CASE LAW – December 2016

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III.1. Court of Justice of the European Union

Judgment of the Court of 14 December 2016, Case C 238/15: Reference for a preliminary ruling – Free movement of persons – Equal treatment – Social advantages – Regulation (EU) No 492/2011 – Article 7 Paragraph 2 – Financial aid for higher education – Requirement for students not residing in the territory of the Member State concerned to be the children of workers who have been employed or have pursued their professional activity in that Member State for an uninterrupted period of at least , Five years – Indirect discrimination – Justification – Objective to increase the proportion of resident persons holding a higher education diploma – Appropriate nature – Proportionality.


“Article 7 (2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union must be interpreted preclude legislation of a Member State, such as that at issue in the main proceedings, which makes financial assistance for higher education subject to non-resident students subject to the requirement that at least one of Been employed in that Member State for a minimum and uninterrupted period of five years at the time of submission of the application for financial aid, but does not provide for such a requirement for students residing in the territory of that Member State, in order to encourage an increase the proportion of Residents holding a higher education diploma”

Judgment of the Court of 21 December 2016, Case C 618/15: Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Jurisdiction — Tort, delict or quasi-delict — Selective distribution network — Prohibition on online resale outside a network — Action for an injunction prohibiting unlawful interference — Connecting factor


“Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted, for the purpose of conferring the jurisdiction given by that provision to hear an action to establish liability for infringement of the prohibition on resale outside a selective distribution network resulting from offers, on websites operated in various Member States, of products covered by that network, as meaning that the place where the damage occurred is to be regarded as the territory of the Member State which protects the prohibition on resale by means of the action at issue, a territory on which the appellant alleges to have suffered a reduction in its sales.”

III.2. Constitutional Court

Judgment nº 675/2016, Case no. 352/16: Declares unconstitutional the norm extracted from paragraphs 4 and 5 of article 46 of the Sanctioning System of the Energy Sector, approved by Law no. 9/2013, of January 28, in the interpretation according to which the appeal that the objection Judicial decision of the final judgment of the Regulatory Entity of Energy Services in the process of miscontrol has, as a rule, a purely devolutive effect, being the granting of suspensive effect dependent on the provision of security and verification of considerable damage to the Applicant arising from the execution of the decision.

Judgment nº 674/2016, Case No 206/16: Declares unconstitutional the rule wish establishes that the judicial challenge to decisions of the Competition Authority imposing a fine has, as a rule, a devolutive effect, and can only be granted suspensory effect where the execution of the decision causes considerable damage to the applicant and the Its replacement, within a period fixed by the court, regardless of its economic availability, interpretatively extractable from paragraphs 4 and 5 of article 84 of Law no. 19/2012, of May 8.

III.3. Judicial Courts:

Judgment of the Court of Appeal Porto of December 5, Case No. 406 / 14. 4TBMI. P1: Role of the Notary. Non-contractual liability. Causality Nexus. Invitation to Improvement.


“It is consecrated among us the so-called Latin notary system or model, where in the light of this system, the notary is a jurist in the service of legal-private relations responsible for receiving, interpreting and giving legal form to the will of the parties, writing the appropriate instruments for this purpose, but at the same time is a public official who receives Delegation of public authority to draw up authentic documents with public faith.

Between the notary and the parties, no negotiable relationship is established, and any liability in the performance of his duties will assume a non-contractual nature.

The function of a notary is not to give faith to all that he sees or hears, whether valid or null, but to give faith in accordance with the law, being therefore responsible for checking the legality of the business, aiming, in particular, detecting disabilities, legal or de facto errors, covert coercions, fraudulent lawsuits, and, possibly, mental reservations and simulations, absolute or relative.

The notary, as legal operator, of the law and the will of the parties, can not refuse to intervene based on the revocability or ineffectiveness of the act, however, due to the provisions of paragraph 3 of art. 11 of Decree-Law no. 26/2004, of February 4, warn the interested parties of the existence of the addiction and record in the instrument the warning made.

The aforementioned legislation assumes the nature of a protection rule, since – by imposing on the notary (the “adviser” of the parties) the duty to warn the parties of any addiction that may, to some extent, condition the manifestation of their negotiating will – Aims to protect the interests of the latter, hindering the practice of an act that may prove to be patrimonially harmful.

The fact that he acted as a condition of the damage will only cease to be considered as an adequate cause if, given his general nature, he is indifferent to the verification of the damage, provoked only by virtue of exceptional, abnormal, extraordinary or Anomalies that intercede in the concrete case.

The strict compliance of the functional power established in paragraph b) of no. 2 of Article 590 of the Code of Civil Procedure implies that the court can not refuse to address the request to improve the pleadings that prove defective and, later (in the sanitizing order or in the final sentence), consider the application of the party dismissed precisely for the lack of fact Which the party could have claimed had it been asked to improve its wording.

Immediate knowledge of merit is only made in the sanctioning order if the process enables such knowledge, which does not occur if there are controversial facts that may be relevant, according to other equally plausible solutions to the question of law.

Judgment of the Court of Appeal of Coimbra of December 12, Case No. 1638 / 11. 6TBACB. C1: Consumer. Legal Concept. Defects. Responsibility.  Seller. Consumer rights.


“It is ‘consumer’, even considering its restricted concept, the one that destines the acquired predominantly to its” personal, familiar or domestic use “, being merely instrumental or accidental its use for professional use.

The portuguese legislator did not establish, in Article 4 of the aforementioned decree, any hierarchy in the rights granted to the consumer, having set aside the right to the replacement of conformity without charge, through repair or replacement, The rights to reduce the price or to terminate the contract. However, while stating that the consumer is entitled to exercise any of the rights referred to above, he did not fail to take into account cases in which it is impossible or constitute an abuse of rights in general terms (paragraphs 1 and 5), abuse of Right that functions here as the limiting criterion of that exercise. The consumer does not act in abuse of right that after having delivered the vehicle for repair at least 7 times, faced with the maintenance of the anomalies, institute action against the seller, requesting it to terminate the Purchase and Sale Agreement.”

III.4. Administrative and Tax Courts

Judgment of the Supreme Administrative Court, dated on 07.12.2016, Case No. 0697/14:

Action for recognition of rights. Non Aedificandi Area. Law enforcement in time.


Law 13/85, dated 6/07, which, in its Article 23 (3), provided to the property owners in “non aedificandi” areas for the protection of classified goods, the right to require the State their expropriation, was revoked by Law no. 107/2001 of 8/09, which replaced the existing legal regime with a more demanding one or with more onerous requirements.

The rule of Law no. 107/2001 which provided for the content of administrative easement already constituted on the date of its beginning, shaping the rights of the owners covered by the “non aedificandi” zones, abstracting the facts that gave rise to it, is Applicable to all servitudes that subsisted when it came into force.

It can not proceed to a legal action for the recognition of a right on 05/28/2003, where is requested the conviction of the R., pursuant to Article 23 (3) of Law 13 / 85, to issue an order declaring the public utility of the expropriation of a rustic building partly included in a “non aedificandi” zone of protection to the “Eneolítica de Leceia”, since AA. Are not entitled to an acquired right under that law which is not susceptible to prejudice by subsequent non-retractive legislative changes. “

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