YEAR 2015 N.º 2

ISSN 2182-9845

2015 N.º 2

Andrés Domínguez Luelmo

La jurisprudencia del TJUE y su incidencia sobre el Derecho privado de los Estados miembros: el caso español y los préstamos con garantía hipotecaria
Varios pronunciamientos del Tribunal de Justicia de la Unión Europea (TJUE) están dando un espectacular vuelco al sistema español de ejecución hipotecaria. Como en otros ordenamientos los préstamos con garantía hipotecaria están sometidos a un tipo de interés muy bajo, lo que se explica porque, en caso de impago, el procedimiento de ejecución es muy rápido, con unas causas de oposición limitadas, así como por el privilegio para el cobro que se atribuye al crédito garantizado con hipoteca.

Civil liability for unfounded application for bankruptcy

Aristides Manuel da Silva Rodrigues de Almeida

Tort law; Unfounded claim of insolvency; Improper presentation; Procedural accountability; Liability in the case of intentionally or negligently; Compensation

The 22nd article of the CIRE in our legal system represents an estimation of liability, particularly in which concerns article 483rd of the Civil Code, which is not to be confused with a mere ground of procedural accountability such as litigation in bad faith, with which it can perfectly coexist. The unfounded claim of insolvency is one that lacks foundation, which is deducted from occurring without the facts forming the legal provision of insolvency. The improper presentation is the application of the debtor tending to his own declaration of insolvency without being checked the situation of impossibility of performance of arrears.

Ex post protection to false corporate governance statements

Ana Sílvia Falcão Mestre Efigénia

False statements; corporate governance; comply or explain; legal effect; ex post; soft law

A corporate governance statement may lead, for example, an investor to invest, not to invest, or maintain its position. If the statement is false, can harm investors, creditors, partners, third parties, or society itself. Accordingly, it is of great importance to analyse the possible ex post protection solutions for these comply or explain statements in the context of corporate governance. We conclude that our legal system is equipped with various forms of protection against this type of statements, giving legal effect to them and to the principle comply or explain.

Right to privacy and non-patrimonial damage in current Italian Supreme Court jurisprudence

Angelo Viglianisi Ferraro

Right to privacy; Violation of human rights; Non-patrimonial damages; Gravity of violation; Seriousness of loss

On 11th November 2008, four important decisions of the Italian Corte di Cassazione (United Sections) fixed a new and singular interpretation of Article 2059 of the Italian Civil Code (about “non-patrimonial damage”), by establishing principles that must be applied by all Italian courts. According to the Supreme Court Judges, compensation of non pecuniary loss requires previous assessment of the elements of civil tort (conduct – damage – causation) and, in cases where the law does not specifically provide for its recovery, compensation can be allowed only where there is a grave violation of the constitutional rights of the person and the damage is serious. The Third Section of the Court decided some months ago to apply the same rules in the matter of the right to privacy (although in this case there is a specific provision for the compensation of non-patrimonial damages).

Multiple causes and uncertainty over causation

Renato Lovato Neto

Alternative causation; Joint liability; Market share liability; Partial liability

The doctrine of alternative causation, of German and Austrian origin, intends to ensure the repair when a victim suffers an injury and the true cause remains unknown. This may occur either because the potentially harmful factor comes from a certain group of people, but it is not known which of the agents did it, or when there is a set of equal conduits moved at the same time or a plurality of potential causes (including facts of nature) where all have power to cause the observed injury, but one cannot be established which of them was. Therefore, the alternative causality has its defined scope to cover cases where there is lack of knowledge about the authorship of the harmful conduct within a particular group of people, where certainly one caused the injury, but it is unknown who did it. It’s also applied when it is impossible to set the causal relationship between two or more possible perpetrators or factors of nature, identified or not, or in cases of market share liability.

The Financial Assistance Prohibition. Especially the Leveraged Buyout (LBO)

Pedro Nunes

Financial assistance; leveraged buyout; takeover; mergers & acquisitions; share deals

The prohibition of financial assistance, forged at the dawn of the twentieth century, has suffered throughout the European area, a trend of easing. This trend came to be consecrated in 2006 by the Community legislature. However, in Portugal remains the absolute prohibition of financial assistance. At first we analyse thus the relevance of this regime today. Secondly we examine the case of LBO. Operations that use this companies’ acquisition technique reveal an economic relevance that should not be ignored. However, the doctrine has not observed, with due attention, the LBO. We propose to explain in short term, the main aspects of how to assemble the operation. Finally we treat the question of whether this is a valid operation in the light of Portuguese law.

The right of making available to performers according to Portuguese Copyright Law (CDADC): questions raised by n. 4 of article 178

Victória Rocha

Right of making available to the public; performances; WIPO Treaties 1996; Information Society Directive; Performers

The right of making available to the public on line and on demand, of article 10 of OMPI Treaty of 1996 (WPPT) and of article 3.2. Directive on Information Society (DIS), concerning performers, was not duly transposed into Portuguese Law- art. 178º of CDADC- thus creating severe errors, namely internal contradictions in the article itself (cf. art. 178º, n. 1, d) and n. 2 and 3 CDCDC) and systematic incompatibilities with art. 183º-A CDADC.

The denial of the right to a deduction, exemption or refund of the VAT on intra-community acquisitions in the case of fraud without to be regulated the national law

Carmen Ruiz Hidalgo

Intra-community acquisitions; Theory of Knowledge; VAT; Tax Fraud; Denial of the right to deduct

The survival of the regime of taxation of destination on intra-community acquisitions has generated, and carry on, frames of fraud, despite the legal efforts from the European Union and the EU Member States, with the consequent loss of revenue for both. The struggle against the tax fraud are regulated in the VAT Directive and, of course, in the national legislations, as for example, the denial of the right to the deduction in the light of the principles of proportionality and legal certainty, provided that the tax payer knew or could know the existence of a frame of fraud. In the event that the refusal isn't regulated at the national tax law, the EU Member States can deny this right under the VAT Directive.

Crowdfunding as a way to finance companies

João Vieira dos Santos

Crowdfunding; Regulation; Companies; Fundraisers; Online Platforms; Investors

In this essay, we seek to adress the emergence of Crowdfunding, a new means of financing, by a crowd, using online platforms. We explain the different existing models: Donation-based Crowdfunding, Reward-based Crowdfunding, Equity-based Crowdfunding and Lending-based Crowdfunding. We also intend to analyze how these new funding mechanism can be introduced in the portuguese legal system to finance our companies, taking into account the risk of fraud and the possible legal constraints, especially in the portuguese Company Law. Therefore, we seek to research, regarding the fundraisers, the online platforms and the investors, the legal systems that already regulate Crowdfunding (the legal system of United States of America, the legal system of France and the legal system of Italy). Last but not the least, we intend to comment the Law Project n.º 419/XII, from 30 April 2013, that aims to approve the Crowdfunding legal Framework in Portugal and the recent developments registered in the European Union to regulate this tool.

The possibility of the extension to third parties of the obligatory effects of the contract in the CESL and in the Spanish regulation

Miguel Ángel Tenas Alós

Common European Sales Law; Contracts; Contractual vinculation; Principle of contractual relativity; Sales; Spanish legal system

The principle of contractual relativity states that only those who are part of a contract are affected by this agreement. However, the modern contracts and the evolution of Law made happen some exceptions, for example the defense of the theory of the “contractual vinculation”. Other possibles exceptions passed by time. The Common European Sales Law –CESL- happened to be suggested as a Regulation for common law of sales. Finally, it has not been approved, but it should be studied whether it also includes exceptions to the principle of contractual relativity.