a shift in responsibility, meaning that the
responsibility of the burden of bringing the main proceeding is
shifted to the defendant.
In the event that a shift in responsibility is declared by
the court, the defendant would then have to bring a legal
action in order to challenge the judicial recognition, in the
interlocutory injunction, of the plaintiff's right, as results
from article 371 of the Civil Procedural Code.
The defendant is granted a 30-day period/deadline in which
he has to present the main proceeding, under penalty of
conversion of the interlocutory decision into a final decision
based on the existence of the plaintiff's right.
However, the shift in responsibility entails the fulfilment
of the following requirements: the proof brought to the
interlocutory injunction is sufficiently reliable to give the
court a firm conviction of the invoked right's existence; the
nature of the interlocutory proceeding is able to determine the
final settlement of the dispute.
Despite the letter of the law, under the civil procedural
regime, an interlocutory injunction is always provisory. That
being said, this requirement may not be interpreted as being so
demanding in the sense that the court will only grant the shift
in responsibility in the event the plaintiff proves the full
extent of the claimed right.
The subject of the main proceeding, in most cases, will be
the allegation and proof by the defendant of the non-existence
of the plaintiff's right (acção de simples
This means that the main proceeding's purpose, from the
defendant's point of view, is to obtain a judicial decision
that solely declares that the plaintiff's right does not exist
or that it may not be recognised to such an extent.
According to article 343 of the Portuguese Civil Code, in
judicial proceedings that aim to declare the non-existence of a
certain right, the burden of proof of the existence of the
alleged right is shifted to the defendant.
In the end, and in a considerable number of cases, the main
consequence of shifting the burden of bringing the main
proceeding is the shift in the burden of proof.
Other than this change in the burden of proof, one of the
main issues that can arise from the shift in responsibility
relates to the legal means the defendant can use in reaction to
a judicial decision granting the shift.
In the event that an interlocutory injunction is decided
with the waiver of the preliminary hearing of the defendant,
the party may challenge the interlocutory injunction.
On the other hand, the defendant may appeal the court's
decision to grant a shift in responsibility during the final
appeal of the interlocutory decision.
The appeal is limited to the Court of Appeal, meaning that
the decision is not challengeable before the Supreme Court of
Justice, unless the issue brought before the Court is always
Current legal practice
From our experience within the scope of the dispute
resolution practice, both the courts and law practitioners have
held multiple interpretations of the extent of this shift in
responsibility in anticipatory injunctions.
There has been an open debate among law practitioners over
the sufficiency and reliability of the evidence presented by a
defendant in an interlocutory injunction. They have not found a
common answer. Does this legal requirement demand that the
defendant present the same amount of evidence he would present
in the main proceeding?
Since the subject is open to debate, it is prudent for the
plaintiff to present, in the interlocutory injunction with a
request regarding the shift in responsibility, all possible
means of evidence. The courts are much more demanding in regard
to the probative value of the evidence and can only decide to
shift the responsibility once they are in possession of all
probative elements deemed possible.
Another debate is taking place around the question of
whether a defendant is bound to request the same legal
protection from the court in both the interlocutory injunction
and the main proceeding.
This requirement would, in a common civil proceeding, be a
direct consequence of the principle of party disposition.
However, in the field of the interlocutory injunctions, there
usually is a difference between the precautionary protection
and the definitive protection of a certain right, which can
only be provided by a final ruling of the case.
As previously mentioned, and resulting from the provision of
article 369 of the Civil Procedural Code, the procedural
mechanism of the shift in responsibility was aimed at
Since the Portuguese lawmaker intended to obviate the
problems and inconvenience of other legal regimes, it did not
go as far to make the initial purpose of the shift in
Given the requirements of the mechanism, it is still
possible to repeat a legal proceeding brought before the
courts. The main difference is that the new proceeding will be
brought by the defendant, instead of the plaintiff. However,
the defendant will still hold the burden of evidence and the
responsibility of proving the right.
This may be deemed a disadvantage of the Portuguese regime
but, simultaneously, it is a signal of prudence and caution in
the matter of anticipatory injunctions.
On the other hand, the shift in responsibility rule
presents, in our view, several advantages.
In its present form, the legal regime is able to assure the
constitutional right to a fair trial (direito ao processo
equitativo), on the basis of article 20 No. 4 of the
Portuguese Constitution, since it can only be assured with the
full proof of the main proceeding's object.
Furthermore, in the cases in which – and this
occurs more often than one would think – the content
of the interlocutory injunction is similar to the main
proceeding, the need to bring the main proceeding represents a
duplication of effort, with the inherent costs, that can now be
Once an interlocutory injunction is issued by the court, the
defendant evaluates whether the grounds are strong enough to
revert the interlocutory injunction issued by the court. In
this sense, the shift in responsibility may result in
There are other kinds of efficiency gains inherent to this
legal mechanism. Before the existence of the shift in
responsibility rule, the plaintiff would have to prove in the
main proceeding all the facts that had already been proved in
the interlocutory injunction, regardless of how clear the
evidence was. Now, the defendant has the possibility of
challenging in the main proceeding solely the facts which
could, in a reasonable assessment, be subject to a contrary
decision. This could, once again, avoid an unnecessary
duplication of efforts and costs, allowing the parties and the
court to focus on the disputed facts.
Finally, it is important to emphasise that, in the event the
defendant does not bring the main proceeding, the plaintiff
will be able, under this mechanism, to obtain a definitive
decision on a dispute in a short period of time.
In accordance with the aforementioned, interlocutory
injunctions are urgent proceedings which are ruled in a much
shorter period of time than the main proceeding. Therefore, if
the means of evidence are so clear that the defendant, after
the interlocutory injunction is issued, decides not to lodge an
appeal nor to bring the main proceeding, the plaintiff will
have obtained a definitive ruling in a much shorter period of
time than what was possible before 2013.
José Carlos Soares Machado
Partner and head of dispute resolution,
T: +351 213 132 000
F: +351 213 132 001
Partner and head of the dispute resolution
department at SRS Advogados, José Carlos Soares
Machado is a regular adviser to leading national and
international companies on litigation matters.
With more than 35 years of experience, José
Carlos is also a leading lawyer on corporate and
international arbitration matters. He is an arbitrator
with the Associação Comercial de Lisboa
and the Centro de Arbitragem Comercial (Arbitration
Centre of the Portuguese Bar Association). He is
assistant professor at the Universidade Nova de Lisboa
(Faculty of Law at the NOVA University of Lisbon) and
chairman of the Círculo de Advogados de
Contencioso (Portuguese Litigation Lawyers
José Carlos' expertise as an expert
litigator, negotiator and arbitrator, lies in
procedure, believing that litigators should not
specialise in sectors, but rather in the rules of
procedure in order to increase their client's chances
of success. He has been a speaker at numerous seminars
and conferences and has published several books and
articles in specialised publications. Arbitration
Country Practice Guide etc.
Associate, SRS Advogados
T: +351 213 132 000
F: +351 213 132 001
Luísa Pereira has recently been promoted to
associate, having completed her traineeship. She holds
a master's degree in forensic legal sciences from the
Universidade Nova de Lisboa (Faculty of Law at the NOVA
University of Lisbon) and has a degree in law from the
Faculdade de Direito da Universidade de Lisboa (Faculty
of Law of the University of Lisbon).