The Consumer Finance Law Review: Portugal


The Portuguese financial system is fully integrated with the international and European financial markets. The Bank of Portugal (BdP) joined the European System of Central Banks (ESCB) on 1 June 1998. As a result, the definition and implementation of the country's monetary and exchange rate policy, the management of official currency reserves, the efficiency of the payment systems and the issuing of banknotes are now controlled by the ESCB.

Thus, the Portuguese regulatory system governing credit institutions and financial companies is, in broad terms, identical to the legal framework in force in other EU Member States. Furthermore, not only has the direct influence of EU law provided the Portuguese banking industry with a high level of protection regarding consumer finance, but recent national government policies have also contributed to this high level of protection. This has been achieved through the reinforcement of the information disclosure duties of credit institutions and financial companies, and the imposition of maximum interest rates in certain types of financing agreements.

Further to the Economic and Financial Assistance Programme, the Portuguese banking industry has undergone significant adjustments that have led to an asset contraction as well as to a change in its funding structure, giving preference to consumers' deposits rather than wholesale funding through securities. The banking industry in Portugal now comprises around 150 credit institutions, of which the four largest groups of banks are (by total value of assets and from the largest to the smallest): Caixa Geral de Depósitos (a state-owned bank), Banco Comercial Português, Banco Santander Totta (who acquired Banco Popular Portugal following the resolution measure applied over Banco Popular España) and Novo Banco (a bridge bank following the resolution measure applied by the BdP over Banco Espírito Santo).

As for its key financial indicators, by the end of the first semester of 2021, they showed that the banking industry had a total asset value of €435.7 billion,2 while on the other hand, the value of credit granted to customers amounted to a total of €243.99 billion3 and the value of deposits amounted to a total of €295.40 billion.4

Legislative and regulatory framework

i Legislation

The Portuguese legal framework governing consumer payment, deposit and lending services is strongly influenced by EU legal instruments. As for national law, at the top of the hierarchy the Constitution of the Portuguese Republic contains principles regarding the national financial system as a whole, as well as other provisions governing the regulatory role of the BdP. Following it is the Basic Law of the BdP, enacted by Law No. 5/98 of 31 January, as amended. This law establishes the basic structure of the BdP and relevant aspects of banking supervision. Both the Portuguese Commercial and Civil Codes must be considered when referring to the relevant legal framework governing consumer finance.

The Portuguese regulatory framework governing the activity of credit institutions and financial companies (authorisation, registration, etc.) is set out in the Credit Institutions and Financial Companies General Framework, enacted by Decree-Law No. 298/92 of 31 December, as amended (RGICSF). This law also governs, among others, the supervisory activity of the banking regulator, the BdP, and the Resolution Fund. In turn, payment institutions are subject to the Legal Framework of Payment Institutions and Payment Services, enacted by Decree-Law No. 91/2018 of 12 November.

In particular, Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers was implemented into Portuguese law by Decree-Law No. 133/2009 of 2 June, as amended. This regime has been in force since 1 July 2009. Notwithstanding, the previous regime enacted by Decree-Law No. 359/91 of 21 September is still applicable to credit agreements executed before 1 July 2009.

Among several others, the following laws (as amended) must also be taken into consideration: Decree-Laws Nos. 381/77 of 9 September, and 454/91 of 28 December, regarding payments by means of bank cheques and other debt securities; Decree-Laws Nos. 220/94 of 23 August, and 74-A/2017 of 23 June, as amended, regarding lending agreements (the applicable information disclosure duties, interest rates, etc.); Decree-Law No. 349/98 of 11 November, regarding housing credit; and Decree-Law No. 446/85 of 25 October, as amended (Decree-Law 446/85),5 which establishes the Portuguese unfair contract terms regime applicable to contractual terms that have not been individually negotiated (LCCG).

Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property was partially implemented into Portuguese law by Decree-Law No. 81-C/2017 of 7 July, as amended, which establishes the requirements for the taking-up and pursuit of the credit intermediation activity.

ii Regulation

As for the body in charge of implementing and enforcing the regulation of consumer finance services, the BdP, as the Portuguese central bank, plays a central role. Notwithstanding this, there are also bodies responsible for consumer protection that must be taken into account, as they not only support consumers in general but also in some circumstances offer legal advice to their members, notably the Portuguese Association of Consumer Law and the Consumer's Directorate-General, from the Ministry of Economics.

The BdP is responsible for the prudential and market conduct supervision of credit institutions, financial companies and payment institutions with a view to ensuring the stability, efficiency and soundness of the financial system, as well as the compliance with rules of conduct and transparency requirements towards bank customers, thereby ensuring the safety of deposits and depositors, and the protection of consumer interests. Likewise, whenever credit institutions or financial companies pursue financial intermediation activities, they will be subject to the supervision of, and regulations issued by, the Portuguese Securities Market and Exchange Commission. In turn, whenever those entities also pursue insurance intermediation activities (e.g., banks), they will be subject to the supervisory powers and the regulations issued by the Portuguese Insurance and Pensions Supervisory Authority. Among others, a significant number of those regulations are targeted at consumer protection and safeguarding the customer's rights.

Among the different aspects of its actions, of the utmost importance are the BdP's powers to issue notices, instructions and circular letters, which set out rules and conduct for the banking industry to comply with regarding the services to be provided to the general public. Furthermore, the BdP has the power to enforce Portuguese banking laws and regulations through: fines and ancillary penalties; injunctions for the fulfilment of certain duties; seizure of documents and valuables; and special audits through on-site inspections.

Each consumer has the right to file complaints against banks or other institutions (e.g., credit institutions, financial companies, payment institutions) within the scope of the marketing of consumers' banking services (e.g., deposits, home credit, consumer finance, credit cards). These entities are required to present their complaints book when solicited to do so. These complaints may also be filed directly before the BdP, but the latter only has power to verify whether the institution is complying with its duties or not, and is incapable of demanding the institution remedy the damages or pay compensation to the consumer. This level of legal protection is only guaranteed by courts and similar judicial entities.

In July 2019, the BdP joined the e-platform 'Livro de Reclamações', so that bank customers can submit complaints through this channel as well. With this new channel, complaints received increased, and in 2019, the BdP received 18,104 bank customers' complaints, 18.7 per cent more than in the previous year.

Moreover, Portugal has implemented Directive 2013/11/EU of the European Parliament and of the Council of 21 May, by means of Law No. 144/2015 of 8 September, as amended, regarding the alternative resolution of consumer disputes.


i Overview

Payment instruments in Portugal are highly reliable, and the payments market in Portugal is in line with international best practice.

Prior to the entry into force in Portugal of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market, which has been repealed and replaced by Directive 2015/2366 of the European Parliament and of the Council of 25 November 2015 (the Payment Services Directive), the issuance and management of debit cards was mainly governed by the BdP Notice No. 11/2001 of 20 November on credit and debit cards and corresponding terms of use (BdP Notice 11/01), and by the RGICSF. The pursuit of this activity in the Portuguese territory had to be carried out by credit institutions or financial companies.

Upon the implementation into Portuguese law of the Payment Services Directive by the enactment of Decree-Law No. 317/2009 of 30 October, which has been repealed and replaced by Decree-Law No. 91/2018 of 12 November (DL 91/2018), the RGICSF has been amended to provide for the establishment of the new 'payment institutions' (which do not fall under the definition of credit institutions or financial companies) that are entitled to provide payment services – these include the issuance of debit cards.

However, BdP Notice 11/01 has not been amended or revoked in light of the new rules on the provision of payment services. Consequently, at present DL 91/2018 provides for rules on the issuance of debit cards applicable to entities that may provide payment services – credit institutions, financial companies and payment institutions – and BdP Notice 11/01 provides for rules on the issuance of debit cards for credit institutions and financial companies.

The large majority of rules provided for BdP Notice 11/01 are also provided for in DL 91/2018, although there are some differences worth highlighting, such as: (1) whereas in DL 91/2018, when the client is not a consumer or a microenterprise, parties may provide that the rules on the information requirements set out in the law are not applicable, the rules set out in BdP Notice 11/01 are mandatory; and (2) BdP Notice 11/01 requires the agreements be written in Portuguese and expressly provides that the information on charges and rates of interest cannot be inserted in the agreement by reference to a list of costs and charges available in the branches or by another medium (such as the website) and that the issuer is entitled to change the agreement by giving a 15-day notice period to the client.

Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions (IFR) became directly applicable in its entirety from 9 June 2016, and Directive 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market (the PSD2 Directive) was implemented in Portugal by means of Decree-Law No. 91/2018 of 12 November

ii Recent developments

Up until now, the BdP has only issued some guidelines on its official website regarding interchange fees, which are mainly addressed to consumers, containing, among other matters, a summary of the main provisions of the Regulation and an explanation of the concepts of 'brands' and 'co-branding'.

In Portugal, for debit-card-based payment transactions, the interchange fee cannot be more than 0.2 per cent of the transaction value. In credit-card-based payment transactions, this fee cannot be more than 0.3 per cent of the transaction value.

More broadly, in 2020, the covid-19 pandemic had a significant impact on, inter alia, consumption and payments. After six years of growth, payments made with cheques, bills of exchange, direct debits, credit transfers, instant transfers and cards together fell by 9.2 per cent in volume and 4.1 per cent in value compared to 2019. Notwithstanding this, online purchases increased by 32.3 per cent in volume and 9.6 per cent in value, and contactless technology grew by 163 per cent in volume and 271 per cent in value.

Deposit accounts and overdrafts

i Overview

In Portugal, only credit institutions duly authorised by the BdP are allowed to take deposits and other repayable funds.

As provided in Decree-Law No. 430/91 of 2 November, as amended, there are several types of deposits. If we consider the movement of funds, the most common are on demand and term deposits. The first are characterised by the freedom to withdraw the funds at any time, while the second are refundable only after a certain period of time, although credit institutions may allow for early fund mobilisation subject to a penalty on the accrued interest. Conversely, if we consider the banks' remuneration, we may include simple or indexed deposits, as the first use fixed rates (or variable rates indexed to money market rates), while in indexed deposits the remuneration depends on the evolution of other variable rates.

Under the principle of contractual freedom, each credit institution is free to determine the conditions of these types of contracts, which are frequently set out by means of standard adhesion contracts for the opening and managing of bank accounts. These contracts may reveal a clear asymmetry between the rights and obligations of credit institutions and consumers, leading to an unbalanced legal relationship. As mentioned above, these contracts are subject to the Portuguese unfair contract terms regime, which has a significant role in avoiding unfair and unfavourable conditions.

Credit institutions must comply with certain information disclosure duties for consumers to have correct knowledge of the contracts. The content of the information provided therein, regarding simple deposits, is provided in BdP Notice No. 4/2009 of 20 August, while the details of the information for indexed deposits are set out in BdP Notice No. 5/2009 of 20 August.

In addition, credit institutions may authorise overdrafts, through an agreement with the consumer or a tacit acceptance from the institution itself. The first option is called an overdraft facility and is based on a contract between the client and the credit institution, allowing the client to continue to withdraw money up to a certain pre-agreed amount when the account has no more funds. The second option is overrunning, which refers to the situation where there is no prior agreement; instead, the credit institution tacitly allows consumers to make use of funds even if their current balance is exceeded.

Under Decree-Law No. 27-C/2000 of 10 March, as amended, all credit institutions must offer access to basic banking services at a reduced cost through a minimum banking services account. This service consists of, notably: opening and holding of minimum banking services accounts; provision of a debit card; access to the accounts through cash machines, home banking services and service over the counter; and deposit facilities, withdrawals, payment for services and goods, direct debit and transfers between different national banks.

The Portuguese Deposit Guarantee Scheme (DGS) covers every deposit up to a maximum of €100,000 per client and per bank. Further, Directive 2014/49/EU of the European Parliament and of the Council of 16 April states that every DGS must ensure a capitalisation level of 0.8 per cent. Recent data shows that in 2019 the Portuguese DGS had a capitalisation level of 1.04 per cent, still well above the 0.8 per cent, placing the Portuguese guarantee fund among the most highly capitalised DGSs within the EU.

ii Recent developments

Law No. 66/2015 of 6 July, as amended, has brought some changes to the deposits' legal framework. First, credit institutions cannot offer overdraft facilities or overrunning under the regime of Minimum Banking Services. Second, pursuant to the amendment now introduced in the RGICSF, credit institutions must send an annual invoice-receipt detailing all the fees and expenses related to on-demand deposits from the previous year to the account holder.

Law No. 57/2020 of 28 August has amended Law No. 66/2015, introducing a new rule regarding the commissions and expenses charged by credit institutions and other now service providers. These commissions and expenses must correspond to a service actually provided and must be reasonable and proportionate to the costs incurred, and the charging of any commissions, fees or other charges of a different kind shall be prohibited where no service is actually provided.

Revolving credit

A bank card is issued in accordance with an umbrella agreement that must establish the terms and conditions of the contractual relationship between the cardholder and the entity that has issued it. Very often a credit agreement is executed through the use of a credit card that has the provision of a line of credit underlying it, as opposed to the lending of a certain amount. As the terms and conditions of a credit card are linked to the respective credit agreement, only where a limit has been set out in the scope of a line of credit is there the possibility of revolving credit. Lending entities are obliged to provide the customer with the respective written contracts, which are commonly drafted as standard contracts (and therefore subject to the unfair contract terms regime) and usually presented as the card's general terms and conditions, as the card's sole purpose is to serve as a means of payment.

As for servicing burdens charged by the credit card issuer, they vary among the different credit institutions. However, it is mandatory for all such costs to be clearly indicated in the credit agreement, which must contain information on all the applicable interest and exchange rates, or, if applicable, the calculation method and the reference date used in determining the applicable interest or exchange rate.

It is also worth mentioning Decree-Law No. 227/2012 of 25 October, which establishes the set of principles and rules that credit institutions must follow on the management and monitoring of the risk of default in consumer finance. This statute provides that all credit institutions must create a plan of action for the risk of default to prevent situations of default by their customers. More importantly, this statute creates and defines the Out-of-Court Procedure of Default Situations' Regularisation (PERSI), which consists of a debt restructuring procedure designed for financial consumers. The PERSI is applicable to the majority of credit agreements executed with consumers and does not depend on any access conditions (not even a request from the consumer). During the debt restructuring negotiations under the PERSI, the consumer has a set of legal guarantees, three of them being the impossibility that credit institutions may terminate the credit agreement; take legal actions to claim those credits; and assign those credits to a third party.

Decree-Law No. 227/2012 has been recently amended by Decree-Law No. 70-B/2021 of 6 August, providing protective measures for bank customers with credit agreements falling under a moratorium and amending the general default regime. Under this new regime, credit institutions are obliged to prepare and implement an action plan for default risk, describing in detail the procedures and measures adopted for monitoring the execution of credit agreements and the management of default risk situations.

In relation to PERSI, this decree-law requires credit institutions to create, in a durable medium, individual files for the bank customers covered by the procedures foreseen in PERSI, which must contain all relevant elements described in Article 19 of Decree-Law No. 70-B/2021 of 6 August.

Finally, a brief reference must be made to contactless cards, which have recently been introduced to the Portuguese banking industry. Usually, the issuer entity establishes both the maximum amount allowed for single payments as well as an overall maximum amount for successive transactions without the use of the card's PIN (personal identification number) code (currently,6 bank customers may only make a contactless payment if the value of the transaction is below €50 and the overall amount or number of successive contactless transactions is a maximum of €150 or 5 transactions (the entity that issues the card can set lower limits)). The BdP issued a circular letter on the subject, thus publishing the good practices regarding the information duties that the issuer entities must provide to their customers, including the obligation for those entities to provide said information by means of a paper document or other durable medium.

Instalment credit

The consumer credit regime applies to contracts for amounts between €200 and €75,000. There are different forms of consumer credit, depending on purpose, namely: personal credit, which may include student and health loans; and car loans, through leasing, with reservation of title, or others. Even though they are all considered consumer credit, these contracts entail different costs, fees and charges.

The housing credit regime applies to contracts for the purpose of the purchase, construction, maintenance or improvements of privately owned property or the purchase of land for its development. These contracts may be secured by a mortgage on the property, which may be reinforced by other means, such as the life insurance of the debtor and his or her spouse or any other kind of guarantee that may fit the intended purpose.

Credit institutions have the right to terminate both consumer and housing credit contracts. For the purpose of consumer credit, credit institutions may terminate the contract if the following two requirements are met: the non-payment of two consecutive instalments that exceed 10 per cent of the total amount of credit; and in the case that the creditor has given additional time of a minimum of 15 days for the consumer to pay the delayed instalments, together with possible compensation due, with a warning regarding the consequences of losing the right to pay by instalments or the consequences concerning the termination of the contract.

For the purpose of housing credit contracts, credit institutions may terminate the contract in the case that the consumer fails to pay at least three overdue and unpaid instalments.

For both types of credit contracts, consumers have the right to request a partial or total early repayment, upon providing a prior notice to the bank. If the consumer decides upon an advanced repayment, it could result in extra costs. For consumer credit contracts, credit institutions are not authorised to charge any fees when this concerns the early repayment of loan agreements with a variable interest rate. However, they are entitled to do so in the case of the early repayment of loan agreements with a fixed interest rate. Concerning housing credit contracts, banks may charge extra fees for early repayments for loan agreements with either fixed or variable interest rates.

The consumer, whether requesting details on consumer or housing credit, is entitled to clear, complete and updated information regarding the characteristics, conditions and costs of the loan. Credit institutions, apart from these pre-contractual obligations, must continue to inform their clients, among others, on the status of the loan, of changes to the interest rate and of any breaches of contractual obligations. BdP Notice No. 10/2014 of 3 December establishes the information requirements that must be fulfilled by credit institutions during the term of the consumer credit contract. By the same token, BdP Notice No. 5/2017 of 22 September establishes the information requirements for housing credit contracts provided by credit institutions.

Under Portuguese law, lending (secured or otherwise) is considered a banking activity. Accordingly, any short-term consumer lending activity that is carried out, on a professional basis, by an entity that is not duly authorised or registered with the BdP, shall be deemed a very serious administrative offence, subject to a fine of up to €5 million, plus ancillary sanctions.

As mentioned above, although the banking activity may only be carried out by credit institutions or financial companies that are duly authorised, crowdfunding is emerging within the scope of the sharing economy. Crowdfunding, as a channel of financing, allows matching investors directly with the contributors and projects in need of funds, mainly in the early stages, by means of electronic platforms.

Law No. 102/2015 of 24 August, as amended, has established the rules on crowdfunding. This law addresses the models of crowdfunding: key features and duties of the owners of digital platforms; key features and duties of the parties; conditions of entry to the activity; registration procedure; terms of open call to the public to raise funds for a specific project; and competence of the Portuguese Securities Market Commission, as the Portuguese authority responsible for supervising and monitoring proper decisions of managing bodies of platforms.

Law 102/2015 of 24 August is encouraged by European interest on this form of financing, though with limited cross-border activity for the moment.

There is a recent regulatory change that will have an impact on banking lending activities. Decree-Law No. 144/2019 of 23 September was recently enacted and it establishes, among other changes, the creation of loan funds as an alternative financing instrument, especially designed to accommodate the difficulties felt by small and medium-sized enterprises in obtaining financing through banking loans. The purpose of these loan funds is to lend directly to debtors, to participate in loan syndicates or to acquire loans originated by banks or other entities, through credit assignments. Therefore, loan funds represent a new way of boosting the capital markets, in an attempt to follow the trends observed in other reference European markets that admit loan funds.

Additionally, Decree-Law No. 144/2019 also transferred from the BdP to the Portuguese Securities Market Commission supervisory powers over management companies of collective investment schemes and management companies of securitisation funds. This statute entered into force on 1 January 2020.

Other areas

In recent years, two other issues were widely discussed in Portugal, as much for their relevance within the banking industry as for the rising public controversy that they have caused.

The first widely discussed issue is related to the effects of a potential negative interest rate on lending agreements. This was because of European financial policies, which have led to the lowest interest rates in years, with direct effects on the Euro Interbank Offered Rate (EURIBOR), which in the first semester of 2015 reached negative values for the first time (when considering the three-month rate). In Portugal, EURIBOR is commonly used as the variable interest rate in consumer finance agreements such as home credit. The BdP was thus questioned as to whether these negative values should serve as a discount on the consumers' credit instalments, or whether the variable interest rate should be deemed as equal to zero whenever the relevant credit agreement did not specifically govern the matter.

The BdP started by issuing Circular Letter No. 26/2015/DSC of 30 March, in which, in general terms, it stated that:

  1. the interest rate applicable to a contract should result from the arithmetic average between the fixed and the variable interest rate; and
  2. if no specific provision exists regulating the negative value event, credit institutions may hedge this event by means of financial instruments.

This means that the clients would benefit from the negative value of the EURIBOR. More than one year later and after much controversy, the Governor of the BdP stated before the Parliament, and by means of a letter to the Minister of Finance, that credit institutions should not bear the risk of negative interest rates alone and that, if the average between the variable interest rate and the spread (usually a fixed rate) is negative, then it should be deemed equal to zero. Subsequently, Law No. 32/2018, of 18 July, was enacted, establishing that in situations where the sum of the index and the spread results in a negative interest rate, credit institutions are obliged to reflect that rate in full in the amounts payable by customers. Credit institutions may choose either one of the following:

  1. to decrease the negative amount determined to the outstanding principal of the outstanding instalment; or
  2. to create a credit in favour of the customers, which shall be deducted from the interest due as soon as it becomes positive.

If, upon termination of the loan agreement, there is still a credit in favour of the customer, credit institutions are obliged to pay it.

Second, the Portuguese banking industry has discussed crowdfunding as an alternative way of financing. See Section VI on the regulated nature of the lending activity and the recent developments in crowdfunding.

Moreover, in 2021 there have been important legislative changes that should be highlighted, which are detailed below.

Recently the Law No. 32/2021 of 27 May (Law 32/2021) amended the General Contractual Terms/Unfair Contract Terms by imposing new formal requirements that, basically, materialise an aspect of the duties of information and communication imposed to this type of contract. According to Law 32/2021, general contractual terms that are written in a font size smaller than 11 or 2.5 millimetres; and with a line spacing of less than 1.15 millimetres, are absolutely prohibited.

Decree-Law No. 59/2021 of 14 July introduced the regime applicable to the availability and dissemination of telephone lines for consumer contact. This new regime applies to 'suppliers of goods or service providers' and 'entities providing essential public services'. According to this Decree-Law, these entities must have a free telephone line or, alternatively, a telephone line with a geographic or mobile numbering range (i.e., starting with two or nine, according to Portuguese telephone numbers). However, calls relating to the pre-contractual phase and those that are in themselves performance of the contract are not included. Another important innovation is that it requires companies to provide a telephone line.

Decree-Law No. 9/2021 of 29 January approved the Legal Regime of Economic Offences and punishes, as a minor administrative offence, the failure to comply with the duty of information regarding alternative resolution of consumer disputes, and as a serious administrative offence the unfair commercial practices and the failure to comply with the duty to provide pre-contractual information in distance or off-premises contracts.

Lastly, Law No. 78/2021 of 24 November established the legal regime on the prevention and combating of non-authorised financial activity and protection of consumers, by imposing certain additional information disclosure requirements to financial institutions operating within the Portuguese territory.

Unfair practices

Consumer credit agreements, governed by Decree-Law No. 133/2009 of 2 June, often contain general contractual clauses and, therefore, must comply with specific requirements.

The qualification of a general contractual term requires, as per Decree-Law 446/85, the lack of ability of one of the parties to negotiate the contractual term stipulated by the other party or that the addressee of this contractual term is not able to influence its content.

As these clauses are not negotiated in advance, the compliance with the information and communication duties imposed by the LCCG is fundamental. These duties of information and communication are particularly relevant in this context, given that in this type of contract it is common for information to be provided in a smaller font size and that according to the unfair commercial practices regime (Decree-Law No. 57/2008 of 26 March), a commercial practice is considered unfair if it contains false information or if, although factually correct, for whatever reason, namely its general presentation, it deceives or is likely to deceive the consumer or leads or is likely to lead the consumer to make a decision that he or she would not have taken otherwise.

To clarify these duties, the Portuguese courts ruled that it is not important to take into account the subjective level, but an objective parameter that corresponds to a standard of reasonableness and that is proportionate to the consequences that the parties may suffer as a result of the disparity of power.

The court also clarified that, in light of the principle of reasonableness, the information must be transmitted by efficient means and with adequate content, and reaffirms the importance of a 'broad concept of informing', which encompasses not only the duty to inform strictu sensu (merely informing the counterparty of the essence of the clause) but also the duty to advise (providing guidance on the best conduct to adopt) and the duty to warn.

As mentioned above, Law 32/2021 amended the LCCG by imposing new formal requirements that, basically, materialise an aspect of the duties of information and communication.

Nevertheless, according to a reputed Portuguese legal scholar, the new format requirements introduced by Law 32/2021 to the LCCG are not applicable to pre-contractual information, given that the purpose of pre-contractual information is to inform the customer rather than to govern the relationship between the parties.

Notwithstanding, if an entity fails to comply with these new requirements, and not forgetting that the clause will also be considered as absolutely prohibited, this behaviour may be considered an unfair commercial practice, qualified as a serious offence under the Legal Regime of Economic Offences.

Recent cases

i Enforcement actions

In the context of its supervisory powers, the BdP has conducted a number of inspections that specifically targeted compliance with the rules governing consumer finance. Particular attention was paid to annual percentage rates, information duties and the conduct of business. Pursuant to these inspections, the BdP issued both recommendations and mandatory orders to credit institutions. In a small number of cases, it also applied sanctions.

ii Litigation

In 2016, the Portuguese appeal courts rendered two judgments that significantly influenced credit institutions' rights in the case of default of the financial consumer. These rulings found it unlawful for a provision in a consumer finance contract to depart from the legal regime and allow the creditor to claim the outstanding compensatory interest if the debt is accelerated following an event of default. This entails that, if the consumer fails to pay the instalments in due course, creditors will only be entitled to the principal amount, the accrued compensatory interest and the default interest.

Although these decisions do not bind other courts, they nevertheless provide solid grounds for other courts to rule in the same way.

Another subject addressed by the appeal courts was the relationship between consumer finance and other consumer contracts. The Lisbon Court of Appeal ruled that, where a consumer loan was granted specifically in connection with an underlying consumer contract (e.g., the sale and purchase of a good or a service), the termination of the latter entails the termination of the former. In this context, the court decided that it was abusive for the creditor to fill in and execute an unfilled promissory note issued by the consumer for the purposes of securing the consumer loan.


After the considerable decrease that took place in 2011–2012, consumer finance in Portugal has been steadily on the rise since 2013.

In 2019, at the national level, priority was given to, among others, the monitoring of the macro prudential measure7 adopted in the form of a recommendation by the BdP in 2018, aimed at mitigating the risks associated with new credit agreements with consumers.

In 2020, asset quality also improved significantly, the non-performing loans (NPL) ratio continued to follow the downward trend that began in mid-2016, NPL ratios both gross and net of impairments continued to decline, albeit at a slower rate, reflecting greater difficulties in the sale and recovery of already existing NPLs. Compared with 2020,8 in 2021 the total amount of loans granted by banks to corporations grew 5.1 per cent from September 2020 to €76.3 billion and the amount of loans to households for house purchase grew by 4.3 per cent from September 2020 to €96 billion.

The rapid escalation of the public health crisis caused by covid-19 has created an unprecedented situation that poses innumerable legal challenges, both on a national and international scale. Since 30 January 2020, when the World Health Organisation declared this situation to be a public health emergency on an international scale, the seriousness of the crisis has gradually worsened and there are now numerous countries, including Portugal, that have approved various types of measures such as mitigating the economic impact of the virus.

Portugal reacted to this situation by passing laws such as Decree-Law No. 10-J/2020 of 26 March, as amended, which approved the public moratorium pursuant to which the enforcement of payments related to loans benefiting from these measures is suspended, including the enforcement of instalments in arrears at the time the application of the moratorium was requested, and therefore default interest and other contractual penalties cannot be charged. In the case of consumer finance, the public moratorium covers, among others, credit for financing education services (including academic and vocational training).

In line with the European Banking Authority guidelines,9 credit institutions also voluntarily provided private moratoriums to their clients, and these moratoriums covered loan agreements that do not benefit from the public moratorium (e.g., car loans). These moratoriums are no longer in force and Law No. 50/2021 of 30 July extended the moratorium foreseen in Decree-Law No. 10-J/2020 of 26 March until 31 December 2021.

The impact that the end of the moratoriums will have on the Portuguese economy and, in particular, on consumer loans, can only be ascertained at a later stage, although a worsening of defaults is anticipated.

Furthermore, owing to the uncertainty surrounding the potential impact of the ongoing pandemic in the financial sector, the BdP recommended, in December 2020, that less significant institutions and investment firms must refrain from making or limiting dividend distributions or repurchases of ordinary shares until 31 September 2021. This recommendation is in line with the approach set by the European Central Bank for significant institutions in the context of the Single Supervisory Mechanism. By the same token, the BdP's recommendation that Portuguese credit institutions shall apply a more restrictive set of measures in respect of the attribution and payment of variable remuneration has now been extended for the same period of time.

However, on 24 September 2021, the BdP announced that these recommendations would not be extended beyond their expiry date (31 September 2021), in line with the approach adopted by the European Central Bank for significant institutions in the context of the Single Supervisory Mechanism and by the European Systemic Risk Board.

Nevertheless, in this statement the BdP also stated that, in any case, it is crucial that institutions maintain a prudent approach to the distribution of dividends and the attribution and payment of variable remuneration, as deriving from the applicable legislation and regulations and taking into account the impacts arising from the pandemic that may still materialise, namely those relating to credit risks.


1 Hélder Frias is a counsel and Sofia Santos Júnior is a junior associate at Uría Menéndez - Proença de Carvalho.

2 Reference date June 2021.

3 Idem.

4 Idem.

5 DL 446/85 has been amended, inter alia, by Decree-Law No. 220/95 of 31 August as a result of Directive 93/13/EEC of the Council of 5 April on unfair terms in consumer contracts.

6 Reference date December 2021.

7 This measure introduced limits to some of the criteria used by credit institutions in the consumers' creditworthiness assessment within the scope of credit relating to residential immovable property, credit secured by a mortgage or equivalent guarantee, and consumer credit.

8 Reference dates September 2021/October 2020.

9 EBA/GL/2020/02, of 2 April 2020, as amended.

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