Judgment of the Supreme Court of Justice No. 9/2014 D.R. (Portuguese official gazette) No. 114, Series I of 2014.06.17
Extraordinary appeal for the settlement of case law – Rappel Discounts
With this judgment, the Supreme Court of Justice (SCJ) was requested to rule on the extraordinary appeal for the settlement of case-law, brought by the Public Prosecutor (PP), on grounds of the opposition between judgments of the Court of Appeal – judgment of the Court of Appeal of Évora, of 07/05/2013, delivered in case No. 86/12.5YQSTR.E1, and the judgment also of the Court of Appeal of Évora, of 16/04/2013, delivered in case No. 55/12.5YQSTR.E1.
To sum up, the Court of Appeal of Évora, in the judgment delivered in case No. 86/12.5YQSTR.E1, requested to rule on the appeal brought by the appellant Modelo Continente Hipermercados, S.A., with regard to the decision delivered by Tribunal da Concorrência, Regulação e Supervisão, that a rappel discount the first grade of which begins with “1” unit is not an economic discount, directly associated with the transaction and objectively justified according to such transaction, but is rather a discount of a subjective nature, for which reason fixed and unconditional discounts always applicable to a given economic agent, on the grounds of its purchase record, are not acceptable for the purpose of the calculation of the actual costs price, confirmed the ruling appealed against, concluding that such discounts do not fall within the list provided set out in Article 3 of Decree-Law No. 370/93, of 29 October, as amended by Decree-Law No. 140/98, of 16 May. On the contrary, the Court of Appeal itself, in the judgment delivered in case No. 55/12.5YQSTR.E1, in an appeal brought by the appellant Modelo Continente Hipermercados, S.A., against the decision delivered by Tribunal da Concorrência, Regulação e Supervisão, considered that the discounts directly related with the transaction in question are quantity discounts (in which the so called rappel discount is included), financial discounts and promotional discounts provided the same are identifiable by product, quantity and period of validity and that they must be deducted from the purchase invoice price to form the actual purchase price.
Therefore, considering the differing positions, the plenary of the criminal chambers of the SCJ resolved to settle the case law, to the effect that a graded rappel discount, the first grade of which begins with one (euro, kilograms, litres etc.), is a quantity discount that, pursuant to Article 3(2) and (3) of Decree-Law No. 370/93, of 29 October, as amended by Decree-Law No. 140/98, of 16 May, is to be taken into account in the determination of the effective purchase price, where the other requirements that the same be stated in the invoice or, by reference thereto, in supply contracts or price lists and be capable of being determined upon issue of such invoice, are met.