2025-01-08
New paradigm in the legal system of electronic service of process

In an increasingly digital age, with technology playing a central role in the way we communicate, the dematerialisation of legal proceedings is imperative, guided by efficiency, speed and innovation, which are more in line with today's technologically modern world.

One of the biggest challenges and constraints faced by the legal process is the legal entropies in the service of process. With a view to removing them, the ‘Recovery and Resilience Plan - Recovering Portugal, Building the Future’ (PRR) was implemented. It is in this context that Decree-Law 87/2024 of 7 November (in force since 10 November 2024) established electronic service of process as a rule for legal persons and, as an option, for natural persons, whose technological solutions are regulated by Decree-Law 91/2024 of 22 November (which shall come into force on 15 January 2025).

In the light of this new legal framework based on the Code of Civil Procedure, the rules on service of process and notices set forth in the Insolvency and Company Recovery Code, the Code of Procedure in Administrative Courts and the Code of Labour Procedure were also harmonised - always giving priority to electronic means.

At the same time, faxes and telegrams are no longer a means of communication with the courts, without, however, neglecting the need to safeguard the right of access to the law and to effective judicial protection for those who have difficulty accessing technological means. For these cases, the possibility of submitting pleadings and documents by traditional post will remain in force.

Let us take a look at the main characteristics of this new paradigm in the legal system of electronic service of process, which is fundamental for the full exercise of the right of defence.

A. SERVICE OF PROCESS ON LEGAL PERSONS

I. Rule: Service of process by electronic means; 

II. Registration: The email address must be registered in order to be associated with the Courts' Digital Services Area, through the Public Electronic Notification System. The legal person must create a unique digital address (its email address) that will allow it to receive communications in the context of court proceedings;

• Safeguards: considering that small and medium-sized companies predominate in the Portuguese business community, the rule of service of process by electronic means was accompanied by a set of safeguards to ensure that their right to defence is not compromised. Thus, if the legal person does not register an email address to be associated with its reserved area, the service of process will be done by post by sending a (single) registered letter with acknowledgement of receipt which, if not received, will be deposited in its mailbox. The cost of the postal service will be borne by the legal person to be served and will also give rise to the payment of a fee of €51.00 (half of 1UC set in the Procedural Costs Regulation).

III. Electronic notice: Service of process, notices and communications addressed to natural and legal persons by the courts, the Public Prosecutor's Office, court clerks, enforcement agents, court administrators or other court officials to their recipients are made available in this reserved area with free access. When the service of process is made available, a notice is sent to the associated email address registered in advance;

1. Private Legal Persons: access to the reserved area for private legal persons is made by whoever has the business attribute, as a representative of the company, or by whoever has the capacity and powers of attorney certified under the terms of the Professional Attribute Certification System - ‘SCAP’;
2. Public Legal Persons: access to the reserved area for public legal persons is made by those who have a certified public attribute, in the same way as for private legal persons.

It should be noted that if the recipient does not have a Portuguese tax identification number or a Portuguese legal person identification number or if this information is not included in the case file, nor is it possible for the court secretariat to obtain it, it is considered impossible to send the service of process by electronic means, and it will be sent by post.

IV. Date of service of process and consultation:

1. The service of process is deemed to have been issued on the date on which it is consulted electronically in the reserved area.
2. If the service of process is not consulted within eight days, a new notice is sent by post to the address of the company's registered office to ensure that the legal person has been informed that the service of process is available for consultation in the reserved area. Notwithstanding the sending of a new notice, on the eighth day after the electronic service of process was sent, it is presumed that the addressee was duly aware of the information left for them, the system certifies that they were not consulted and the service of process is deemed to have been served on that date. Sending the notice by post does not interrupt or suspend the deadline for submitting a defence.
3. If the service of process is consulted within 30 days of it being deemed to have been issued (i.e. after the 8 days mentioned in the preceding paragraph), the deadline for submitting the defence starts to run from the date of consultation, with the days that have elapsed in the meantime being considered as an extension of the deadline.

B. SERVICE OF PROCESS ON NATURAL PERSONS

I. Optional: Service of process by electronic means (as an alternative to service by post);

II. Registration: Natural persons who opt for the electronic means must first register their email address, under the same terms as for legal persons, as described above;

III. Electronic notice: Natural persons, like legal persons, also receive a notice in their email address when the service of process is made available in their reserved area and a postal notice if there is no electronic consultation in the following eight days. Only natural persons can access their reserved area, without prejudice to the possibility of granting a legal representative special powers to consult the service of process and notices addressed to them. 

IV. Date of service of process and consultation:

1. Service of process by electronic means is deemed to have been issued on the date of the electronic consultation in the reserved access area (contrary to what happens with legal persons, service of process will not be deemed to have been issued on the 8th day after it is made available in the reserved area);
2. If the service of process by electronic means is unsuccessful because it has not been consulted by the thirtieth day after the service of process was made available in the reserved area, it is presumed that the service of process has not been received by the defendant (unless the contrary is demonstrated), the system certifies that it has not been consulted, the service of process is deemed to have been returned and then served by an enforcement agent;
3. If the service of process is consulted at a time later than that provided for in the preceding paragraph, but before service by an enforcement agent or by another means of service adopted subsequently is deemed to have been issued, service of process shall be deemed to have been issued on the date of consultation.

The new framework also takes the opportunity to clarify that the absence of the person being served, which means that the service by post must be repeated to a new address if, when the letter is attempted to be delivered, that address is specified to the postal distributor, does not refer to occasional absence, but only to cases of change of address or place of work.

In short, the legislator's intention to take a firm step towards a faster and more efficient procedural system is clear, so that justice is no stranger to the demands of the digital age. This change not only contributes to speeding up court procedures, but also strengthens the proximity between citizens and the justice system, ensuring simpler and more secure communication. For this new paradigm to succeed, it will be crucial to ensure support, transition and training mechanisms so that all procedural players can fully benefit from it.