Acórdão nº 05/10 de Tribunal dos Conflitos, 09 de Junho de 2010
Magistrado Responsável: | OLIVEIRA MENDES |
Data da Resolução: | 09 de Junho de 2010 |
Emissor: | Tribunal dos Conflitos |
Acordam no Tribunal de Conflitos Por decisão proferida no 2° Juízo da comarca de Ponta Delgada, em acção com processo especial para cumprimento de obrigações pecuniárias emergentes de contrato, na qual figuram como autora e réu, respectivamente, A…., com sede na Rua …, …, Ribeira Brava, e B…, residente na Alameda …, …, …, Ponta Delgada, foi considerado competente para dirimir o pleito o tribunal administrativo.
A autora interpôs recurso para o Tribunal da Relação de Lisboa, instância que confirmou a decisão impugnada.
Interpõe agora recurso para o Tribunal de Conflitos.
É do seguinte teor o segmento conclusivo da motivação apresentada: 1. O douto acórdão recorrido entendeu negar provimento ao recurso com fundamento na procedência da excepção da incompetência absoluta do tribunal judicial.
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No âmbito da sua actividade, a apelante celebrou vários contratos de concessão com a Câmara Municipal de Ponta Delgada, para fornecimento, instalação e exploração de parquímetros colectivos, em zonas de estacionamento de duração limitada, pelo que, mediante tais contratos, a apelante passou a deter a exploração, gestão e manutenção dos estacionamentos da dita cidade.
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O apelado é proprietário do veículo …, e desde 01.01.2005 que vem estacionando o seu referido veículo automóvel nos vários parques de estacionamento que a apelante explora na cidade de Ponta Delgada, sem se dignar proceder ao pagamento do tempo de utilização, conforme regras devidamente publicitadas no local.
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Em sede de audiência de julgamento veio o apelado arguir a excepção da incompetência absoluta do tribunal.
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O tribunal “a quo” julgou a excepção da incompetência procedente e, em consequência, o apelado foi absolvido da instância.
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Interposto recurso da sentença proferida em 1ª instância, vem o tribunal “a quo” afirmar que o tribunal administrativo e fiscal é o tribunal competente para julgar os presentes autos, nos termos do disposto no artigo 4º, n.° 1, alínea f), do ETAF, em virtude do contrato de locação de estacionamento celebrado entre o réu e a apelante, contrato de direito público e não de direito privado, a concessionária surge na relação com o particular investida de prerrogativas próprias de um sujeito de direito público — Câmara Municipal — revestido de “ius imperium”.
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Sucede, porém, que mal andou o Tribunal “a quo” ao julgar procedente a referida excepção.
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Com efeito, a Câmara Municipal de Ponta Delgada celebrou com a apelante um contrato de fornecimento, instalação e exploração de parquímetros na cidade de Ponta Delgada, nos termos da qual a apelante fica responsável pela conservação e manutenção dos parquímetros, de forma a garantir as condições de operacionalidade, de acordo com as especificações técnicas e características indicadas na proposta, devendo respeitar as taxas que o município vier a fixar.
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Todavia, o contrato celebrado entre a apelante e o apelado não se confunde com os contratos de natureza pública, celebrados entre uma entidade privada e uma entidade pública, munida de “ius imperium”.
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Na verdade, o contrato celebrado entre a apelante e o apelado é de natureza privada e não de natureza pública, uma vez que a apelante não se encontra munida de “ius imperium”, pois a apelante ao actuar perante terceiros, neste...
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