3. Trends and Specific Cases

As referred, a special judicial procedure has been in force for over three years now in Portugal aimed at repressing the misuse of the independent contractor options, as a way of gaining full flexibility and cost reduction with the workforce component in businesses. A number of procedural issues have been discussed in courts around the provisions that govern these special procedures, considering that there was no judicial precedent for the type of judicial proceeding wherein, the independent contractor may actually choose not to even intervene in the lawsuit and trial, that may cause a contractual relationship of which he is a party to be re-qualified. Different understandings on whether the interests at stake in such lawsuits were limited to the directly interested party’s interests (and therefore, on whether settlements confirming the independent nature of the relationship were allowed, as they would be in a normal declaratory lawsuit initiated by the independent contractor against the company) or, if on the contrary, such lawsuits involved public interest issues, and settlements between the parties on the contract qualification were restricted to the possibility of agreeing on its qualification as an employment agreement. The tendency of high court decisions was one point of consideration that the procedure entails public interest issues.

Attempts to launch legislative proposals to broaden the scope of this type of judicial measures, namely to other types of contractual structures and to public entity recruitment have been prepared, but seem not to have collected sufficient consensus to proceed, and to be proposed and discussed further.