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.