CASE-LAW – 2017 –

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III. CASE-LAW

III.1. Court of Justice of the European Union

Judgement of the Court of November 29, Case no. C265/16:
Reference for a preliminary ruling. Approximation of laws. Copyright and related rights. Directive 2001/29/EC. Article 5(2)(b). Private copying exception. Article 3(1). Communication to the public. Specific technical means. Provision of a cloud computing service for the remote video recording of copies of works protected by copyright, without the consent of the author concerned. Active involvement of the service provider in the recording.

Summary:
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, in particular Article 5(2)(b) thereof, must be interpreted as precluding national legislation which permits a commercial undertaking to provide private individuals with a cloud service for the remote recording of private copies of works protected by copyright, by means of a computer system, by actively involving itself in the recording, without the rightholder’s consent.
http://curia.europa.eu/juris/document/document.jsf?text=&docid=197264&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=347518

Judgement of the Court of 29th November, Case no. C214/16:
Reference for a preliminary ruling. Protection of the safety and health of workers. Directive 2003/88/EC. Organisation of working time. Article 7. Allowance in lieu of annual leave paid on termination of the employment relationship. National legislation requiring a worker to take his annual leave without the remuneration in respect of that leave being established

Summary:
Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, and the right to an effective remedy set out in Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in the case of a dispute between a worker and his employer as to whether the worker is entitled to paid annual leave under the first of those articles, they preclude the worker having to take his leave first before establishing whether he has the right to be paid in respect of that leave.

Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.

http://curia.europa.eu/juris/document/document.jsf?text=&docid=197263&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=348689

Judgement of the Court of 9th November, Case no. C298/16:
Reference for a preliminary ruling. General principles of EU law. Right to good administration and rights of the defence – National tax rules providing for the right to be heard and the right to be informed during an administrative tax procedure – Decision to levy value added tax issued by the national tax authorities without giving the taxpayer access to the information and the documents upon which that decision was based.

Summary:
The general principle of EU law of respect for the rights of the defence must be interpreted as a requirement that, in national administrative procedures of inspection and establishment of the basis for the assessment of value added tax, an individual is to have the opportunity to have communicated to him, at his request, the information and documents in the administrative file and considered by the public authority when it adopted its decision, unless objectives of public interest warrant restricting access to that information and those documents.
http://curia.europa.eu/juris/document/document.jsf?text=&docid=196496&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=348956

Judgement of the Court of 23 th November, Case no. C292/16:
Reference for a preliminary ruling. Freedom of establishment. Direct taxation. Corporation tax. Directive 90/434/EEC. Article 10(2). Transfer of assets. Non-resident permanent establishment transferred, in the course of a transfer of assets, to a receiving company also non-resident. Right of the Member State of the transferring company to tax that establishment’s profits or capital gains resulting from the transfer of assets. National legislation providing for immediate taxation of the profits or capital gains in the year of transfer. Collection of the tax due as revenue of the tax year in which the transfer of assets took place

Summary:
Article 49 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which, where a resident company, in the course of a transfer of assets, transfers a non-resident permanent establishment to a company that is also non-resident, first, provides for the immediate taxation of the capital gains resulting from the transfer and, second, does not allow deferred collection of the tax, whereas in an equivalent national situation such capital gains are not taxed until the disposal of the transferred assets, in so far as that legislation does not allow the deferred collection of the tax.
http://curia.europa.eu/juris/document/document.jsf?text=&docid=197045&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=349915

III.2. Constitutional Court

Judgment of the Constitutional Court no. 771/2017 of November 16, Case no. 225/17: Judge unconstitutional the rule that, once the insolvency of the debtor is requested by the provisional judicial administrator, the provisions of Article 28 of the CIRE must be applied immediately, with the necessary adaptations, that is, that the request of said administrator requesting the insolvency of the debtor shall entail the recognition by him of his insolvency situation and the waiver of his hearing, interpretatively arising from Article 17-G (4) of the CIRE.
http://www.tribunalconstitucional.pt/tc/acordaos/20170771.html

III.3. Courts of Justice 

Judgement of Porto´s Court of Appeal of 6 November 2017, Case no. 27804/15.7T8PRT.P1: Civil liability. Limitation Period. Insurance Agreement. Voluntary litis consortium.
http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/bac9012c3ac87f27802581de003c3bab?OpenDocument

Judgement of Lisbon´s Court of Appeal of November 2 2017, Case no. 3731/13.1TBFUN.L1-2: Members’ resolution. Abuse of rights.
http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/d0b075292d36eed3802581df003f6373?OpenDocument

III.4. Administrative and Tax Courts
Judgment of the Supreme Administrative Court of November 16, Case no 907/09.0BELRA: Municipal Tax for Real Estate («IMI»). The IMI ´s assessment system. Framework and specific coefficients for valuation. There is no place to consider the coefficients of affectation (CA) and quality and comfort (QC). In the evaluation of construction land, the location coefficient, according to its definition in art. 42, of Municipal Tax for Real Estate Code.
http://www.dgsi.pt/jtca.nsf/170589492546a7fb802575c3004c6d7d/d1079426bd8b3f39802581db0058ee15?OpenDocument

Judgment of the Supreme Administrative Court of November 15, Case no. 01325/14: Gains. Losses. SMEs (Small and Medium-sized Enterprises). Certification. IAPMEI (Institute of Support for Small and Medium-sized Enterprises and Innovation).
http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/ee5ef0c799e33afb802581e0004d29d0?OpenDocument

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