YEAR 2023 No 3 Volume 32

ISSN 2182-9845

2023 No 3

Tiago Azevedo Ramalho

From Civil to Procedure Law: logic of an implication
Do Direito Civil ao seu Processo: sentido de uma implicação

Entre as formas certamente mais esclarecedoras de olhar a relação entre o Direito Civil e o seu Processo está aquela que neste encontra, no Processo, um momento ainda interno à concretização do sentido da lei civil. Personae, res, actiones, tal a tripartição clássica do orbe civil: as pessoas e o seu estatuto; os diferentes modos de relações jurídicas; e, finalmente, as acções enquanto meios de tutela – e por estas últimas se entendendo, não apenas as concretas posições de índole simultaneamente material e processual respeitantes a cada relação jurídica, mas o conjunto do ordo iudiciorum, da ordenação do poder de julgar, desde a qual é facultada a respectiva concessão.

Press publishers' rights in the Digital Age: Challenges and opportunities for legal and policy frameworks

Bzhar Abdullah Ahmed / Hemdad Faisal Ahmad

Press Publishers; Digital Single Market Directive; Publishers’ Right; Freedom of Information; Neighbouring Rights.

This research critically examines the new related right known as press publishers’ right introduced by the European Union. Press publishers right refers to a legal concept that grants publishers of news articles and other publications the right to control the use of their content on digital platforms. The concept is also known as the “neighbouring right” or the “snippet tax”. The article introduces the notion of the right and the rationale behind its introduction. There are various reasons for the introduction of this right and the author undertake a qualitative approach to a thorough investigation that reveals that the introduction of this right was necessary due to a significant decline in the revenue for press publishers.

B2C electronic contracts

José Engrácia Antunes

E-commerce; Electronic Contracts; Electronic Procurement; Consumer Contracts; “Business-to-Consumer”; Digital Platforms.

B2C electronic contracts are one of the most relevant outcomes of e-commerce: e-contracting between businesses and consumers operates 24 hours a day, 7 days a week, and 365 days a year, currently representing a global turnover of more than $2 trillion worldwide and €700 billion in Europe. Its importance has also reached Portugal: in 2022, 43% of Portuguese consumers made online purchases and 18% of Portuguese companies received online orders. This centrality of B2C electronic contracts has increasingly made them a new paradigm of consumer contracts. This paper provides an introductory study on the juridical regime of this consumer contract, successively reviewing its legal sources, requirements, negotiation, formation, confirmation, form and proof, and extinction, as well as other aspects (in particular, contracting within the scope of electronic platforms).

Brief considerations on Regulation (EU) 2020/1783 of the European Parliament and of the Council, of 25 of November of 2020, on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters

Elisabete Assunção

European Private International Law; Regulation (EU) 2020/1783; taking of evidence in civil or commercial matters; digital system; videoconferencing; e-Codex platform.

This article intends to analyse, albeit briefly, Regulation (EU) no 2020/1783 of the European Parliament and of the Council, of 25 of November 2020, on cooperation between the courts of the Member States in the field of taking evidence in civil or commercial matters, focusing, particularly, on the innovations that appear in this reformulated Regulation. In order to provide some basis for “interpretation” of the aforementioned Regulation, namely its amendments, we will address the following topics, after a short introduction: the background of the Regulation; the main provisions of the Regulation, with special focus on its innovations; the e-Codex platform (e-Justice Communication via Online Data Exchange), making, in the end, some conclusions about the modifications introduced in that instrument.

Artificial Intelligence. Legal framework and reflections on the proposed Artificial Intelligence Act

Marta Boura

Digital decade; artificial intelligence; Artificial Intelligence Act; legal framework.

On June 14, 2023, the European Parliament voted in favour of a proposal to regulate the use of artificial intelligence which albeit corresponding to the European Commission's proposal of April 21, 2021, already includes important changes compared to the original version. Among those, we highlight, on one hand, the review of the definition of artificial intelligence systems and, on the other hand, the list of artificial intelligence practices considered prohibited. It can therefore be stated that the way has been opened towards the consolidation of the European legal framework in this matter. On the path to building a resilient Europe for the Digital Decade, the European Commission has pointed out the artificial intelligence as an opportunity for excellence in the digital transformation.

Revisiting the topic of converting fixed-term contracts into public employment: the ruling of the Supreme Administrative Court, of 8.09.2022

Francisco Liberal Fernandes

Abuse of successive fixed-term contracts; conversion of the employment contract; Order of the Court of Justice Câmara Municipal de Gondomar; Directive 1999/70; article 63rd of the LCTFP.

Assessment of the sentence of 8.09.2022 of the Supreme Administrative Court, which determined, in the context of work in public functions, the conversion of the fixed-term employment contract into an employment contract of indefinite duration.

The Amazon Market Place case: The risks of being a judge and party

Carmen Herrero Suárez

Self-preferencing; platform; vertical integration; gatekeeper; Amazon.

A common feature of dominant digital platforms is that they are integrated into a plurality of business lines, including the markets they organise or connect, so that they operate a platform and market their own goods and services on it. This dual role played by platforms in various digital markets, acting simultaneously as intermediaries and providers, has raised fears that it may be exploited by platforms to further entrench their dominance, frustrate competition and stifle innovation. Despite the introduction of novel terms, such as self-preferencing, we are actually facing a classic conflict of interest that can be addressed from different branches of the legal system.

Intangibility of tax credits and alternatives to the partial void and to the limited effectiveness theses of the restructuring plan

José Gonçalves Machado

Court confirmation; restructuring plan; partial void and limited effectiveness theses.

In this paper one asks whether courts are allowed to confirm a restructuring plan, in the context of the PER, by using the partial void or the limited effectiveness theses, in order to not break the intangibility of tax credits rule or, mutatis mutandis, other credit rights that, by imperative law, cannot be modified. Looking at the foundations of the restructuring plan, and paying some attention to other foreign law solutions, one suggests three alternatives to the aforementioned theses: the first two allow parties to express their consent or to modify the restructuring plan, without breaking the intangibility of tax credits rule without their consent. The third one consists of adopting a restrictive interpretation of that rule.

Information Duties and Consumer Protection

Jorge Gabriel Trindade Marinho

Information duties; Consumer; Consumer Protection.

In the current society people act daily as consumers in multiple life situations, which led the legislator to guarantee their protection through pre-contractual information duties. Information is a pillar of the European consumer law and it has become the consumer's guardian. Its purpose is to rebalance their contractual position regarding the suppliers and reallocate consumer’s place in the market. The consumer finds themself surrounded by giants: around him emerge an infinity of products and services, offers and proposals, ways of contracting, countless suppliers..., but also the pre-contractual information duties themselves, which appear organized in extensive lists. For this reason, this paradigm reveals weaknesses and insufficiencies that lead to an increasing number of criticisms and the consequent presentation of mechanisms that aim to correct the actual system or even replace it.

Social networks and artificial intelligence in the management of the tax system in times of social crisis

Luís Manuel Pica

Artificial Intelligence; Risk Profiles; Personal Data; Taxpayers; Welfare State.

The analysis of data and information on the web has developed into a very important tool for cataloguing files, personal categories or classifying objectives that unleash a wide range of benefits in the most varied fields of applicability. This technique is also very useful in the field of tax enforcement. It can be said that in a developed and highly globalised society the management of the tax system cannot be immune to this phenomenon. This is because, through the analysis and processing of data in databases, it is possible to maximise the acts aimed at control and supervision over the actions of private individuals in tax management acts. Through this massive cataloguing it is possible to act to mitigate phenomena such as international tax evasion and fraud.

The non-compete agreement in the agency contract

José Maria Serrão

Agency; non-compete agreement; offer; consideration; equity; penal clause; geographical area.

Decree-Law no. 178/86, of July 3rd, amended by Decree-Law no. 118/93, of April 13th, contains the rules that discipline the contract and the relationship of agency in the Portuguese legal system. In this short paper, we will approach some problems that have been given rise in the our courts, such as: the (in)validity of the non-compete agreement that the agent commits himself to as soon as his contract with the principal comes to an end, but in which the value of the monetary compensation is not, from the start, agreed upon; the legality of apposing a penal clause in the event the agent breaches his non-compete agreement; and the criteria that should determine the geographical area that limits the non-compete agreement.

Is money laundering prevention effective? A perspective from banking institutions

Cátia Tomé / Rita Faria

Money laundering; prevention; compliance; banks; interviews.

The present article describes the main results of an empirical study conducted with the main purpose of overcoming some of the shortcomings in the existent money laundering literature, by trying to understand the Anti Money Laundering mechanisms in Portuguese banks, particularly regarding prevention procedures and their perceived efficiency. In order to fulfil this objective, a qualitative study was carried out and interviews were conducted with specialists in compliance. The findings showed that mechanisms such as staff training, costumer due diligence and suspicious activity reporting were indeed the ones mentioned the most by participants and depicted as the most essential. These mechanisms allow the acquisition of necessary and sufficient knowledge regarding AML, and the clients.