I. EDITORIAL – EXCEPTIONAL AND TEMPORARY MEASURES IN THE CONTEXT OF THE COVID-19 PANDEMIC
The month of July was characterised, at the legislative level, as were the months preceding it, by the publication of various pieces of legislation with a view to addressing the constraints brought about by the pandemic situation, creating exceptional and temporary measures in the context of the Covid-19 pandemic in order to foster the resumption of economic activity.
Therefore, three pieces of legislation are particularly noteworthy: Decree-Law no. 39-A/2020, of July 16, which amends several exceptional and temporary measures in relation to the Covid-19 pandemic, also defining procedures for the allocation of funding and compensation to essential transport operators, and amending the exceptional measures for the organization and operation of educational and training activities and of the Resolution.
The Decree-Law no. 46-A/2020, of July 30, which creates extraordinary the support for the progressive resumption of activity in companies in a situation of business crisis with a temporary reduction in the normal work period, as an exceptional and temporary measure in the context of the Covid-19 pandemic.
Finally, the Council of Ministers Resolution no. 55-A/2020, of July 31, which declares the situation of contingency and alert, in the context of the COVID-19 pandemic.
In the field of case-law, it is worth noting the Judgment of the Constitutional Court no. 422/2020, Case no. 528/2017, it was discussed the application of the Article 4 no. 1, of the Commission Regulation (EEC) No 3665/87 and the Article 19 no. 1 a), of the Commission Regulation (EEC) No 2220/85, especially the right of the definitive concession of amounts of export refunds.
It is also relevant to note the Judgement of Justice Court of July 15, Cases T‑778/16 and T‑892/16, which ordered that the analysis conducted by the Commission are not sufficient to prove the existence of a selective advantage for the purposes of Article 107(1) TFEU it was also ordered the annulment of the contested decision.
In the context of Miscellaneous, we would like to highlight the approval, of a proposal for a law which creates the companies extraordinary bailout process, a temporary procedural mechanism was established, of an exceptional nature, intended exclusively for companies that are in a difficult economic situation or insolvency, imminent or current, in the context of the COVID-19.
Law no. 20/2020, of July 1: Proceeds with the first amendment to Decree-Law no. 14-G/2020, of April 13, which establishes the exceptional and temporary measures in the area of education, in the context of the COVID-19 disease pandemic.
Decree-Law no. 33/2020, of July 1: Approves exceptional measures to ensure access to higher education, in the 2020-2021 school year, by students from foreign secondary education systems.
Ordinance no. 163/2020, of July 1: Proceeds with the seventh amendment to the Specific Regulation on Social Inclusion and Employment, approved in annex to Ordinance no. 97-A/2015, of March 30.
Ordinance no. 164/2020, of July 2: Proceeds to the eighth amendment of the Specific Regulation for the Sustainability and Efficiency in the Use of Resources, annexed to Ordinance no. 57-B/2015, of February 27.
Decree-Law no. 33-A/2020, of July 2: Proceeds with the public appropriation of the share capital held by Winterfell 2 Limited in Efacec Power Solutions, SGPS, S. A. (Efacec), by means of the nationalisation of the respective shareholder control, with a view to safeguarding the national public interest, under the terms of the legal regime of public appropriation, approved in annex to Law no. 62-A/2008, of November 11.
Regional Regulatory Decree no. 15/2020/A, of July 3: Proceeds with the first amendment to Regional Regulatory Decree no. 2/2020/A, of January 27, which regulates the granting of financial incentives for the acquisition of electric vehicles and charging points.
Law no. 23/2020, of July 6: Proceeds with the first amendment to the Portuguese Bar Association Rules, approved by Law no. 145/2015, of September 9, reviewing the remuneration statute of the statutory auditor that integrates the respective fiscal council.
Law no. 24/2020, of July 6: Transposes into national law Articles 1, 2(4), (9), (10) and (11), 9, 9a and 9b of Council Directive (EU) 2016/1164 of July 12, 2016, which establishes rules against tax avoidance practices that have a direct impact on the functioning of the internal market, as amended by Council Directive (EU) 2017/952 of May 29, 2017, with respect to hybrid asymmetries with third countries, amending the Corporate Income Tax (IRC) Code, approved by Decree-Law no. 442-B/88 of November 30.
Law no. 25/2020, of July 7: Adapts the sanctioning regimes foreseen in the legal regimes applicable to investment fund management companies and securitization fund management companies, amending the Regime of Collective Investment Organisations, the Regime of Venture Capital, Social Entrepreneurship and Specialized Investment, the Regime of Securitization of Credits and the Securities Code.
Ordinance no. 165/2020, of July 7: Regulates the terms of deposit and publication of arbitration rulings in administrative and tax matters, under Article 185-B of the Procedure Code in Administrative Courts and Article 16 of the Legal Regime of Arbitration in Tax Matters, approved by Decree-Law no. 10/2011 of January 20.
Council of Ministers Resolution no. 53/2020, of July 10: Approves the National Energy and Climate Plan 2030 (PNEC 2030).
Decree-Law no. 35/2020, of July 13: Amends the protection of workers from the risks related to exposure to carcinogens or mutagens at work by implementing Directives (EU) 2017/2398, 2019/130 and 2019/983.
Ordinance no. 170/2020, of July 13: Determines the entry into operation of the Almada Labour Court.
Ordinance no. 170-A/2020, of July 13: Regulates the procedures, conditions and terms of access to the extraordinary incentive for the normalisation of business activity, provided for in Article 4 of Decree-Law no. 27-B/2020, of June 19, to be granted by the Institute for Employment and Professional Formation, I. P. (IEFP, I. P.).
Ordinance no. 171/2020, of July 14: Approves the exceptional scheme of incentives for the recovery of care activity not carried out due to the epidemiological situation caused by the new coronavirus SARS-CoV-2 and the disease COVID-19, under the terms of the Economic and Social Stabilization Program.
Council of Ministers Resolution no. 53-A/2020, of July 14: Declares, following the epidemiological situation of COVID-19, until 11:59 pm on July 31, 2020, the situation of calamity, contingency and alert.
Decree-Law no. 36/2020, of July 15: Proceeds with the first amendment to Decree-Law no. 14-E/2020, of April 13, which establishes an exceptional and temporary regime for the conception, manufacture, importation, national commercialization and use of medical devices for human use and personal protective equipment.
Decree-Law no. 37/2020, of July 15: Establishes social support measures within the framework of the Council of Ministers Resolution no. 41/2020 of June 6, which approves the Economic and Social Stabilisation Programme.
Regional Legislative Decree no. 17/2020/A, of July 15: First amendment to Regional Legislative Decree no. 9/2012/A, of March 20, establishing the legal framework for access to and use of natural resources in the Autonomous Region of the Azores for scientific purposes.
Declaration of Rectification no. 25-A/2020, of July 15: Rectifies the Council of Ministers Resolution no. 53-A/2020, of July 14, which declares the situation of calamity, contingency and alert, in the context of the COVID-19 disease pandemic, published in the Portuguese Official Gazette, 1st series, no. 135, 2nd supplement, of July 14, 2020.
Decree-Law no. 37-A/2020, of July 15: Proceeds with the first amendment to Decree-Law no. 28-B/2020, of June 26, which establishes the sanctioning regime applicable to failure to comply with the duties established by the declaration of the alert, contingency or calamity situation.
Decree-Law no. 39-A/2020, of July 16: Proceeds with: a) The fourteenth amendment to Decree-Law no. 10-A/2020, of March 13, which establishes exceptional and temporary measures regarding the epidemiological situation of the new coronavirus – COVID-19; b) The first amendment to Decree-Law no. 14-C/2020, of April 7, which establishes the definition of the procedures of allocation of funding and compensation of the essential transport operators, in the context of the COVID-19 pandemic; c) The first amendment to Decree-Law no. 20-H/2020, of May 14, which establishes the exceptional measures of organisation and the functioning of educational and training activities, in the context of the COVID-19 pandemic.
Decree-Law no. 39-B/2020, of July 16: Authorizes the Government to acquire Portuguese Airline «Transportes Aéreos Portugueses» stock corporation – (TAP SGPS) shares, economic rights, and benefits.
Resolution of the Council of Ministers no. 53-C/2020, of July 17: Approves the concession by the Portuguese Republic of the loan to the Portuguese Airline stock corporation, as well as the drafts of the respective funding contracts and the funding contract complementary agreement.
Resolution of the Council of Ministers no. 53-D/2020, of July 20: Establishes the exceptional and temporary measures of the organization of the school year 2020/2021, in the context of the COVID-19 pandemic.
Law no. 27-A/2020, of July 24: Proceeds to the second amendment to the Law no. 2/2020, of March 31 (2020 State budget), and to the amendment of several legal documents.
Assembly of the Republic Resolution no. 49/2020, of July 27: State of emergency application assessment, declared by the Decree of the President of Republic no. 14-A/2020, of March 18.
Decree-Law no. 46-A/2020, of July 30: Creates an extraordinary support of the gradual resumption of companies business, in company crisis situation with temporary reduction of normal working period.
Council of Ministers Resolution no. 55-A/2020, of July 31: Declares the situation of contingency and alert, in the context of the COVID-19 pandemic.
III.1. Court of Justice of the European Union
Judgement of the Justice Court of July 9, Case C-76/19: Reference for a preliminary ruling. Customs union. Community Customs Code. Article 32(1)(c). Regulation (EEC) No 2454/93. Article 157(2), Article 158(3), and Article 160. Determining the customs value. Adjustment. Royalties relating to the goods being valued. Royalties constituting a ‘condition of sale’ of the goods being valued. Royalties paid by the buyer to its parent company for the supply of the know-how required for the manufacture of the finished products. Goods purchased from third parties, which constitute components to be incorporated in the licensed products.
Judgement of the Justice Court of July 9, Case C-199/19: Reference for a preliminary ruling. Combating late payment in commercial transactions. Directive 2011/7/EU. Concept of ‘commercial transaction’. Supply of services. Article 2(1). Lease contract. Periodic payments. Schedule fixing the amounts to be paid in instalments. Article 5. Scope.
Judgement of the Justice Court of July 2, Case C-231/19: Reference for a preliminary ruling. Taxation. Value added tax (VAT). Directive 2006/112/EC. Exemptions. Article 135(1)(g). Exemption of transactions for the management of special investment funds. Single supply used for the management of special investment funds and for other funds.
Judgement of the Justice Court of July 15, Cases T‑778/16 and T‑892/16: State aid. Aid implemented by Ireland. Decision declaring the aid incompatible with the internal market and unlawful and ordering recovery of the aid. Advance tax decisions (tax rulings). Selective tax advantages. Arm’s length principle.
III.2 Constitutional Court
Judgment of the Constitutional Court no. 422/2020, Case no. 528/2017: It was discussed the application of the Article 4 no. 1, of the Commission Regulation (EEC) No. 3665/87 and the Article 19 no. 1 a), of the Commission Regulation (EEC) No. 2220/85, especially the right of the definitive concession of amounts of export refunds.
The unconstitutionality of the interpretation was claimed (of ECJ in relation to EU law) of the Article 4 no. 1 of the Commission Regulation (EEC) No. 3665/87 and the Article 19 no. 1 a), of the Commission Regulation (EEC) No. 2220/85, invoking the principle of equality in breach of Article 13 of Portuguese Constitution.
The Court decided, however, that the unconstitutionality question raised was not substantiated, and that there is no minimum correspondence to the final segment of the Article 8 no. 4 of Portuguese Constitution: “[…] the fundamental principles of the democratic constitutional state”.
The Constitutional Court decided not to judge the appeal lodged by A1, Ltd.
III.3. Courts of Justice
Judgement of the Lisbon Court of Appeal of July 2, Case no. 17474/16.0T8LSB-C.L1-6: Parties costs. Deposit. Unconstitutionality. Principle of proportionality. Principle of effective judicial protection. Bail. Bank guarantee. Costs.
Judgement of the Guimarães Court of Appeal of July 8, Case no. 159/15.2T8VLN-B.G1: Credit rankings. Pledge. Preferential credits.
Judgement of the Guimarães Court of Appeal of July 8, Case no. 489/17.9T8AVV.G1: Mandatory sports insurance. Disability compensation. Personal injury.
Judgement of the Guimarães Court of Appeal of July 8, Case no. 3155/19.7T8VCT-A.G1: Reversal of litigation. Claim for final guardianship.
III.4. Administrative and Tax Court
Judgement of the Supreme Administrative Court of July 8, Case no. 010/20.1BALSB: Autonomous taxation. Deductions.
Judgement of the Supreme Administrative Court of July 15, Case no. 03112/12.4BELRS 01009/17: Transfer pricing. Question of fact. Point of law. Incompetency.
IV.1.1. Monographs and Periodic Publications
ABÍLIO NETO, Código de Processo Civil Anotado, 5.ª Edição, Ediforum, julho 2020
ANTÓNIO ABRANTES GERALDES I CARLOS LOPES DO REGO I MIGUEL TEIXEIRA DE SOUSA I PEDRO PINHEIRO TORRES, O Novo Regime do Processo de Inventário e Outras Alterações na Legislação Processual Civil, Almedina, julho 2020
ANTÓNIO ABRANTES GERALDES, Recursos em Processo Civil, 6.ª Edição Atualizada, Almedina, julho 2020
DOMINGOS SILVA CARVALHO SÁ, Do Inventário, 8.ª Edição Revista e Atualizada, Almedina, julho 2020
GUILHERME DE OLIVEIRA, Estudos de Direito da Família, Almedina, julho 2020
GUILHERME DRAY I CATARINA GRANADEIRO, An Introduction to Portuguese Employment and Labour Law, 2.ª Edição, Almedina, julho 2020
IVA CARLA VIEIRA, Guia Prático de Direito Comercial, 5.ª Edição, Almedina, julho 2020
JOÃO CURA MARIANO, Impugnação Pauliana, 3.ª Edição, Almedina, junho 2020
LUÍS FILIPE PIRES DE SOUSA, Noções de Psicologia do Testemunho, Almedina, julho 2020
MARIA DO ROSÁRIO PALMA RAMALHO, Tratado de Direito do Trabalho, Parte III – Situações Laborais Colectivas, Almedina, 3.ª Edição, julho 2020
RICARDO PEDRO I CARLA AMADO GOMES, Direito Administrativo de Necessidade e de Excepção, AAFDL Editora, julho 2020
SALVADOR DA COSTA, Os Incidentes da Instância, 11.ª Edição Atualizada e Ampliada, Almedina, julho 2020
IV.1.2. Generic Guidelines & Cia
Circulate letter no. 30224, of 01.07.2020, of Deputy General Director of VAT Management Area
Subject: VAT – Deadline extension of the periodic declaration and payment of the respective tax. Determination of the amount of tax on the sole basis of the system E-factura. (Supplement to the Circulate letter no. 30221, of 2020-05-12).
Circulate letter no. 20225, of 02.07.2020, of Deputy General Director of Income Tax and International Affairs
Subject: Evidence of the application requirements of Article 51 of the Corporate Income Tax code (“CIRS”) – Article 51-B.
Order no. 258/2020 – XXll, of 16.07.2020, of Assistant Secretary of State Tax Affairs
Order no. 259/2020 – XXll, of 16.07.2020, of Assistant Secretary of State Tax Affairs
IV.2.1. Economy, Finance and Taxation
On July 2, the Council of Ministers has approved the Decree-Law which proceeds to the public ownership shareholding held by Winterfell 2 Limited on Efacec Power Solutions, via nationalization of 71,73% of Company share capital, so that safeguards the public interest.
On the other hand on July 16, it was approved proposal for a law which creates the companies extraordinary bailout process, a temporary procedural mechanism was established, of an exceptional nature, intended exclusively for companies that are in a difficult economic situation or insolvency, imminent or current, in the context of the COVID-19.
In order to ensure that it is handled in a particularly quick manner, in addition to shortening the deadlines and the removal of the credits complaint stage, priority is given to this exceptional procedure over other urgent procedures (insolvency proceedings, special process of revitalisation (“PER”) and special process of payment agreement “PEAP”).
V. INDUSTRIAL PROPERTY
The several exceptional and temporary measures aimed at enabling and promoting the practice of acts by means of distance communication, within the scope of proceedings under the terms of the courts of peace, acts, proceedings and registration procedures conducted by the National Institute of Industrial Property, I. P. (INPI), namely regarding the practice of acts exclusively online and electronic communication, were extended until December 31, 2020.
The new Table of Industrial Property Fees was published, updating the fees for the various modalities of Industrial Property for the year 2020, and coming into force on July 1st.
The European Commission (EC) launched on June 18 a public consultation, open until September 4, 2020, with the objective to gather opinions/viewpoints of citizens and stakeholders on the future of digital education during, and after, the recovery period of COVID-19. This consultation will contribute to the updating of the next EC Digital Education Action Plan (DEAP).
The EC has published a roadmap for the Intellectual Property Action Plan, for which the public consultation period is open until 14 August 2020, to inform citizens and stakeholders about the Commission’s work in order to enable their feedback and effective participation in future consultation activities.
Citizens and stakeholders will be able to comment on the Commission’s understanding of the problems and the solutions presented for their resolution, as well as to make available any information they may deem as relevant.
The Commission will summarise the contributions received in a synthesis report, which will explain how the contributions have been taken into account and, where appropriate, why certain suggestions have not been accepted.
Key-words: Exceptional measures, temporary measures; Pandemia; Covid-19; the resumption of economic activity.; MGRA.
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS
- V. INDUSTRIAL PROPERTY