I. EDITORIAL – EXTRAORDINARY CORRECTION FACTORS OF RENTS
In the month of January, at a legislative level, it deserves special mention the Ordinance no. 39/2020, of February 5, as well as the Ordinance no. 42/2020, of February 14.
Ordinance no. 39/2020, of February 5, has established the extraordinary correction factors of rents, for the years 2019 and 2020, in accordance with Article 11 of Law no. 46/85, of September 20, which determines that rents of buildings leased for housing purposes prior to 1 January 1980 may be subject to extraordinary correction during the contract period, through application of factors referred to the year of the last rent fixation.
On the other hand, Ordinance no. 42/2020, of 14 February, has fixed the rate of addition on CO emissions (index 2) provided for in article 92-A of the Excise Duty Code («CIEC»), as well as the value of the addition resulting from the application of this rate to the addition factors for each product.
In the field of case-law, it is worth highlighting the Judgement of the Court of Justice, Case C-341/18, which defined the interpretation to be given to Article 11(1) of Regulation (EU) 1016/399 of 9 March 2016, on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code). The Court has established that when a seaman, as a third-country national, enters the service of a ship berthed for a long period in a seaport of a State which is part of the Schengen area in order to carry out work on board, he shall, before leaving that port on that ship, be given an exit stamp in his travel documents when the master of that ship notifies the competent national authorities of his imminent departure.
In the same way, it should be highlighted the Judgment of the Lisbon Court of Appeal, Case 3460/17.7T8LSB.L1-7, which ruled that the information made available by the financial intermediary in the marketing of securities must include the characteristics and risks of the financial product, and must be complete, true, current, clear, objective and lawful, so as to make it possible for the interested party (investor) to make a duly informed and well-founded decision, as provided for in article 7, paragraph 1 of the Securities Code.
Also concerning case-law, it is worthy of mention the judgement of the Supreme Administrative Court no. 01073/14.4BEPRT, which decided not to apply the exemption established on Article 44 paragraph 1, point n) of the Tax Benefits Statute, regarding “national monuments” to real state property situated on its special protection area.
Finally, in Miscellaneous we would like to point out the transposition into the internal legal system of the Directive (EU) 2018/1673, on combating money laundering by criminal law.
Ordinance no. 36-A/2020 of February 3: Introduces the second amendment to Ordinance no. 214/2019, of July 5, which regulates the Support Measure for the Return of Emigrants to Portugal («Programa Regressar»).
Ordinance no. 39/2020 of February 5: Establishes the extraordinary correction factors of rents, for the years 2019 and 2020.
Ordinance no. 40/2020 of February 6: Extension, until December 31 of 2020, of the transitional regime applicable to fuel supplies carried out in or to installations for own consumption, provided for in paragraph 2 of Article 14-B of Ordinance no. 246-A/2016, of September 8.
Decree-Law no. 3/2020 of February 11: Amends the marketing standards for rice and broken rice intended for the final consumer.
Regional Legislative Decree no. 6/2020/A of February 11: First amendment to Regional Legislative Decree No. 5/2001/A of March 21 which creates the Regional Science and Technology Fund.
Decree-Law no. 4/2020 of February 13: It fixes the Armed Forces personnel for the year 2020.
Ordinance no. 41/2020 of February 13: Sets the tariff applicable, under the guaranteed remuneration regime, to power plants that use urban waste as a source of electricity production.
Ordinance no. 42/2020 of February 14: Fixes the rate of addition on CO emissions (index 2) provided for in article 92-A of the Excise Duty Code («CIEC»), as well as the value of the addition resulting from the application of this rate to the addition factors for each product.
Decree-Law no. 5/2020 of February 14: It applies to the staff of the special bodies of the Information System of the Portuguese Republic the retirement scheme applicable to the security services and forces provided for in the Internal Security Law
Ordinance no. 43/2020 of February 14: Amends Ordinance no. 33/2019, of 25 January, which regulates procedural aspects of the recognition of academic degrees and diplomas awarded by foreign high school institutions.
Regional Regulatory Decree no. 5/2020/A of February 14: Execution of the Budget of the Autonomous Region of the Azores for 2020.
Regional Regulatory Decree no. 6/2020/A of February 17: Approves the Regulation for Licensing Space Activities in the Autonomous Region of the Azores.
Ordinance no. 46/2020 of February 19: Proceeds to the first amendment of Ordinance no. 228/2013, of July 15, which creates and distributes the organic units of the Foreigners and Borders Service («SEF»).
Regional Regulatory Decree no. 7/2020/A of February 19: Legal framework for the career of airport operations technician at «Aerogare Civil das Lajes» and transitional rules for airport operations assistant workers.
Decree-Law no. 6/2020 of February 24: Defines the legal regime for the attribution of the title of specialist in the pharmaceutical and special pharmaceutical careers.
Ordinance no. 50/2020 of February 27: Regulation of the formalities and procedures applicable to the recognition and control of exemptions and reduced rates of tax on petroleum and energy products («ISP»).
III.1. Court of Justice of the European Union
Judgement of the Justice Court of February 5, Case C‑341/18: Reference for a preliminary ruling. Regulation (EU) 2016/399. Schengen Borders Code. Control at the external borders. Third-country nationals. Article 11(1). Affixing of stamps on travel documents. Exit stamp. Determination of the time of exit from the Schengen area. Signing-on of seamen with ships that are in long-term mooring in a sea port).
“Article 11(1) of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) must be interpreted as meaning that, when a seaman who is a third-country national signs on with a ship in long-term mooring in a sea port of a State forming part of the Schengen area, for the purpose of working on board, before leaving that port on that ship, an exit stamp must, where provided for by that code, be affixed to that seaman’s travel documents not at the time of his signing on, but when the master of that ship notifies the competent national authorities of the ship’s imminent departure.”.
III.2 Constitutional Court
Judgment of the Constitutional Court no. 80/2020, Case no. 615/18:
The Court decided as constitutional the paragraphs 7.1.2. and 7.2.2. (related to the liquid fuel supply stations) established on the “Table of Fees and Other Municipal Revenues”, attached to the Municipal Fee Regulation, License and Other Municipal Revenue of Estarreja.
It was considered that the petrol station licensing by the City Council or by the Regional Economy Administration, it implies behaviour subject to licensing, that constitutes the Municipality in a given obligation to withstand negative impacts of the licensed activity that are simply not considered in the license. And the fee in question is also the specific reward for such passive obligation.
III.3. Courts of Justice
Judgement of the Lisbon Court of Appeal of February 4, Case no. 97/19.0YHLSB-PICRS: Industrial property. Trademark. Distinctive function of the trademark. Reproduction of trademark. Priority trademark. Trademark registration.
Judgement of the Lisbon Court of Appeal of February 4, Case no. 3460/17.7T8LSB.L1-7: Financial intermediary. Civil liability. Information duty. Contractual liability. Limitation period.
Judgement of the Lisbon Court of Appeal of February 13, Case no. 770/18.0T8LSB.L1-8: Executive sale. Mortgage. Lease. Expiration. Extensive interpretation.
III.4. Administrative and Tax Court
Judgement of the Supreme Administrative Court of February 5, Case no. 0372/13.7BEPRT: Tax on games of chance. Unconstitutionality. Unlawfulness. Compensation. Tax burdens. General survey of games.
Judgement of the Supreme Administrative Court of February 5, Case no. 0178/14.6BEMDL: Tax execution reversal. Opposition to tax execution. Expiry of the right to assess the tax. Notification invalidity. Error in the form of the process.
Judgement of the Supreme Administrative Court of February 5, Case no. 01073/14.4BEPRT: Tax exemption. Municipal Property Tax. Historic interest. Protection of historical and cultural heritage.
Judgement of the Central Administrative South Court of February 7, Case no. 00080/17.0BEVIS: The lack of guilt regarding heritage insufficiency, period limitation. Social security contribution.
IV.1.1. Monographs and Periodic Publications
IV.1.2. Generic Guidelines & Cia
Circulate letter no. 30218, of 03.02.2020, of Deputy General Director of VAT Management Area
Subject: VAT – Article 45 – A and 54 – A of Council Implementing Regulation (EU) no. 282/2011 of 15 March 2011
– The dispatch or transport evidence of intra-Community transactions.
– Call-off stock transactions arrangements of intra-Community transactions.
Circulate letter no. 20217, of 05.02.2020, of Deputy General Director of Income Tax and International Relations
Subject: Special tax rate reduction applicable to property income depending on the duration of the rental agreement – Article 72 of Personal Income Tax Code.
Circulate letter no. 90 028, of 12.02.2020, of Deputy General Director of Tax Collection Area
Subject: Payment of withholdings taxes of Personal Income Tax, Corporate Income Tax and Stamp Duty Tax – Alteration of procedures and updating of Withholdings Codes.
Circulate letter no. 20218, of 19.02.2020, of Deputy General Director of Corporate Income Tax Department
Subject: Corporate Income Tax (“IRC”) – Municipal Surtax rates on the taxable profit of 2019 Tax Period.
Circulate letter no. 4/2020, of 21.02.2020, of Deputy General Director of Corporate Income Tax Department
Subject: Capital reduction operations with the shares cancellation.
IV.2.1. Economy, Finance and Taxation
On February 20, the Council of Ministers has approved the law proposal transposing into the internal legal system two Directives of the European Parliament and of the Council:
i) Directive (EU) 2018/1673, on combating money laundering by criminal law that has as objectives to ensure that the competent authorities of the Member States of the European Union can cooperate in a more efficient and agile way to harmonize the list of criminal activities that constitute offenses underlying the crime of money laundering and the typical conducts of this crime, and ensure that the Member States impose proportional, effective and dissuasive criminal sanctions against the crime of money laundering, insofar as it has a particularly damaging power to individual and collective interests.
In order to achieve the above mentioned objectives it is necessary to expand the framework of typical illicit acts underlying money laundering crime and the spectrum of its typical conduct, as well as aggravate the penal framework in cases where the offender is an obliged entity (credit or financial institutions, notaries, tax consultants, etc.), in accordance whith Article 2 of Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015, and commits the offense in the exercise of their professional activities;
ii)The Directive (EU) 2018/843 also known as 5th Directive AML, which establishes the prevention of the use of the financial system for the purposes of money laundering or terrorist financing.
V. INDUSTRIAL PROPERTY
The new Implementing Regulation of the Madrid Protocol concerning the International Registration of Marks introduced new changes and a new simplified form of registration, which entered into force on 1 February 2020. Among the various changes introduced by the new Implementing Regulation, applicable from 1 February, are the simplification of the renewal of international registrations (Rule 30), as well as amendments to both the Administrative Instructions for the application of the Protocol and the applicable fee table.
The Intellectual Property Office of New Zealand (IPONZ) joined the TMview database on 17 February 2020. With this accession more than 685,000 IPONZ trademarks were added, and TMview now accounts for a total of 73 participating offices, thus providing information and access to a total of more than 57 million trademarks.
The withdrawal of the United Kingdom from the European Union (EU) was duly made official on February 1st through the Agreement on the withdrawal of the United Kingdom, thus becoming a third country. Nevertheless, the Agreement on the withdrawal from the United Kingdom stipulates a transitional period, which will end on December 31 of 2020, during which EU legislation will remain applicable in the United Kingdom, namely, the legislation related to the European Union trademark and the Community Design or Model. Thus, all proceedings before the EUIPO involving relative grounds of refusal from the UK legal system, prior rights from the UK or legal representatives domiciled in the UK will be practised as before until the end of the transitional period.
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS
- V. INDUSTRIAL PROPERTY