{"id":5555,"date":"2018-09-10T10:14:34","date_gmt":"2018-09-10T10:14:34","guid":{"rendered":"https:\/\/mgra.pt\/?p=5555\/"},"modified":"2020-10-05T18:50:58","modified_gmt":"2020-10-05T18:50:58","slug":"jurisprudencia_08-2018-2","status":"publish","type":"post","link":"https:\/\/e-legal-blawg.com\/en\/2018\/09\/10\/jurisprudencia_08-2018-2\/","title":{"rendered":"CASE-LAW – AUGUST 2018"},"content":{"rendered":"

III.<\/strong>CASE- LAW
\n<\/strong>III.1. Court of Justice of the European Union<\/strong><\/p>\n

Judgment of the Court of 7 august, Joined Cases C<\/strong>\u2011<\/strong>96\/16 and C<\/strong>\u2011<\/strong>94\/17: <\/strong>Reference for a preliminary ruling. Directive 93\/13\/EEC. Unfair terms. Scope. Assignment of debts. Loan agreement concluded with a consumer. Criteria for assessing the unfairness of a contractual term setting the default interest rate. Consequences of that unfairness.
\nSummary:
\n<\/u><\/strong>\u201cCouncil Directive 93\/13\/EEC of 5\u00a0April 1993 on unfair terms in consumer contracts, must be interpreted, first, as not applying to a business practice consisting in assigning or purchasing a consumer\u2019s debt, without any provision for such an assignment having been made in the loan agreement concluded with the consumer, without giving the consumer prior notice of that assignment, without his consent and without giving him the opportunity to buy back and thereby extinguish his debt by reimbursing to the assignee the price it paid in respect of that assignment, plus the applicable interest, expenses and costs. Secondly, that directive does not apply to national provisions, such as those contained in Article\u00a01535 of the C\u00f3digo Civil (Civil Code) and Articles\u00a017 and 540 of Ley 1\/2000 de Enjuiciamiento Civil (Civil Procedure Code) of 7\u00a0January 2000, which regulate that opportunity to buy back a debt and govern the replacement of the assignor by the assignee in ongoing proceedings.<\/em><\/p>\n

Directive 93\/13 must be interpreted as not precluding national case-law, such as that of the Tribunal Supremo (Supreme Court, Spain) at issue in the main proceedings, whereby, in a loan agreement concluded with a consumer, a non-negotiated term fixing the default interest rate applicable is unfair, on the ground that the consumer who is late performing his payment obligation is required to pay a disproportionately high sum in compensation, where that rate exceeds by more than two percentage points the ordinary interest rate provided for in that agreement.<\/em><\/p>\n

Directive 93\/13 must be interpreted as not precluding national case-law, such as that of the Tribunal Supremo (Supreme Court) at issue in the main proceedings, whereby the consequence of the unfairness of a non-negotiated term fixing the default interest rate in a loan agreement concluded with a consumer consists in the complete elimination of that interest, while the ordinary interest provided for in that agreement continues to run.\u201d
\n<\/em>https:\/\/eur-lex.europa.eu\/legal-content\/EN\/TXT\/HTML\/?uri=CELEX:62016CJ0096&from=PT\u00a0<\/a><\/p>\n

Judgment of the Court of 7 August, Case C<\/strong>\u2011<\/strong>16\/17: <\/strong>Reference for a preliminary ruling. Value added tax (VAT). Deduction of input tax. Origin and scope of the right to deduct.
\nSummary:
\n<\/u><\/strong>\u201cArticles 167 and 168 of Council Directive 2006\/112\/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010\/45\/EU of 13 July 2010, and the principle of neutrality must be interpreted as precluding the tax authority of a Member State from regarding a company which has its headquarters in another Member State and the branch which it has in the first of those States as constituting two separate taxable entities on the ground that each of those entities has a tax identification number, and, for that reason, from refusing that branch the right to deduct value added tax (VAT) on the debit notes issued by an economic interest group of which that company, and not its branch, is a member.\u201d
\n<\/em>https:\/\/eur-lex.europa.eu\/legal-content\/EN\/TXT\/HTML\/?uri=CELEX:62017CJ0016&from=PT\u00a0\u00a0<\/a><\/p>\n

 <\/p>\n

III.2. Constitutional Court<\/strong><\/p>\n

Judgment of the Constitutional Court No. 420\/2018 of August 9, Case No. 731\/2018: <\/strong>The Court decides by the unconstitutionality of the rule contained in Article 2 of the Regional Legislative Decree entitled “Bylaws of the Fire Brigade of the Autonomous Region of Madeira”, in so far as it amends the wording of Article 6 of Regional Legislative Decree no. 21\/2010\/M of August 20, amended by Regional Legislative Decree no. 12\/2016\/M, of March 10, approved by the Legislative Assembly of the Autonomous Region of Madeira, in a plenary session on July 5 2018, as defined in II, B), 8, which was sent to the Representative of the Republic for the Autonomous Region of Madeira for signature as a regional legislative decree, for violation of paragraph q) of the paragraphs 1 of Articles 227 and 228, all of the Constitution of the Portuguese Republic.
\nhttp:\/\/www.tribunalconstitucional.pt\/tc\/acordaos\/20180420.html<\/a><\/u><\/p>\n

 <\/p>\n

III.3. Courts of Justice<\/strong><\/p>\n

Judgment of the Lisbon Appeal Court, of July 12, 2018, Case No. 82328\/14.0YIPRT.L2-2: <\/strong>E-mails. Value as a proof. General contractual clauses. Default.
\nhttp:\/\/www.dgsi.pt\/jtrl.nsf\/33182fc732316039802565fa00497eec\/04824ed31187aa9a802582dc004de283?OpenDocument<\/a><\/p>\n

\u00a0<\/strong><\/p>\n

III.4. Administrative and Tax Courts<\/strong><\/p>\n

Judgement of the South-Central Administrative Court of August 6, Case No. 1179\/17.8BELSB:<\/strong> Invalidly of Decision. First call bank guarantee. Blatant abuse or fraud. Good faith. Prescription of the guarantee. Start of the prescription period. Inaction of the creditor.
\nhttp:\/\/www.dgsi.pt\/jtca.nsf\/170589492546a7fb802575c3004c6d7d\/32710d8449af95d5802582e500319542?OpenDocument <\/a><\/p>\n

Judgement of the South-Central Administrative Court of August 6, Case No. 788\/18.2BELSB:<\/strong> violation of the adversarial principle. Invalidly of Decision. Extradition. Appreciation by administrative courts. Suspension of effectiveness. Absolute incompetence.
\nhttp:\/\/www.dgsi.pt\/jtca.nsf\/170589492546a7fb802575c3004c6d7d\/5a931812d043da1d802582e50038f76c?OpenDocument <\/a><\/p>\n

 <\/p>\n<\/div><\/div><\/div>

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