Jurisprudência

  • Informações sobre o processo
    • ID nacional: 01A3417
    • Estado-Membro: Portugal
    • Designação comum:N/A
    • Tipo de decisão: Outro
    • Data da decisão: 23/04/2002
    • Tribunal: Supremo Tribunal de Justiça
    • Assunto:
    • Requerente:
    • Requerido:
    • Palavras-chave: Jurisprudência Portugal português
  • Artigos da diretiva
    Unfair Contract Terms Directive, Article 1, 1. Unfair Contract Terms Directive, Article 7
  • Nota introdutória
    1. When the unlawful terms disappear from an insurance contract, the fact that they have been removed or that there has been a substantive amendment means that an action for an injunction no longer serves any purpose.
    2. Consumer protection was assured through non-judicial means, but equally effectively.
  • Factos
    The Public Ministry (Ministério Público) brought an action for an injunction against terms in an insurance contract, requesting that the company refrain from including certain unfair terms in its sales contracts. These unfair terms entitled the insurance company to a) terminate the contract without providing justification based either on the law or on the contract and b) to retain 50% of the insurance premium for the remaining period should the contract be terminated on the policyholder’s initiative.
    On the advice of a formal recommendation by the Portuguese Insurance Association (Instituto de Seguros de Portugal – ISP), the insurer withdrew the terms from its sales contracts during the trial. It thus argued that the trial served no further purpose. However, the Public Ministry argued that proceeding with the trial was aimed at safeguarding the interests of those consumers who had concluded contracts with the defendant (the insurer) prior to the removal of, or substantive amendments to, the aforementioned terms.
  • Questões jurídicas
  • Decisão

    The action for an injunction was aimed at banning the unfair terms outright. However, since the insurer argued in its defence that the trial served no further purpose, the court did not rule on the validity of the terms. By removing or amending the contract terms, the defendant had already taken action commensurate with the intended outcome of the injunction. Careful consultation of articles 24, 25, 27 and 32 of Decree 446/85 leads to the conclusion that the legal provisions covering injunctions have the direct outcome that the contract party using the terms which have been declared null and void in a court of law is no longer able to use these terms (or others with a similar effect) in any future contracts.
    As such, the Court argued that consumer protection had already been assured, meaning that it was no longer in any party’s interest to proceed with the legal action. Indeed, the action was designed to ensure that there was an injunction placed on the use of the unlawful terms in future. After these terms had been removed, the purpose of the action simply disappeared – both in the material sense (the existence of the terms) and in the intentional sense (intention to use them). Moreover, the fact that there was no purpose behind the action – because, on the defendant’s initiative (albeit on the ISP’s advice), the terms had been removed – meant that it was also not possible to identify a core precondition for a trial, ie that it was in the public interest to proceed with the trial.
    Extending the effects of the court’s ruling and publishing the ruling (both of which were requested by the plaintiff) are the outcome of an action for an injunction and cannot occur irrespective of whether the action has been successful.

    Texto integral: Texto integral

  • Processos conexos

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  • Bibliografia jurídica

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  • Resultado