In brief: The Lisbon Court of Appeal held that the forty-five day period for bringing the classification incident runs from the judgment declaring insolvency, and not from the order completing it. The effect was drastic: the incident was held out of time and all subsequent steps were annulled, including the judgment that had already classified the insolvency as culpable. Insolvency administrators and creditors seeking to have directors affected must count the period from the original judgment, without awaiting the outcome of completion.
What was at stake
Insolvency had been declared with a limited classification incident. Completion of the judgment was then sought and granted under article 39(2)(a) of the Insolvency Code, converting the incident into a full one. Facts tending to classification as culpable having been pleaded, the question arose as to the starting point of the forty-five day period in article 191(1)(a): the judgment declaring insolvency or the order granting completion.
The decision
The court held that the starting point is the judgment declaring insolvency handed down under article 39(1). The period is procedural and peremptory, so it is measured by the Insolvency Code and, in the alternative, by the Code of Civil Procedure under article 17(1). And the conversion of a limited incident into a full one occurs only when completion is considered and granted, not when it is merely sought, so that until then the only relevant decision remains the original judgment.
The procedural consequence
The incident was declared out of time and all subsequent steps were annulled. That includes the very judgment which had already classified the insolvency as culpable and which, on the substance, may well have been well founded. It was lost on the counting of a period, not on the merits.
Why this is easy to get wrong
The trap lies in the appearance of continuity. Anyone seeking completion tends to read the order granting it as the moment when the full incident is born and therefore as the moment from which pleading becomes possible. The reading is intuitive but is not the law’s: completion forms part of the judgment, it neither replaces it nor moves it in time. Weeks may pass between the request for completion and its grant, and it is precisely in that interval that the period is consumed without anyone noticing.
Who needs to bear this in mind
First the insolvency administrator, who is responsible for the opinion, but also creditors seeking to have de jure or de facto directors affected by the classification, with the disqualifications and the duty to compensate that follow. And, on the other side, the directors themselves and their defence: the lateness of the incident is a point to raise at once, and it may dispense with the whole substantive argument.
What to do in practice
The operational rule is simple: count the forty-five days from the date of the judgment declaring insolvency, always, and diarise that date on the very day the judgment is served. If completion is sought, do not treat it as restarting the clock; if necessary, plead the facts within the original period and ask that they be considered once completion is granted, rather than waiting. For the defence, the first exercise when faced with a classification incident is arithmetical: check the date of the judgment, the date the incident was brought, and count. Lisbon Court of Appeal, case 4060/25.3T8SNT-A.L1-1, 14-07-2026, reporting judge Ana Rute Costa Pereira.
The full newsletter
This note forms part of the edition of 18 September 2026 of the firm’s biweekly newsletter, with thirty-two items in Portuguese and English. The full document, on letterhead, is available here.
This note is provided for information purposes only and does not constitute legal advice. Concrete solutions depend on the facts of each case and on the regime applicable at the time. For specific questions, please consult a lawyer.