Acórdão nº 01601/13 de Supremo Tribunal Administrativo, 24 de Outubro de 2013
Magistrado Responsável: | ROSENDO JOSÉ |
Data da Resolução: | 24 de Outubro de 2013 |
Emissor: | Supremo Tribunal Administrativo |
Formação de Apreciação Preliminar Acordam em conferência na Secção de Contencioso Administrativo do Supremo Tribunal Administrativo I – Relatório.
A…….. (“A…….”), pede nos termos do artº 150º do CPTA, a admissão de recurso do Acórdão do TCA Sul, de 14-08-2013, que negou provimento ao recurso da decisão do TAC de Lisboa de 27-02-2013 que, no âmbito do processo cautelar por si movido contra INFARMED - Autoridade Nacional do Medicamento e Produtos de Saúde, IP, o Ministério da Economia e do Emprego e a contra-interessada, B………. Limited, julgou improcedente, por falta do requisito do periculum in mora, o pedido de providencia de suspensão de eficácia do acto de Autorização de Introdução no Mercado (AIM) para o medicamento Montelucaste B……. 10 mg., concedido pelo Infarmed à contra-interessada durante o período de vigência da patente e do CCP 20, até 18-08-2014 e o pedido de intimação da DGAE, na pessoa do MEE, a abster-se de fixar os PVP Por sentença datada de 27-02-2013, o TAC de Lisboa julgou improcedente a providência cautelar requerida.
Inconformada, a requerente interpôs recurso para o TCA Sul que, por acórdão de 14-08-2013, negou provimento ao recurso e confirmou a sentença.
Deste aresto é pedida agora a admissão de recurso de revista excepcional.
A Recorrente para sustentar a admissibilidade do recurso de revista nos termos do artº. 150º, nº. 1 do CPTA, alega em síntese: As questões de direito que se requer ao presente Tribunal que aprecie revestem uma relevância jurídica fundamental, resultante da complexidade das operações exegéticas de determinação dos requisitos indeterminados estabelecidos pelo CPTA para a concessão de providências cautelares e à probabilidade de tal questão ser colocada em litígios futuros em tudo semelhantes ao caso vertente.
A resposta às questões apresentadas, porque trata de obter tutela efectiva de direitos fundamentais, serve também um propósito maior que o interesse que a ora Recorrente procura retirar da procedência deste recurso: servirá à construção e cumprimento do Estado de direito democrático, princípio constitucional ordenador do Estado e, nessa medida, trata então do impacto gerado na comunidade social, como um todo, sendo assim evidente a sua relevância social.
Atenta a diversidade de decisões que sobre as mesmas questões de fundo têm vindo a ser proferidas, e o erro de julgamento do Acórdão recorrido face ao corpo factual que resulta provado pelas instâncias, o tratamento jurisprudencial por este colendo tribunal da questão a decidir é ainda necessário para uma melhor aplicação do direito.
Deverá, assim, o presente recurso ser admitido, por se encontrarem verificados os pressupostos de admissibilidade a que alude o artigo 150.º do CPTA.
A posição da decisão a quo assenta em argumentos que foram recentemente tratados e afastados pela mais recente jurisprudência do TCAS, em diversos Acórdãos, dos quais se destaca o proferido a 24.1.2013, no âmbito do Processo n.º 08704/12.
Para efeitos de avaliação do periculum in mora, apenas se deverá considerar o fundado receio da produção de prejuízos...
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