III. CASE-LAW

III.1. Court of Justice of the European Union

Judgment of the Court (Sixth Chamber), of 20 April 2023, Joined Cases C 775/21 and C 826/21: Reference for a preliminary ruling. Intellectual property. Copyright and related rights. Directive 2001/29/EC. Article 3(1). Communication to the public. Concept. Broadcasting of background music. Directive 2006/115/EC. Article 8(2). Equitable remuneration. Mere provision of physical facilities. Sound equipment on board trains and aircraft. Presumption of communication to the public.

Summary:

” 1. Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the broadcasting, in a means of passenger transport, of a musical work as background music constitutes a communication to the public within the meaning of that provision.

2. Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that the installation, on board a means of transport, of sound equipment, and, where appropriate, of software enabling the broadcasting of background music, does not constitute a communication to the public within the meaning of those provisions.

3. Article 8(2) of Directive 2006/115 must be interpreted as precluding national legislation, as interpreted by the national courts, which establishes a rebuttable presumption that musical works are communicated to the public because of the presence of sound systems in means of transport.“.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62021CJ0775

Judgment of the Court (Ninth Chamber), of 20 April 2023, Case No. C 263/22: Reference for a preliminary ruling. Unfair terms in consumer contracts. Directive 93/13/EEC. Articles 3 to 6. Criteria for assessing the unfairness of a contractual term. Requirement of transparency. Group insurance contract. Permanent invalidity of the consumer. Duty to provide information. Non-disclosure of a term limiting or excluding cover against the insured risk.

Summary:

“1. Article 4(2) and Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of the 20th recital of that directive, must be interpreted as meaning that a consumer must always be afforded the opportunity, before the conclusion of a contract, to become acquainted with all the terms that the latter contract contains.

2. Article 3(1) and Articles 4 to 6 of Directive 93/13 must be interpreted as meaning that where a term of an insurance contract relating to the exclusion or limitation of cover against the insured risk, with which the consumer concerned could not have become acquainted prior to the conclusion of that contract, is found to be unfair by the national court, that court is required to exclude the application of that term in order that it may not produce binding effects with regard to that consumer.“.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62022CN0263

III.2. Constitutional Court

Judgment of the Constitutional Court no. 197/2023, of April 18, Case no. 401/2020:

“For the above reasons, the Constitutional Court decides:

a) To declare the unconstitutionality, with mandatory general force, of the rules contained in nos. 4 and 5 of article 2 of Law no. 81/2014, of 19 December, as amended by Law no. 32/2016, of 24 August, for violation of the provisions of no. 5 of article 112 of the Constitution; b) Not to take cognisance, due to supervening uselessness, of the request for appraisal and declaration of unconstitutionality, with mandatory general force, of the regulatory legal norm, contained in Article 15, no. 1, paragraph b), of the Regulation of the Regime for Access, Allocation and Management of the Housing Park of Tavira Municipality, revoked in the meantime; and c) In accordance with Article 282(4) of the Constitution, for reasons of legal certainty, to exclude the effects produced until the publication of the Judgement in the Diário da República by the rules declared unconstitutional in sub-paragraph a).”.

http://www.tribunalconstitucional.pt/tc/acordaos/20230197.html

III.3. Judicial Courts

Judgment of the Supreme Court of Justice of April 13, Case no. 23707/19.4T8LSB.L1.S1: Non-contractual liability. Damage caused by things or activities. Presumption of fault. Causal link. Burden of proof. Autonomous fraction. Flooding.

Summary:

“I – First paragraph of Article 493 of the Civil Code enshrines a presumption of guilt as to damage caused by things, whether movable or immovable, which falls on those who have the duty to monitor their condition so that they do not cause damage to third parties;

II – However, it is up to the plaintiff to prove the occurrence of the damage and the causal connection between it and the thing subject to surveillance;

III – Therefore, and despite the presumption of guilt of first paragraph of article 493, if the plaintiff was unable to prove that the damage to its apartment was caused by the works carried out in the defendant’s apartment, the action for compensation is doomed to failure“.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/e336b3ec9e355b8680258990005aa793?OpenDocument

Judgment of the Supreme Court of Justice, of April 18, Case No. 3947/08.2TJCBR-AY.C1.S1: Insolvency Administrator. Remuneration. Determination of value. Claims. Community directive. Admissibility of appeal. Opposition of judgments. Insolvency.

Summary:

“I- When calculating the increase of the remuneration of the insolvency administrator, the amount of 5% referred to in seventh paragraph of article 23 of the “EAJ”, as amended by Law no. 9/2022, does not have as object the total amount ascertained for the satisfaction of claims (the amount ascertained after extracting the portion corresponding to the percentage of the variable remuneration provided for in paragraphs 4 and 6 of article 23).

II- This percentage of 5% falls on the result of a previous arithmetic operation intended to ascertain the “degree of satisfaction of the credits claimed and admitted“.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/f34907e46eeccf1680258996002ab8f1?OpenDocument

Judgment of the Lisbon Court of Appeal of April 20, Case no. 290/22.8T8AGH-A.L1-2: Exoneration of the remaining liability. Mortgage enforcement. Third-party guarantors.

Summary:

Judgment of the Supreme Administrative Court of April 12, Case no. 0814/20.5BEALM: Subsoil occupancy rate. Repercussion.

Summary:

“I – Since the third paragraph of article 85, of the” LOE2017” expressly, directly, clearly and unconditionally prohibits the repercussion of the “TOS” in the consumers’ bill there is no basis for the conclusion that this non norm should not be recognized full effectiveness as of 2017, that is, it must be concluded that the norm whose effectiveness we have endorsed has produced effects since 1-1-2017.

II – In the factual and legal context that emerges from the case records, it is to be considered that the Defendant is integrated in the concept of services in article 43 of the “LGT”, for which the Appellant has the right to recover what was illegally demanded of it and paid, as well as the right to receive the value corresponding to compensatory interest, calculated at the rate of 4% from the date on which the undue payment was made until effective and full reimbursement“.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/d3655b2a2576127b80258991004bedcb?OpenDocument&ExpandSection=1#_Section1

Judgment of the Southern Central Administrative Court, April 13, Case no. 42/09.0 BESNT: Liability. Requirements. Concurrence of faults.

Summary:

“I – For there to be, under the terms of Decree-Law 48051, of 21 November 1967, liability and the obligation to indemnify, the following cumulative assumptions must be verified: the fact – act of positive or negative content translated into a voluntary conduct of an organ or agent, in the exercise of his functions and because of them; the illicitness – violation by that fact, of the rights of third parties or of legal provisions that are intended to protect the interests of others; guilt – ethical-legal nexus that links the fact to the will of the agent, by way of malice or negligence; damage – injury or damage of patrimonial or non-patrimonial value, produced in the sphere of third parties; and the causal nexus between the fact and the damage;

II – Even if these presuppositions are verified, if an act of fault on the part of the injured party has contributed to the production or aggravation of the damage, it is up to the court to determine, based on the gravity of the faults of both parties and the consequences resulting therefrom, if the compensation should be awarded in full, reduced or even excluded, the fault of the legal representatives being considered equivalent to the fault of the injured party (first paragraph of Articles 570 and  571 of the Civil Code);

III – The issuing of a certificate by a Town Hall official, certifying the existence of utilisation permit no. 701/84 for the building in question, when only a building permit with that number existed, regardless of the fact that it may have been an oversight, constitutes a serious and relevant fact capable of substantiating the duty to indemnify

IV – The reference in the sale and purchase contracts of fractions of that building to the utilisation licence number 701/84, led the A. to assume that she could use them for the respective purposes;

V – At the beginning of 2007, the plaintiff negotiated the renting of the ground floor coffee shop for the monthly price of 600.00 and for a period of 10 years, but then became aware that the respective utilisation licence was inexistent, which made it impossible to sign the corresponding contract;

VI – In accordance with the provisions of articles 62 to 66, that constitute Subsection IV – Use of buildings or their fractions, of the Legal Regime of Urbanisation and Building, approved by Decree-Law no. 555/99, of 16 December, in the wording in force on the date of the facts, it is the responsibility of the private individual interested in obtaining a utilisation licence for a building or its fractions to apply to the competent municipal authority for its grant and initiate the administrative procedure with a view to verifying that the legal and urban planning conditions for the effect are met, if necessary ordering an inspection of the building or fraction(s) to be licensed, which will culminate, or not, in its attribution, permitting, if granted, the respective licence to be applied for;

VII – Therefore, if A. intended to rent the shop and/or use the other fractions owned by her, she should have requested the issue of the respective licences for use from the relevant Council services, which she failed to do, making her liable for any damages that occurred thereafter”.

III.4. Administrative and Tax Courts

Judgment of the Supreme Administrative Court of April 12, Case no. 0814/20.5BEALM: Subsoil occupancy rate. Repercussion.

Summary:

“I – Since the third paragraph of article 85, of the” LOE2017” expressly, directly, clearly and unconditionally prohibits the repercussion of the “TOS” in the consumers’ bill there is no basis for the conclusion that this non norm should not be recognized full effectiveness as of 2017, that is, it must be concluded that the norm whose effectiveness we have endorsed has produced effects since 1-1-2017.

II – In the factual and legal context that emerges from the case records, it is to be considered that the Defendant is integrated in the concept of services in article 43 of the “LGT”, for which the Appellant has the right to recover what was illegally demanded of it and paid, as well as the right to receive the value corresponding to compensatory interest, calculated at the rate of 4% from the date on which the undue payment was made until effective and full reimbursement“.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/d3655b2a2576127b80258991004bedcb?OpenDocument&ExpandSection=1#_Section1

Judgment of the Southern Central Administrative Court, April 13, Case no. 42/09.0 BESNT: Liability. Requirements. Concurrence of faults.

Summary:

“I – For there to be, under the terms of Decree-Law 48051, of 21 November 1967, liability and the obligation to indemnify, the following cumulative assumptions must be verified: the fact – act of positive or negative content translated into a voluntary conduct of an organ or agent, in the exercise of his functions and because of them; the illicitness – violation by that fact, of the rights of third parties or of legal provisions that are intended to protect the interests of others; guilt – ethical-legal nexus that links the fact to the will of the agent, by way of malice or negligence; damage – injury or damage of patrimonial or non-patrimonial value, produced in the sphere of third parties; and the causal nexus between the fact and the damage;

II – Even if these presuppositions are verified, if an act of fault on the part of the injured party has contributed to the production or aggravation of the damage, it is up to the court to determine, based on the gravity of the faults of both parties and the consequences resulting therefrom, if the compensation should be awarded in full, reduced or even excluded, the fault of the legal representatives being considered equivalent to the fault of the injured party (first paragraph of Articles 570 and  571 of the Civil Code);

III – The issuing of a certificate by a Town Hall official, certifying the existence of utilisation permit no. 701/84 for the building in question, when only a building permit with that number existed, regardless of the fact that it may have been an oversight, constitutes a serious and relevant fact capable of substantiating the duty to indemnify

IV – The reference in the sale and purchase contracts of fractions of that building to the utilisation licence number 701/84, led the A. to assume that she could use them for the respective purposes;

V – At the beginning of 2007, the plaintiff negotiated the renting of the ground floor coffee shop for the monthly price of 600.00 and for a period of 10 years, but then became aware that the respective utilisation licence was inexistent, which made it impossible to sign the corresponding contract;

VI – In accordance with the provisions of articles 62 to 66, that constitute Subsection IV – Use of buildings or their fractions, of the Legal Regime of Urbanisation and Building, approved by Decree-Law no. 555/99, of 16 December, in the wording in force on the date of the facts, it is the responsibility of the private individual interested in obtaining a utilisation licence for a building or its fractions to apply to the competent municipal authority for its grant and initiate the administrative procedure with a view to verifying that the legal and urban planning conditions for the effect are met, if necessary ordering an inspection of the building or fraction(s) to be licensed, which will culminate, or not, in its attribution, permitting, if granted, the respective licence to be applied for;

VII – Therefore, if A. intended to rent the shop and/or use the other fractions owned by her, she should have requested the issue of the respective licences for use from the relevant Council services, which she failed to do, making her liable for any damages that occurred thereafter”.