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Enforcement of judgments related to minors’ visitation schedule | Minors´ refusal

Articles 909-913 of the new Code of civil procedure regulate, for the first time in Romanian laws, the procedure of enforcing judgments relating to minors.

The enforcement procedure is applicable for minor related measures provided by an enforceable title, such as the establishment of a minor’s domicile, the placement of minors for foster care, the return of a minor by the person illegally keeping such minor, the exercise of the right to a personal relationship with minors, as well as other measures prescribed by the law.

It is the first time that the Romanian law regulates such a field, an extremely sensitive one, especially for parents and children, and raising serious issues for all parties involved in the judicial process (judges, court enforcement officers, lawyers).
Particular attention is paid to enforcing the minor’s visitation schedule set out in a judgment.

The enforcement procedure is carried out by a competent court enforcement officer, i.e. performing its activity within the jurisdiction of the court of appeal where the domicile of the parent whom the minor is entrusted to is located.

First of all, the enforcement is admitted by the court having jurisdiction upon the debtor’ domicile. The writ of execution shall be subsequently delivered to the court enforcement officer.

Afterwards, the court enforcement officer shall deliver the summons to the debtor, who usually is the other parent of the minor. The summons sets out the date on which the debtor shall present himself / herself together with the minor at the office of the enforcement officer or at any other place indicated by the enforcement officer, for the minor to be taken over by the creditor or, as the case may be, for the debtor to be informed about the obligation to let the other parent exercise the right to a personal relationship with the minor in accordance with the visitation schedule set out in the enforceable title.

If the debtor fails to comply with the summons and to fulfill the obligation within 10 days after receipt of the summons, the court enforcement officer, at the creditor’s request, shall notify the court, which shall rule, pursuant to a final judgment, the application of penalties from RON 100 to RON 1,000 per each day of delay.

It is noteworthy that the Code of civil procedure prescribes a more serious punishment for the failure to comply with such obligation. Therefore, if, within maximum three months after the delivery of the judgment ruling upon penalties, the debtor fails to fulfill his / her obligation, or if the debtor, acting in bad faith, conceals the minor, the court enforcement officer shall promptly notify the prosecutor’s office attached to the enforcement court for the purpose of commencing criminal proceedings against the debtor for failure to comply with the judgment.

Enforcement of judgments related to minors’ visitation schedule – www.fa-legalonine.com

The Development of Distribuited Generation in Brazil

The spread of the use of  distribuited generation is of main importancee for the input of energy from renewable sources in the energy matrix, as well as for the development of cities whithin a sustainable environment.

In such context, the Brazilian Normative Resolution 482/2012 was the legislative vehicle used for the input of distribuited generation in the Brazilian regulatory framework. As stated in the normative, the small consumers can produce electric energy based on renewable sources of energy (mainly solar photovoltaic) to, therefore, compensate it with its use.

Nevertheless, the cost of the project implementation and the period of depreciation haven’t yet allowed for a mass accession to the system, which led the National Agency of Electric Energy – Aneel (Agência Nacional de Energia Elétrica) to promote the Public Hearing no. 26/2015, aiming towards the improvement of the legislation.

Among the modifications abided by the Agency, it’s worth mentioning the extension of the deadline (from 36 to 60 months) for the compensation of the credits by the consumers. It is possible to use them to cut down the consumption of units by the same holder located separately from the generation system, as long as it is within the area of the same provider.

The improvement of the Brazilian Normative Resolution 482/2012 also brought the picture of shared generation, through which a number of interested parties can get together in a consortium or co-operative for the installment of a system, aiming towards cutting down on the energy bill. There is also the possibility of installing generation systems in condominiums where the energy can be shared among the tenants in percentages set by the consumers themselves..

Besides, the provider’s connection deadline was reduced and the procedures for the installment were simplified, under the adoption of standard forms for the application.

Alongside this process, the Brazilian Minister of Mines and Energy dispached the Decree no. 538/2015, through which he created the Programe for Development of Distribuited Generation of Electric Energy – ProGD (Programa de Desenvolvimento da Geração Distribuída de Energia Elétrica), aiming towards the expansion of the incentive actions for the distribuited generation in Brazil.

According to the 1st Article of the Decree, the Program seeks to encourage the implementation of distribuited generation in public (such as schools, universities and hospitals) and commercial, industrial and residential buildings.

The Annual Specific Reference Values – VRES (Valores Anuais de Referência Específicos) –, which define the remmuneration paid by the distribuitor to the consumer for the energy that the latter delivers to the distrubuition network, were adjusted by the 3rd Article of the Decree mentioned above and have become more appealing. In the same line, a mechanism of monetary update of that value was established, on an annual basis.

In implementing this measures and reducionf the cost of power generating centrals, Aneel estimates that over 1.2 million of brazilian consumers will start producing their own energy, which will be the equivalent to circa 4.5 GW of installed power.

The Development of Distribuited Generation in Brazil – www.fa-legalonine.com

Property brokerage

Real estate activity (property brokerage) is currently regulated by the following diplomas:

i) Portuguese Law no. 15/2013 of February 8th

ii) Portuguese Decree no. 199/2013 of May 31th

iii) Portuguese Regulation no. 16/2014

In the normal exercise of its activity, the brokerage firm must assure, among others, the following formalities:

• In public attendance places, the property brokerage firms should be identified by presenting their complete corporate name, license number and the validity period of the latter.
• In all external activity (contracts, publications, mail, advertisement, etc…), the firm should present their name and their license number.
• The firm’s legal representatives should identify themselves through identification cards provided and issued by IMPIC (Institute of Public Markets, Real Estate and Construction), presenting them in all their interventions.

1 – The brokerage firm is also obliged to:

a) Make sure that, in the moment of the conclusion of the mediation contract, all of their clients have the capacity and legitimacy to contract in the business they’ll promote;

b) Make sure of the correspondence between the characteristics of the property object of the mediation contract and those provided by the clients;

c) Suggest to the recipients the businesses for which you are in charge, using the highest degree of accuracy and transparency about the characteristics, price and terms of payment of the property, so not to mislead them;

d) Communicate the recipients immediatly of any event that can compromise closing the deal.

2 – The brokerage firm is expressly forbidden to:

a) Receive compensation from both clients and recipients on the same trade;

b) Intervene as an interested party in any trade regarding a property included in the mediation contract of which they are a part of;

c) Enter into a property brokerage contract when the circumstances allow for, reasonable, doubt of the admissibility of the trade, whose promotion is suggested;

d) Proceed to the property evaluation of the properties object of the mediation, as well as all the properties inserted in the portfolions of property brokerages with which he/she maintains any relationship of dominance or group or those that present themselves in the market under the same commercial brand.

Property brokerage| www.fa-legalonline.com

Third Round of Airport Concessions in Brazil

In a ceremony in the Planalto Palace (the official workplace of Brazil’s President) held in mid-2015, the Presidency of the Republic announced the launch of the Investment in Logistics Plan 2015-2018. This plan included the concession of the international airports in Brazil, namely Fortaleza, Salvador, Porto Alegre and Florianópolis, which together dealt with 27.6 million passengers in 2014.

Thanks to the concession of these airports, whose bidding will happen in the first semester of 2016, the Government estimates investments throughout the contract, through for example passenger terminals renovation or patio and runaway extensions,   of around 7 billion Brazilian reals (1,739,990 USD) .

From that round, operators of already privatised airports can have up to 15% participation in the consortium, if the airports are in the same region. Thus, the group that buys the airport in Porto Alegre can’t fully take the Florianópolis one.

As opposed to previous disputes, when Infraero (the Brazilian Company for Airport Infrastructures) kept the 49% participation in all consortiums, the government will stay out of the process and won’t even have a golden share, which would guarantee them veto power in strategical decisions.

The feasibility studies of concessions were referred by the National Agency of Civil Aviation (ANAC) to the Federal Court of Accounts (TCU) in December 2015 for the purpose of analysis and suggestions.

The minimum bid for the four airports was established at 3 billion Brazilian Reals (742,830,000,000 USD), numbers that can still be altered, depending on the considerations presented by the TCU. As in previous auctions, the winner is the one who bids higher for each airport.

In face of the necessary government’s cash, the auction winners should anticipate 25% of the granting value already in the day of the contract signature. In the previous rounds, the adopted rule was the payment of annual instalments, throughout the contract period.

One of the consortium members must necessarily  be a foreign entry (minimal participation 15%),  with enough experience to manage 10 million passengers per year.

Except for the airport in Porto Alegre (25 years), the term of the concession will be 30 years.

Sources Brazil: O Globo (a daily newspaper), Valor Econômico (a financial newspaper) and  Infraero’s website

www.fa-legalonline | Brazil | Lawyer

Patents |  Portuguese Industrial Property Code

Patents – A patent constitutes a title that confers its owner exclusive right, involving an invention, as an intellectual operation from which results something new.

There are four requirements that the law establishes cumulatively for the granting of a patent:

1. it has to be an invention;
2. said invention has to be new;
3. it has to imply inventive activity;
4. it has to be prone to industrial application (article no. 55 of the Portuguese Industrial Property Code).

It’s not only the invention of new products that can be patented, but also the creation or the making of new means or processed, based on previous inventions, to obtain a merchantable product or a certain industrial outcome.

Unless otherwise provided for by exceptions in the Portuguese Industrial Property Code, the patent is granted to the one who presents first regularly the request with the enforceable elements.

The person who has been presenting regularly the patent request in any of the countries in EU or WTO or in any intergovernmental body with the authority to grant rights that have effects in Portugal, enjoys the priority right, as his/her successor, to present the request in Portugal.

The right to the patent belong to the inventor or his/her successors by any title.

The patent lasts 20 years counted from the day of the respective request.

The rights emerging from patents can be transmitted, total or partially, free of charge or costly.

The patents are total or partially void:

1. if its object is susceptible to protection;
2. if, in the respective grant, there was procedure infringements or necessary formalities for the grant of the right;
3. if public policy rules are violated.

 Invalidity is invokable at all times by any interested party.

The following are not patentable:

1. Findings such as scientific theories and mathematical methods;
2. Materials or substances already existent in nature and nuclear materials;
3. Aesthetic creations;
4. Projects, principles and methods of the exercise of intellectual activities in gambling or in the domain of economical activities, as well as computer programmes, just as, without any contribution;
5. Presentation of information,

And also…

Inventions whose commercial exploitation is against the law, public rules, public health and good practices.

www.fa-legalonline.com | Patents | Portuguese Industrial Property Code

We wish you a Merry Christmas!

 New Civil Code of Romania – Civil liability

General provisions

The New Civil Code comprises a thorough regulation of civil liability. The notorious Articles 998-999 of the former 1864 Civil Code have been replaced by much more modern provisions adapted to nowadays society. The New Code makes a distinction between tort liability and contractual liability from the very beginning.

According to Article 1349 of the Civil Code on tort liability, every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to harm, by his actions or inactions, the rights or legitimate interests of another persons.

When he is endowed with reason and fails in this duty, he is liable for any injury he causes to another and is bound to make full reparation for the injury. In certain cases provided for by the law, a person is also bound to make reparation for injury caused to another by the act of another person, by the act of things or animals in his custody, and by the ruin of an immovable.

The liability for injury caused by reason of a defect in the product shall be provided for by special law.

In regulating personal liability (for own acts), Article 1357 of the Civil Code sets out that every person causing an injury to another by an illicit deliberate act is bound to make reparation for the injury. He is liable for the less serious fault.

For assessing the fault, the circumstances in which the injury has been caused, independent of the person causing the injury, and, as the case may be, the fact that the injury has been caused by a professional in operating a business, shall be taken into consideration.

One of the most significant amendments as compared to the former law can be found in Article 1365 which provides for that civil court is bound neither by the provisions of the Criminal Law nor by the final acquittal or by the decision to not pursue the criminal lawsuit in what concerns the existence of the injury or the guilt of the person causing the injury.

As for contractual liability, Article 1350 of the New Civil Code provides for that every person has a duty to honour his contractual undertakings. Where, without justification, he fails in this duty, he is liable for any injury he causes to other contracting party and is bound to make reparation for the injury.

Unless the law provides otherwise, neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them.

The distinction between tort liability and contractual liability is welcomed taking into consideration that, in the absence of distinct regulations, the former Articles 998-999 gave rise to various conflicting interpretations from specialists.

new-civil-code-of-romania

www.fa-legalonline.com | Civil liability | New Civil Code

Contrary to supplementary capital contributions, which always have money as an object, Ancillary Capital Contributions can consist of entries in kind, specific obligations or also money.

• Both private companies limited by Shares and Public Limited companies are admitted.
• Ancillary Capital Contributions depend on statutory disposition  that established an obligation to make the instalments. The article of association may impose to all or some of the partners the obligation to make payments  besides the entries, as long as the essential elements of this obligation are set and the payments to be done whether in return for payment or free of charge are specified (article no. 209 of the Portuguese Commercial Companies Code for limited companies limited by shares, no. 287 for public limited companies).

The statuses may affect the obligation of additional instalment to a prior deliberation  of a general assembly, but its accomplishment is not mandatory –  the execution of the contract may be established by the governance body.

• Ancillary Capital Contributions may be free of charge or in return for payment, in other words, can include interest or not, and they may or not have a counterpart from the company.
• If the rewarding is established, the consideration may be paid regardless the existence of profit from the company (article no. 209 of the Portuguese Commercial Companies Code); however, with public limited companies, the rewarding shall not exceed the value of relative instalment – in other words, the value of the consideration cannot exceed the value of the additional Instalment itself.

Contrary to supplementary instalments, the non-fulfilment of Ancillary Capital Contributions doesn’t affect the situation of the partner as such!

The non-fulfilment of the obligation to make the Ancillary Capital Contributions has as consequence the creation of a credit right over a partner. Nevertheless the mention non-fulfilment doesn’t allow the end of participation and exclusion of the partner from the company, except if the article of association establishes that exclusion.

• To assess the regime to be applied in the event of non-compliance, as the debt or  equity will depend  essentially of the onerous or free of charge nature of the Ancillary Capital Contributions, and the possibility of their restitution.
• Ancillary Capital Contributions expire with the dissolution of the company.

www.fa-legalonline.com | Ancillary Capital Contributions | Corporate Law

Technological Transfer

With the conclusion of the technological transfer contracts, the parties aim towards the transmission of research findings of an organization to another, with the purpose of posterior development of its commercialization (granting of licenses in the technological domain).

These technological transfer contracts have contributed usually to improve economical efficiency and promote competition, given that they can reduce the duplication in matters of research and development, reinforce the incentives in favor of new research and development actions, promote  incremental innovation, facilitate the dissemination of technology and boost the competition in the markets for developed products.

The technological transfer contracts have an underlying license of  Industrial Property Rights (”DPI”) and can be subjected to the regulation and control of anti-competitive norms!

Due to its relevance, we highlight the duties of the Licensor, namely:

• Obligation to facilitate the use of license, namely through the maintenance of the DPI at issue (e.g. Payment of records and renewals, where they exist) and of its legal effective protection against  alleged infringers, i.e., it’s one of the counterpoints of mandatory counterpart payment by the Licensor;
• Responsibility for the damages arising from the violation of contractual obligations;
• Obligations related to other license applications: in some non-exclusive licensing contract, some terms of “most favourable treatment” are stipulated, in benefit of the Licensor, through which the Licensee commits himself to review the contract in order to extend more favorable contractual terms offered to the third;
• Obligations related to the improvement of licensed technology: the obligation to give the Licensee any improvements done by the Licensor on the licensed technology during the contract period can be stipulated;
• Guarantees: Depending on the nature of the contract parties (e.g. If they are companies or consumers) and the object of the license, legal guarantees can be applied to the contract. On the other hand, the parties may define the issuing of guarantees by the Licensee, which will necessarily have effects in other contractual rendering (for example, in a licensing contract and software maintenance , the rendering of maintenance services can’t be done or remunerated in the guarantee period);
• Compensation for breaching the rights of intellectual property.