A proposta de regulamento relativo a um direito europeu comum da compra e venda e as suas implicações no direito português

We have witnessed in recent years, an obvious effort by the competent European institutions, towards the harmonization of general law applicable to all Member States (MS's). Many developments have been registered in several areas of law, a europeanization process that aims to add value to cross-border transactions and, consequently, the internal market and european trade. This trend manifests itself in general to the private law level, and particularly in contract law. The extension of the field in which market participants - whether professionals or consumers - can act, must imperatively be articulated with a consequent wider protection. After all, the consumer is also a leading European purposes and its level should not be called into question for the sake of promoting trade. The link between the positions of two opposing parties, professionals and consumers, requires commitment and work reinforced by the institutions but only on that basis is consistent legislative production. The proposed Regulation on a Common European Sales Law of the sale, the European Commission, set focus to European contract law and raises questions about the relevance and necessity of such uniformity. An instrument for purposes of harmonization of European contract law, that can be applied to all cross-border consumer contracts, similar in all MS's certainly bring many benefits. However, its applicability and usefulness would depend on the level of protection that would provide, compared to the existing national rights. Would an optional instrument ensure the designs of a common law? Moreover, would a binding instrument be the best alternative in that sense? Keywords:

O Ne bis in idem no Espaço de Liberdade, Segurança e Justiça e no Direito Europeu da Concorrência

Ne bis in idem, understood as a procedural guarantee in the EU assumes different features in the AFSJ and in european competition law. Despite having a common origin (being, in both sectors the result of the case law of the same jurisdictional organ) its components are quite distintic in each area of the integration. In the AFSJ, the content of bis and idem are broader and addressed at a larger protection of individuals. Its axiological ground is based on the freedom of movements and human dignity, whereas in european competition law its closely linked to defence rights of legal persons and the concept of criminal punishment of anticompetitive sanctions as interpreted by the ECHR´s jurisprudence. In european competition law, ne bis in idem is limited by the systemic framework of competition law and the need to ensure parallel application of both european and national laws. Nonetheless, the absence of a compulsory mechanism to allocate jurisdiction in the EU (both in the AFSJ and in the field of anti-trust law) demands a common axiological framework. In this context, ne bis in idem must be understood as a defence right based on equity and proportionality. As far as its international dimension is concerned, ne bis in idem also lacks an erga omnes effect and it is not considered to be a rule of ius cogens. Consequently, the model which the ECJ has built regarding the application of the ne bis in idem in transnational and supranational contexts should be replicated by other courts through cross fertilization, in order to internationalize that procedural guarantee and broaden its scope of application.

A discriminação em função da idade no direito do trabalho

In this thesis, we will treat the discrimination based on age, more specifically of older workers. In recent years, there was an increasing interest on the part of doctrine and jurisprudence on this subject. In fact, in a world in which you live a real economic crisis, older workers tend to have difficulties finding jobs or are targets of the discrimination based on age, at the time of hiring or during the contract. Thus, we will focus on discrimination. We will examine, first, the difference between direct and indirect discrimination, taking into account the importance of the burden of proof, then we will study the figures of positive action measures. Then, treat the legislative framework of the discrimination based on age, that is, in relation to the Labor Code and the Directive 2000/78/EC of November 27, 2000. Eventually, we will determine the cases in which they may accept the discrimination based on age. In fact, these differences in treatment based on age are justified, but must be aimed at a legitimate objective with appropriate and necessary means.

Implementation of WHO Quality Rights assessment in Kabul Mental Health Hospital

RESUMO: Objetivo Avaliar a qualidade dos serviços de saúde mental e a situação dos direitos humanos no Hospital de Saúde Mental de Kabul (KMHH) e fornecer recomendações para o desenvolvimento de um plano de melhoria, actualização e revisão da Política, Estratégia e Plano Nacionais de Saúde Mental,. Métodos A avaliação foi realizada em Janeiro de 2015 no KMHH e na Burn Ward do Hospital Terciário de Isteqlal por uma equipa multidisciplinar usando Qualidade Direitos Tool Kit da OMS. Antes da avaliação, o protocolo foi aprovado pelo Institutional Review Board e obtido o consentimento informado de cada entrevistado. Realizaram-se entrevistas com 16 utentes do serviço, 17 funcionários do hospital e 7 familiares, além da revisão de documentos e da observação das unidades de internamento do KMHH e das interações interpessoais entre funcionários do hospital e utentes do serviço. A comissão de avaliação reviu também a documentação e observou a Unidade de Queimados do Hospital Terciário de Isteqlal, a fim de avaliar e comparar a paridade entre as duas instalações. Após a avaliação, todos os membros da comissão se reuniram e puseram em conjunto todas as conclusões num relatório final. Resultados Encontrámos algumas lacunas graves no nível de prestação de serviços e no respeito pelos direitos humanos dos utentes dos serviços e dos seus familiares. Uma série de políticas, diretrizes e procedimentos relacionados com os direitos humanos dos pacientes estavam ausentes. O ambiente terapêutico e o padrão de vida eram inadequados, existia má qualidade do atendimento e dos serviços prestados, os utilizadores enfrentavam violações do direito ao exercício da capacidade legal e da liberdade pessoal, eram quimica e fisicamente (uso de correntes) contidos e expostos a abusos verbais, físicos e emocionais, e havia grande ênfase no tratamento institucional. Todos estes aspectos foram considerados como extensa violação dos direitos humanos dos utentes de serviço do KMHH. Conclusão Os serviços disponíveis para utentes dos serviços de saúde mental apresentam alguns problemas devido à desconfiança e falta de consciencialização sobre os direitos das pessoas com doença mental e precisam ser alterados de forma positiva. A Lei de Saúde Mental existente difere muito das recomendações da Convenção sobre os Direitos das Pessoas com Incapacidades (CRPD) e requer revisão e adaptação de acordo com esta Convenção. -------------------------------- ABSTRACT: Objective To assess the quality of mental health services and human rights condition in the Kabul Mental Health Hospital (KMHH) and provide recommendations for development of an improvement plan and to update and revise the National Mental Health Policy, Strategy and Plan. Methods The assessment was conducted in January 2015 in the KMHH and the Burn Ward of Isteqlal Tertiary Hospital by a multidisciplinary team using WHO Quality Rights Tool Kit. Before the assessment, Institutional Review Board approval and informed consent from each interviewee were obtained. Interviews were conducted with 16 service users, 17 hospital staffs and 7 family members in addition to documents review and observation of inpatient units of KMHH plus interpersonal interactions between hospital staff and service users. The assessment committee reviewed the documentation and observed the Burn Ward of Isteqlal Tertiary hospital in order to measure and compare parity between the two facilities. After the assessment, all committee members gathered and synchronized all findings into a final report. Results There were some serious gaps on service provision level and respecting human rights of service users and their family members. A series of policies, guidelines and procedures related to patients’ human rights were absent. Inadequate treatment environment and standard of living, poor quality of care and services, violations of the right to exercise legal capacity and personal liberty, being chemically and physically (e.g. chain) restrained, being exposed to verbal, physical and emotional abuse, and emphasis on institutional treatment were all extensive human rights violation that service users were experiencing in KMHH. Conclusion The available services for mental health service users are questionable due to mistrust and lack of awareness about rights of people with disabilities and need to be positively changed. Existing Mental Health Act has a large number of disparities with the CRPD and requires revision and adaptation in accordance to CRPD.

Arbitragem de consumo no direito brasileiro

This dissertation analyzes how the current Constitution and the Brazilian law establish consumer protection, arbitration and access to justice. Following we try to demonstrate why arbitration is a method rarely used in the resolution of consumer disputes in Brazil. It also examines the doctrinal and jurisprudential aspects of the conflict between the Brazilian Arbitration Law (Law nº. 9.307/96), which allows the arbitration clause in contracts of adhesion, and the Consumer Protection Code (Law nº 8.078/90) that in article 51, VII, considers as abusive the arbitration clause. Furthermore, analyzes new proposed bills under scrutiny by the National Congress on the issue and identifies the causes, in the Brazilian legal system, hampering the use of arbitration in consumer relations. Concludes that there are no principle obstacles preventing consumer litigations to be settled by arbitration. High costs, mistrust, oppression, misinformation of consumers and non-participation of the State, being a totally private institute, are factors that generate distrust, suspicion, and have prevented the development of arbitration in consumer relations in Brazil.

A internet e o sistema de justiça

The subject of study of this Thesis aims to highlight and recognize as an object of reflection the undoubted relationship between the Internet and the Justice System, based on the issue of digital evidence. The simultaneously crossing of the juridical-legal implications and the more technical computer issues is the actual trigger for the discussion of the issues established. The Convention on Cybercrime of the Council of Europe of 23rd November 2001 and the Council Framework Decision n.° 2005/222/JHA of 24th February 2005 were avant-garde in terms of the international work about the crimes in the digital environment. In addition they enabled the harmonization of national legislations on the matter and, consequently, a greater flexibility in international judicial cooperation. Portugal, in compliance with these international studies, ratified, implemented and approved Law n. º 109/2009 of 15th September concerning the Cybercrime Act, establishing a more specific investigation and collection of evidence in electronic support when it comes to combating this type of crime, as it reinforced the Substantive Criminal Law and Procedural Nature. Nevertheless, the constant debates about the New Technologies of Information and Communication have not neglected the positive role of these tools for the user. However, they express a particular concern for their counterproductive effects; a special caution prevails on the part of the judge in assessing the digital evidence, especially circumstantial evidence, due to the its fragility. Indisputably, the practice of crimes through the computer universe, given its inexorable technical complexity, entails many difficulties for the forensic investigation, since the proofs hold temporary, changeable, volatile, and dispersed features. In this pillar, after the consummation of iter criminis, the Fundamental Rights of the suspects may be debated in the course of the investigation and the construction of iter probatorium. The intent of this Thesis is to contribute in a reflective way on the issues presented in order to achieve a bigger technical and legal awareness regarding the collection of digital proof, looking for a much lighter approach to its suitability in terms of evidentiary value.

O direito de exoneração do acionista minoritário

This study specifically addresses the situation of minority shareholders after the transfer of control in an listed company. The various underlying interests and reasons that shareholders have for investing in a company can demonstrate shareholders’ reasoning for taking radically different positions on issues relating to the transfer of control of the referred company. This study analyses the current legal system in Portugal and in the European Union in order to assess whether, in the event of a takeover bid of a listed company where there is a transfer of control, minority shareholders have the same appraisal rights as other shareholders to sell their shares and leave the company. The study then examines the European Court of Justice decision on whether a general principle of equal treatment of minority shareholders exists upon a transfer of control (Audiolux) and the Portuguese Securities Market Commission decision regarding the delisting of Brisa - Autoestradas de Portugal, S.A. based on the principle of investor protection. The study concludes that although the principle of equality amongst shareholders has made progress in the European legal system e.g. it is laid down in Directive 2004/25/EC of 21 April 2004 on takeover bids and the Portuguese Securities Market Code, there is also a need for further improvement, which can be accomplished by allowing minority shareholders to exercise an appraisal right in similar unregulated situations.

"A reserva ecológica nacional e a sua importância para o ordenamento do território"

This work primarily aims to investigate the ambiguity between the right to build and the need to preserve nature through one of its instruments: the National Ecological Reserve. In both national and international political effort, forced by increasing ecological awareness of the society were being created regulations for environmental problemsolving frameworks. This significant increase in provisions, that regulated the environment and spatial territory, are directly related to the objectives of the European community. In a year when the soil policy has changed, it is important to review the priorities of regional planning in the face of environmental policies. REN is a restriction of public utility that, among other things, aims to define and integrate diverse areas of our territory which by their structure are essential to the ecological stability of the environment. Going through a historical study of the various regimes that regulated REN, the present work aims to inform the understanding of the concept REN, exposing its objectives and form of delimitation of integrated areas, in order to answer questions about the nature of this institute. It were related to all regulations governing the ecological reserves and land, namely Scheme for Conservation of Nature and Biodiversity; Natura 2000, the National Agricultural Reserve, the Law of the ownership of water resources and water, and the RJIGT RJUE, checking to its compatibility with REN. Through a literature review regarding the jurisprudence of national courts applying the doctrine, analysis of legal regimes, analysis of maps depicting the REN, we carried out a qualitative assessment of the trend and legal effect of REN in protecting populations and environment. Therefore we will work with this reflect on the existing environment awareness in our society and its problems in the management of natural resources.

Segurança e criminalidade organizada

Globalization brought some deep changes to the world (dis)order. Nowadays, more than in other moment in history, we are closer to the ones physically far, living in “global village” called by Marshall McLuhan (1962). The concepts and premises built in this new order, have totally broken with the ones that “came out from Westphalia”, which had last to the end of the cold war, like, for example, the concept of security. Since then, security has been facing one of its biggest transformations ever, completely disrupting the state border based idea and starting to be extended to other domains, as human, economic, environmental and IT security, among others. In this global and interdependent environment, “new” threats and risks have raised, which are demanding a comprehensive approach from the States, international organizations and other actors, to allow the analysis and understanding its impacts on the various society sectors and orders. Inside the enormous challenges to the global security, it is important to regard the organized crime, which covers, by itself, a set of threats and risks, enhanced by its connection to other types of criminality, such as terrorism. The goals pursued and the tactics used by criminal organizations during the perpetration of illegal activities, specially the drug smuggling, have impact in an wide spectrum of the social, economic financial and politic dimensions, which should not be underestimated, otherwise our own security may be compromised. Therefore, the current investigation intends to be an important catalyst to the idea debate inside security scope, through the analysis of the organized crime and the drug smuggling, adding to a discussion of this issue, which should be deeper and holistic, aiming a better understanding of the challenges provided by our society.

Gestão de correio eletrónico em ambiente organizacional : uma perspetiva arquivística

O presente estudo tem como objetivo compreender a valoração de uma mensagem de correio eletrónico em ambiente corporativo, e respetiva integração no arquivo empresarial. Objetivamos, nos primeiros capítulos, descrever o modelo metodológico aplicado. Seguidamente, apresentamos uma revisão bibliográfica assente em literatura inerente à temática dos circuitos informacionais na empresa, e documentação eletrónica resultante dos mesmos, com ênfase nas mensagens de correio eletrónico. A investigação empírica teve por base a aplicação de um inquérito por questionário, tendo por amostra um grupo profissional pré-selecionado, com acesso regular a um sistema de correio eletrónico. Os resultados obtidos através da análise do material empírico permitem-nos observar uma utilização preferencial do correio eletrónico face a outros suportes comunicacionais, constituindo-se as mensagens eletrónicas no documento produzido em maior escala, em ambiente profissional. Foram igualmente verificados casos de ausência de regulamentação para criação, gestão ou arquivo de mensagens, ou mesmo de um sistema de gestão documental que permita integração das mesmas. Com base na análise empírica, e em associação com a revisão bibliográfica explanada, concluímos que estas, e outras questões enunciadas ao longo do estudo, poderão constituir-se num sério obstáculo à gestão, preservação, recuperação e integridade da informação registada por meio de mensagens de correio eletrónico, caso não sejam criados e aplicados procedimentos e sistemas de gestão orientados para a documentação eletrónica, de forma a garantir o acesso a informação de fulcral importância para empresa, enquanto evidência e memória dos processos e atividades organizacionais.