Reforms For 2009
The topic of the congress of the solicitadores was: “Solicitadores, justice and citizenship in times of changes” while the European applicants Congress discussed the topic: “Justice, an open market? The dangers of free competition”.
Were present in particular the UIHJ, represented by its president, Jacques Isnard, Juan Carlos Estevez, president of the General Council of Spanish Procuradores, François Grandsard, president of the Chamber of the French avoués, and Joaoa Tiago da Silveira, Secretary of State for justice, representing the Minister for justice of Portugal. Approximately 300 Portuguese solicitadores also took part in these days of reflection and work.
This congress was marked by the next legislative reforms concerning the professionals of the law not only in Portugal but also in all Europe.
In his solemn opening speech of the congress, the president of the Chamber of the solicitadores, Antonio Gomes da Cunha, presented the legislative reforms which are announced for 2009 in Portugal. These reforms relate to at the same time the profession of Solicitador “general practitioner” and that of Enforcement Solicitador. The president of the Chamber of solicitadores thus insisted on the fact that the solicitadores were to find new ways and new solutions to adapt to these changes. The Portuguese government, via its Secretary of State for justice, Joao Tiago da Silveira, launched several challenges to the solicitadores which will condition their commune activity. These legislative reforms made the object of various work and topics which were approached and studied at the time of these two days.
Concerning the legislative reforms relating to the profession of “general practitioner” Solicitador, he first of all agrees to recall that the Portuguese government set up a program called “Simplex” which makes it possible to proceed to various legislative reforms in various fields in order to reduce the Portuguese bureaucracy which is very heavy. Various reforms in various fields are already coming into effect, in particular by the Order n°116-2008 of July 4th, 2008. Within the framework of this program Solicitadores will receive new competences relating to the dematerialization of the acts. They will be able to write all kinds of contracts (out of civil, commercial matters or relating to immovable goods), to authenticate these acts and to proceed to all additional formalities such as payment of taxes, all via Internet, from their offices. Solicitadores thus will have direct access to different databases, such as those of the Treasury or finances. This program is known as the “Single Balcony”. The responsibility of Solicitadores will be increased since they will have to check and control the legality of the acts and contracts which they will carry out. They will have to be equipped with new computer tools and new software which will enable them to exert these new functions with all the expected effectiveness. It was not decided yet if the Chamber of the solicitadores placed at the disposal of its members these computer tools or if the Solicitadores were to invest themselves in this new technology.
Regarding legislative reforms relating to the profession of Enforcement Solicitador, it is appropriate to recall that this profession was created in Portugal in 2003 on the model of the French judicial officer. Actually, it is not a question of an autonomous profession but rather of a specialty of the profession of Solicitador. The Enforcement Solicitador is at the same time a “general practitioner” Solicitador, namely a legal agent. Five years after creation of this specialization, and always within the framework of the “Simplex” program, the Government envisages the coming into effect on March 31st, 2009 of a new reform of distraint which will deeply modify the exercise of this specialty. This reform was authorized by the bill n°18/2008 of April 21st, 2008. Thus, certain seizures, such as the seizure of property, the attachment on bank accounts or the seizure of motor vehicles will be able (and some are already operational), to take place via Internet. The enforcement warrant which allows the enforcement Solicitador to carry out the distraint will be returned to the court and the enforcement court via Internet. Forced enforcement will be able to be set up automatically without enforcement warrant, in the case of enforcement of court orders. The role of the enforcement judge will be reduced since it will intervene mainly in the event of opposition. Enforcement Solicitador will not have to send any more to the court every month summaries of the acts carried out. Lastly, Enforcement Solicitador will have direct access to certain databases (such as Social security, the Treasury, vehicle registers, enforcement registers concerning enforcement in progress against the debtors, etc).
Concerns of the Solicitadores Regarding the Reforms
In his opening speech, the president of the Chamber of the solicitadores also did not fail to announce his concern regarding these reforms which will come into effect in 2009 and which will unquestionably call into question the very existence of the profession of Solicitador. Concerning new competences of the “general practitioners” Solicitadores, they will be divided with lawyers, notaries and even the public administration. The solicitadores will be thus in direct competition with the other professionals of the law and the State. Concerning the reform of enforcement, the solicitadores will lose the monopoly of enforcement. This one will also be exerted by lawyers, who will be able simultaneously to carry out seizures and the forced enforcement of legal titles, and by the arbitrary courts (which are not created yet), which will be able to also carry out enforcement as well as Enforcement Solicitadores, if the creditor decided so. In addition, creditors will be able to change freely from one enforcement agent to another without the intervention of the judge. So the enforcement solicitadores will become enforcement agents, a new professional field which could be exerted by the three various categories of auxiliaries of justice (arbitrary solicitadores, lawyers and courts). This is why the legislative reform which will come into effect in 2009 also envisages modifications as for the statute of solicitadores and lawyers.
The 4th congress of the Portuguese solicitadores was marked by the study, the reflection and the inevitable concern of all Solicitadores regarding all the reforms which will come into effect in 2009. Concerning enforcement they seriously and unquestionably call into question the independence of the future Portuguese judicial officer, guarantees of the independence of justice.
The 9th congress of the European applicants was marked by the advertisement of the removal of the French “avoués” near Courts of Appeals and the president of the Chamber of Solicitadores expressed his solidarity with this profession.
This international congress was completed by a happier event for all the participants and by a sign of hope and change. It is indeed under the applause of all the assembly that the president of the Chamber of the solicitadores gave to the president of the General Council of Spanish Procuradores, D. Juan Carlos Estevez, the title of President of the congress of the European applicants.
