Revista Red

Revista Red

2017

ISSN 2182-9845
2017 N.º 2
Editorial
José António Sá Reis

Make antitrust great again”? – perspetivas para o direito da concorrência norte americano na era da pós-verdade

 

É comum depararmo-nos, em textos norte americanos sobre direito da concorrência, com a afirmação segundo a qual “antitrust has been one of our most successful exports”. E de facto não podemos deixar de conceder que é ao direito dos EUA que se deve a parte de leão da elaboração teórica e da construção da grande maioria dos institutos que desde o início do século passado colonizaram e povoaram muitos dos modernos ordenamentos jurídicos, fornecendo-lhes mecanismos cada vez mais eficazes no combate a práticas que ameaçam, entre outros bens jurídicos, o acesso de todas as empresas ao mercado em condições de paridade e a liberdade de escolha dos consumidores. 

2017 N.º 2
The general clause of the law against unfair comercial practices in the light of the professional diligence
Hans-Georg Koppensteiner
directive 2005/29/CE; professional diligence; B2B; B2C; antitrust; law of marks; private autonomy; European Court of Justice; Convention of Paris

Conference imparted at the Faculty of Law, University of Porto, and at the Faculty of Law,  Portuguese Catholic University (Lisbon School), on May 2017.

2017 N.º 2
Unfair Competition according to the case law of the Supreme Court of Justice: revisiting the subject of protected interests
Ana Clara Azevedo de Amorim
Unfair Competition; Supreme Court of Justice; dual protection; consumers; social model; functional interpretation.

In the Portuguese legal system, the unfair competition is still mainly understood as a guarantee mechanism of the positions acquired by economic agents in their mutual relationships, considering the need to avoid the diverting of others’ clientele. However, addressed mainly from an evolutionary dimension, the case law of the Supreme Court of Justice demonstrates that the discipline also aims now the protection of consumers’ interests, as appears particularly from the registration refusal of distinguishing signs.

2017 N.º 2
Consumer protection in credit agreements for consumers relating to residential immovable property. Confrontation between the solutions proposed by Directive 2014/17/EU and those enshrined in the consumer credit’s legal regime
Cláudia Silva Castro
Consumer; consumer protection; consumer law; credit agreements for consumers; mortgage credit to consumers; APRC; Decree Law no. 133/2009; Directive 2014/17/EU

The present essay's aim is part of the latest problematic of over indebtedness of modern societies and how the community legal order, in particular the Portuguese system, has played the arduous task of consumer protection for credit agreements, focusing on contracts credit for residential property. With this topic in mind, we proposed to analyse how the community legislation has been protecting the consumer, whether it's a private consume loan, or a loan for main habitation purposes.

2017 N.º 2
The liability of the producer for defective products, 25 years after Decree-law n.º 383/89 of November 6th
Vera Lúcia Paiva Coelho
Consumer; Defective products; Strict liability; Development risks

This text aims to analyze the Decree-law n.º 383/89 of November 6 th, regarding the strict liability of the producer for defective products, after having spent more than 26 years of its entry into force.

In this follow-up, the text discusses the essentials of the system begins by analyzing the concept of producer, and product defect, then the strict liability of the producer and ends up in cases of exclusion of liability. There´s always a point of reference to our case law to determine whether, over the years, the Decree-Law was well understood and consequently appliedand ensuring the rights of victims.

 

2017 N.º 2
Law and economics and labor law: an analysis of the Extraordinary Appeal 693.456 and the economic burden to the strike law to Brazilian civil servants
Piaza Merighi da Cunha
Economics; Law and Economics; Efficiency; Utilitarianism; Strike; Civil Servants

As an applied social science, the Law must always have as its basis of interpretation the social and historical elements, and cannot depart from it, otherwise it will not translate justice into its norms and decisions. However, there are theories that seek to interpret the Law by other mechanisms, such as Law and Economics, which analyzes Law under a strictly economic view. In this sense, it is highlighted the issue presented by the right to strike, whether of the worker in general, or, in a special view, of civil servants. 

2017 N.º 2
Patrimonial effects of marriage and registered partnerships in Private International Law of the European Union. Brief analysis of Regulations (EU) 2016/1103 and 2016/1104 of 24 June
Helena Mota
European Union; Private International Law; marriage; matrimonial property regimes; de facto union; registered partnerships.

After a long process of trying the unification of private international law on the property effects of marriage and registered partnerships, on 3 December 2015 the Council concluded that it was impossible to achieve the necessary unanimity necessary for the adoption of the Proposals presented early in 2011. Given the willingness expressed by several Member States to implement enhanced cooperation in the areas covered by the regulations, this has been advanced, leading to the publication of Council Regulations (EU) 2016/1103 and 2016/1104 of 24 June 2016 implementing enhanced cooperation between 18 Member States, including Portugal, in matters of ​​jurisdiction, applicable law, recognition and enforcement of decisions on matrimonial property regimes and patrimonial effects of registered partnerships. In this work, we will present a brief analysis of the texts of the new Regulations and the first reflections on the solutions presented.

2017 N.º 2
The improvement of human labour dignity in recent economic order interventions promoted by the Brazilian government
Renato Lovato Neto / Lourival Oliveira
State interventions; Limits to Brazilian government interventions; Brazilian economic constitution; Human labour dignity.

Two of the main economic intervention tactics used by Brazilian State are regulatory power actions and public funding. Both kinds of interventions should be guided by principles contained in Article 170, Brazil Constitution – in particular, the improvement of human labour dignity and “full employment” principles. In certain cases, Brazilian State transfers to private sector obligations which in fact are constitutionally foreseen as public priorities, an onus that should be compared to social benefits arising from that public imposition. This practice increases business costs and does not always corresponds to the fulfillment of the property social function, an important constitutional and civil law principle in Brazilian Law. 

2017 N.º 2
3D Printing and Copyright
Maria Victória Rocha
3D printing; copyright protected work; infringement of moral and patrimonial copyrights; protection measures; free uses; makers movement.

The various technologies of 3D printing revolutionize the forms of production and consumption, making us enter a totally different era, which will have its culmination in "Make it yourself", now possible in some measure, but with potential for exponential growth. This contributes to the 4th Industrial Revolution. Companies already produce objects on demand, close to distribution and consumption, without the costs and risks of transportation and storage. Consumers can have immediate access to objects printed in 3D, or make them themselves. 3D printing poses several issues to Intellectual Property. 

2017 N.º 2
The Hardship Clause as a form of Mitigation of Information Asymmetry in International Contracts
Gabriela Wallau Rodrigues / Demétrio Beck da Silva Giannakos
Hardship Clause; Asymmetric Information; International Contracts.

The text analyses hardship clauses from a perspective of Law & Economics, especially in light of issues concerning asymmetric information. Once the main characteristics and the legal grounds of such clause are defined, the paper focuses on the role played by it on mitigating information gaps between parties on relational contracts, precisely those involving international relations. As a conclusion, hardship clause is identified as an efficient mechanism of disclosure between parties, therefore contributing to contract maintenance and transactional costs reduction.

2017 N.º 2
The Genetically Modified Organisms in European Union Law: the role of the precautionary principle and the relationship between Authority and Freedom
Roberto Saija
Precautionary principle; substantial equivalence; GMO; biotechnology; food security; co-existence.

The essay examines the European regulatory framework for GMOs, in terms of cultivation, nutrition (foods containing GMOs or derived from GMOs), release into the environment.

In this logic is given particular attention, after a historical overview on the first Community action in the field of the early nineties (dir. 1990/219 and 220), the rules in force, namely Directive 2001/18, as amended, the regulations 1829 and 1830/2003, the latter on labeling and traceability, and 2015/412 Directive gives Member States the possibility to restrict or prohibit the cultivation of genetically modified organisms (GMOs) in their territory.