CASE-LAW – September 2016

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III. CASE-LAW

III.1. Court of Justice of the European Union

Judgment of the Court, of 22th September 2016, Case C-110/15: Request for a Preliminary ruling – Approximation of the legislations — Intellectual property — Copyright and related rights — Directive 2001/29/EC — Exclusive right of reproduction — Exceptions and limitations — Article 5(2)(b) — Private copying exception — Fair compensation — Conclusion of agreements governed by private law to determine the criteria for exemption from payment of fair compensation — Request for reimbursement of compensation confined to the final user.

Summary:

EU law, in particular, Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the society, must be interpreted in opposition to the national legislation, such as the one in the main proceedings, that, in one hand, subjects exemption from payment of the private copying levy for producers and importers of devices and media intended for use clearly unrelated to private copying to the conclusion of agreements between an entity which has a legal monopoly on the representation of the interests of authors of works, and those liable to pay compensation, or their trade associations, and, on the other hand, declare that the reimbursement of such levy, when it has been unduly paid, may be requested only by the final user of those devices and media

http://eur-lex.europa.eu/legal-content/PT/TXT/?qid=1475257473508&uri=CELEX:62015CJ0110

Judgment of the Court, of 13th September 2016, Case C-304/14: Preliminary ruling — Citizenship of the Union — Article 20 TFEU — Third-country national having a young dependent child who is a Union citizen — Right to reside in the Member State of which the child is a national — Criminal convictions of the child’s parent — Decision to expel the parent resulting in the indirect expulsion of the child concerned 

Summary:

Article 20 TFEU must be interpreted in opposition to the legislation of a Member State which imposes that a national who has been convicted of a criminal offence to be expelled from the territory of his/her Member State to a third country notwithstanding the fact that the national is the mother/father of a young child who is a national of that Member State, in which he has been residing since birth without having exercised his/her right of movement freedom, when the expulsion of the person concerned would require the child to leave the territory of the European Union, thereby depriving him of the genuine enjoyment of the substance of his rights as a Union citizen. However, in exceptional circumstances, a Member State may adopt an expulsion measure founded on the personal conduct of that national, which must constitute a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of that Member State, and that it is based on consideration of the various interests involved, matter that will be determined by the national court.

http://eur-lex.europa.eu/legal-content/PT/TXT/?qid=1475257473508&uri=CELEX:62015CJ0110

III.2. Constitucional Court

Judgment No. 461/2016, Case No. 507/15: Does not declare unconstitutional the rule of the article 564 nº2 of the Labour Code, approved by the Ordinance n.º 7/2009 of 12th February bound to the interpretation that grants to an administrative entity, in the infringement procedure and with the application of a fine, the statutory authority to issue a payment order of the employee quantitative in debt.

http://www.tribunalconstitucional.pt/tc/acordaos/20160510.html 

III.3. Courts of Justice

Judgment of Supreme Court of Justice of 08th September 2016, Case No. 1952/13.6TBPVZ.P1.S1: non-contractual liability. Pure Property Damages. Suppositions. Abuse of Law. Good costumes. Illicit fact. Casual Link. Theory of suitable causation. Neighborhood relationship.

Summary:

“The pure economical Damages (also designated as Pure Property Damages) – those with an economical loss (or Property Loss) within a previous allocation of a juridical position fully protected – are not repairable in non-contractual liability, except in the case of rules violation destined to protect unrelated interests (according the rule of the article 483 nº1 of the Civil Code) or certain special chances such as the articles 485 and 495 of the Civil Code or even when abuse of law is verified as an independent source of civil responsibility.

As it has not been done the proof of the entitlement of the fully protected situation, neither checked the violation of rules intended to protect unrelated interests of the originator/injured, remains the possibility of appealing for abuse of law, interpreted on a broad sense, covering the simple freedoms, namely the generic freedom of act and the special freedom to hire or convene “a prohibition intended to ensure the minimum ethic legal on the relationship between members of the legal community”, regardless of being entered or not inside contractual relations, conducting to practical solutions identical to the same solutions that have resulted of the article 334 of the Civil Code.

In the current case, the defendant’s conduct – interrupting the casual way for which have not established to have any real right or similar, using a backhoe loader to revolve the dirt track with the intent of precluding the mobility of the vehicles of the plaintiff and others that provide him provision of services, specifically in the execution of works in progress – configures a clear wrongful violation of the imposed limits by the good customs and, simultaneously, it represents a serious allocation to the minimum ethic legal demandable on the social living.

By one way or another, the conduct of the defendants is illicit and a wrongful fact that forces to compensate the author because of the demonstrated pure economical damages, since it is established a casual link, considered according the theory of the suitable causation”.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/9948b3578951dbaa8025802c0034c03b?OpenDocument

Judgment of Porto’s Court of Appeal of 13th September 2016, Case No. 191/16.9YPRT: Inventory. Notarial fees. Non application of the Litigation Costs Regulation. Unconstitutionality of the Fees fixation by Disproportionality.

Summary:

“To the new process of Inventory accorded with the Ordinance nº 23/2013 of 5th March (certification that approves the Legal Framework of Inventory Proceedings) it isn’t applicable to the Litigation Costs Regulation about the fixation of the amount of notarial fees due in the final, especially the nº 7 of the article 6, that provides the possibility to be excused of the payment related to the amount still in debt, since the Decree 278/2013 of 26th August, which regulates the Inventory Process, establishes a special rule about that individual, because it regulates the “costs of the Inventory Process” and having a special accuracy and detail on the provision and establishment of the conditions, accounting rules, moment/method of payment and responsibility for the corresponding payment.

According to a judgement of (un)constitutionality, it can’t be considered having a lack of proportion between the value settled of notarial fees (€ 15.180,66) and the cost involved in the consequent share to the communion’s extinction of goods between the spouses, in which the inventory processed in the Notarial Registry had the value of € 1.133.910,00, and it ended after a deal between the parties in the Preparatory Conference, resulted in judicial homologation.

http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/e37fd38104c3b8188025803a005432a1?OpenDocument

III.4. Administrative and Tax Courts

Judgment of the Administrative Supreme Court, of 8th September 2016, Case No. 0573/16: Acquisition of Portuguese Nationality. Actual and effective link with Portugal. Burden of proof.

Summary:

“The action of opposition to the acquisition of Portuguese citizenship proposed, was based in the lack of an effective link of the nationality’s required to the Portuguese community, and it is up to the author making proof of the facts that show the reason argued and it isn’t up to the defendant to show your effective connection.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/403b31a37fd3e38c8025802d00483c2e?OpenDocument

Judgment of the Administrative Supreme Court, of 21th September 2016, Case No. 0582/15: Personal Income Tax. Added Value. Transfer in lieu of payment.

Summary:

“The profit corresponds to the positive difference between the value by which the property was transmitted to the creditor by a transfer in lieu of payment and the value of its acquisition, corrected and added on legal terms, representing an added value on terms of p. a) nº1 of the article 10 of the Personal Income Tax Code, so that the transfer in lieu of payment, constitutes an «onerous disposal of real rights about property».

To this end, it is irrelevant that the transfer in lieu of payment had been executed to the payment of others debts, so the important thing is that the value whereby the property was sold, since the gain was taxed it’s what runs the difference between the acquisition values and the realizable values, that is to say, between the value in what the property entered in the liabilities of the taxable person and the output value.

That interpretation of the article of the Personal Income Tax Code it is not inconsistent with the Constitutional Principles of the Contributive capacity and with the taxation of the effective income.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/b601a4ed1e38d3eb80258037004cbb31?OpenDocument

 

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