I. EDITORIAL – AMENDMENTS TO THE VAT CODE, THE VAT SYSTEM IN INTRA-COMMUNITY TRANSACTIONS AND TO THE PERSONAL INCOME TAX CODE
In the month of August there were several and relevant legislative approvals, of which we point out Law no. 47/2020, of August 24 which amended the VAT Code, the VAT System in Intra-Community Transactions and the complementary legislation related to this tax, in the context of the e-commerce processing, as well as Law no. 48/2020, of August 2 which proceeded with the amendment to the Personal Income Tax Code (“IRS”).
Also noteworthy, at the legislative level, is Decree-Law no. 58-A/2020, of August 14, which made the second amendment to Decree-Law no. 27-B/2020, of June 19, extending the extraordinary support for maintaining employment contracts in a business crisis situation and creating other employment protection measures under the Economic and Social Stabilisation Programme.
Concerning case-law, it is worth noting the Judgement of the Constitutional Court no. 429/2020, of August 11, Case no. º 577/2020 in which was discussed the constitutionality of several provisions of the Decree forwarded to the Autonomous Region of Madeira Representative of the Republic, for signature as Regional Legislative Decree entitled as: «Adapts to Autonomous Region of Madeira the Law no. 45/2018, of August 10 establishing the legal regime of the individual and paid passenger transport of vehicles demarcated from an electronic platform».
Finally, in Miscellaneous, we would like to point out the approval of the Decree-Law that updates the retirement age and cancels the sustainability in the special regimes of lowering of the entitlement age for a retirement pension.
Decree-Law no. 47/2020, of August 3: Designates the competent authorities to ensure the registration and processing of data entered in the National Register of Animals Used in Circuses (CNAUC), the publication of data on the national portal for animals used in circuses (PNAUC), the special register of wild animals, seizures of undeclared animals and voluntary relocation of animals to reception centres.
Decree-Law no. 48/2020, of August 3: Determines the procedures to be followed regarding the submission of the SAF-T (PT) accounting file.
Ordinance no. 179/2020, of August 3: Approves the values of the revalorisation coefficients to be applied when updating registered annual salaries which serve as the basis for calculating pensions initiated during the year 2020.
Ordinance no. 180/2020, of August 3: Approves the Regulation of the Support Lines for the Cultural Sector under the Economic and Social Stabilisation Programme, contained in the annex to this ordinance, of which it forms an integral part.
Ordinance no. 180-A/2020, of August 3: Approves the General Regulation of the Institutional Competitions for Admission to Courses Taught in Private Higher Education Establishments, for Enrolment and Registration in the School Year 2020-2021, the text of which is published in an annex to this ordinance and of which it forms an integral part.
Ordinance no. 180-B/2020, of August 3: Approves the Regulation for the National Contest for Access and Admission to Public Higher Education, for Enrolment and Registration in the School Year 2020-2021, the text of which is published in an annex to this ordinance and of which it forms an integral part.
Decree-Law no. 49/2020, of August 4: Establishes the sanctioning regime applicable to breaches of rules on open internet access and regulated intra-EU (European Union) calls.
Implementing Decree no. 2/2020, of August 4: Establishes the regime for authorising the cultivation and industrial exploitation of varieties of hemp.
Ordinance no. 183/2020, of August 5: Creates the Portuguese as a Host Language courses («Português Língua de Acolhimento»), hereinafter referred to as “PLA courses”, as well as the rules governing their organisation, operation, and certification.
Ordinance no. 184/2020, of August 5: Extends the suspension of verification of the requirement of non-existence of debts of the applicant or promoting entities to the IEFP, I.P., for the approval of applications and payment of financial support by the IEFP, I.P., to the respective entities, within the scope of the employment and vocational training measures in force, determined through Ordinance no. 94-B/2020, of April 17.
Decree-Law no. 50/2020, of August 7: Extends the period of validity of Decree-Law no. 89/2010 of July 21, in its current wording, which approves the exceptional regime for the hiring of retired doctors by the services and establishments of the National Health Service.
Decree-Law no. 51/2020, of August 7: Proceeds to: a) The first amendment to Decree-Law no. 24/2020, of May 25, which regulates access, occupation and use of bathing beaches, in the context of the COVID-19 disease pandemic, for the 2020 bathing season; b) The second amendment to Decree-Law no. 10-F/2020, of March 26, amended by Decree-Law no. 20-C/2020, of May 7, which establishes an exceptional and temporary regime for compliance with fiscal obligations and social contributions, in the context of the COVID-19 disease pandemic.
Decree no. 5/2020, of August 7: Approves, for accession, the United Nations Convention on Contracts for the International Sale of Goods, adopted in Vienna on 11 April 1980.
Ordinance no. 191/2020, of August 10: Approves the official model of the solidarity supplement on the banking sector (model 57 declaration), as well as the instructions for filling it in, contained in the annex to this ordinance and which form an integral part thereof.
Ordinance no. 192/2020, of August 10: Establishes an extraordinary reinforcement of the social security financial contribution in 2020, provided for in Article 16(1) of Ordinance no. 196-A/2015 of July 1, as currently worded, aimed at private institutions of social solidarity or legally equivalent, for the social responses Residential Structure for Older People, Residential Home, Autonomous Residence and Home Support Service for the elderly and disabled people.
Ordinance no. 193/2020, of August 10: Establishes exceptional and temporary measures in response to the pandemic caused by COVID-19 disease within the framework of the financial support allocated to youth associations in the year 2020 as regards: a) The financial support programmes for youth associations, created by Ordinance no. 1230/2006, of November 15; b) The Formar+ Programme, created by Ordinance no. 382/2017, of December 20.
Law no. 31/2020, of August 11: Proceeds to the first amendment, by parliamentary consideration, to Decree-Law no. 20/2020 of May 1, which amends the exceptional and temporary measures relating to the COVID-19 disease pandemic.
Decree-Law no. 52/2020, of August 11: Establishes the data controller responsible and regulates the intervention of the doctor in the STAYAWAY COVID digital system, for personal mobile devices with “iOS” or “Android” operating system.
Decree-Law no. 53/2020, of August 11: a) Transposes Council Directive (EU) 2020/876 of 24 June 2020 into national law, to address the urgent need to postpone certain deadlines for submission and exchange of information in the field of taxation due to the COVID-19 pandemic; b) Creates the monitoring Forum on the implementation of Law no. 26/2020, of July 21 (DAC Forum 6); c) Establishes the fifth amendment to Decree-Law no. 219/2001, of August 4, which establishes the tax regime for securitization operations carried out under Decree-Law no. 453/99, of November 5.
Decree-Law no. 54/2020, of August 11: a) Approves the benefit granted to organisers of congresses, fairs, exhibitions, seminars, conferences and similar, by refunding the amount equivalent to value added tax (VAT) incurred and not deductible with the expenses related to the organisation of those events and the respective procedure; b) Approves the procedure for refunding the amount corresponding to VAT charged on non-profit initiatives carried out to raise funds to support the victims of the fires that occurred in 2017 in the Pedrógão Grande area; c) Carries out the third amendment to Decree-Law no. 84/2017, of July 21, which regulates the benefit granted to the Armed Forces, the security forces and services, the fire-fighters, the Santa Casa da Misericórdia de Lisboa, private social solidarity institutions, non-profit entities of the national science and technology system and the Instituto da Conservação da Natureza e das Florestas, I. P. (ICNF, I. P.), by refunding all or part of the amount equivalent to VAT borne on certain purchases of goods and services.
Law no. 32/2020, of August 12: Creates an extraordinary mechanism for settling debts for non-payment of tuition fees, fees, and emoluments in public higher education institutions for students in public higher education.
Law no. 33/2020, of August 12: Adapts the composition of the Commission for Access to Administrative Documents to the incompatibility regime provided for in the Statute for Members, making the second amendment to Law no. 26/2016, of August 22, which approves the regime for access to administrative and environmental information and the reutilisation of administrative documents.
Decree-Law no. 55/2020, of August 12: Establishes the transfer of powers to municipal bodies and intermunicipal entities in the field of social action, under Articles 12 and 32 of Law no. 50/2018, of August 16, and also proceeds with the first amendment to Decree-Law no. 115/2006, of 14 June, which regulates the social network.
Decree-Law no. 56/2020, of August 12: Proceeds with the third amendment to Decree-Law no. 21/2019 of January 30 and the second amendment to Decree-Law no. 23/2019 of January 30, in order to extend the deadline for the transfer of powers to local authorities and intermunicipal entities in the fields of education and health.
Decree-Law no. 57/2020, of August 12: Proceeds with the reprogramming of the courses for the formation of magistrates begun and to begin between September 2018 and December 2022, reducing the periods of initial formation of the XXXIV, XXXV, XXXVI, XXXVII and XXXVIII Courses for the Formation of Magistrates.
Council of Ministers Resolution no. 61/2020, of August 12: Proceeds with the reprogramming of Portugal’s participation in Expo 2020 Dubai.
Regional Legislative Decree no. 21/2020/A, of August 12: Second amendment to Regional Legislative Decree no. 2/2020/A of January 22, which approves the Annual Regional Plan for 2020.
Law no. 34/2020, of August 13: Establishes measures to support and protect the activity of fairgrounds and touring entertainment and catering businesses in the context of the epidemic caused by COVID-19 disease.
Law no. 35/2020, August 13: Alters the rules on local government debt for the years 2020 and 2021 and extends the deadline for exceptional measures applicable to local authorities in the context of the COVID-19 disease pandemic by making the second amendment to Laws no. 4-B/2020 of 6 April and 6/2020 of April 10.
Law no. 36/2020, of August 13: Suspension of expiry dates of employment contracts for workers in science, technology, and higher education institutions.
Decree-Law no. 58/2020, of August 13: Proceeds with the fourth amendment to Decree-Law no. 325/2003, of December 29, amended by Decree-Laws no. 182/2007, of May 9, and 190/2009, of August 17, and by Law no. 118/2019, of September 17, which defines the headquarters, organization and area of jurisdiction of the administrative and tax courts, implementing the respective statutes.
Ordinance no. 195/2020, of August 13: Regulates the requirements for creating the two-dimensional bar code (QR code) and the single document code (ATCUD), referred to in Article 7(3) of Decree-Law no. 28/2019 of February 15.
Regional Legislative Decree no. 22/2020/A, of August 13: Proceeds with the second amendment to Regional Legislative Decree no. 1/2020/A, of January 8, amended by Regional Legislative Decree no. 7/2020/A, of March 9, which approves the Budget of the Autonomous Region of the Azores.
Ordinance no. 195-A/2020, of August 13: Amends Ordinance no. 41/2020, of February 13, adjusting the transition period of the guaranteed remuneration regime, applicable to electricity generating centres that use urban waste as a source of electricity production.
Implementing Decree no. 3/2020, of August 14: Proceeds with the first amendment to Implementing Decree no. 2/2018, of January 24, which regulates the conditions of organization and operation of care structures, emergency reception responses and shelters that integrate the national network of support for victims of domestic violence, provided for in Law no. 112/2009, of September 16, in its current wording.
Legislative Regional Assembly of the Azores Resolution no. 36/2020/A, of August 14: Approves the 1st Supplementary Budget of the Legislative Assembly of the Autonomous Region of the Azores for the year 2020.
Regional Regulatory Decree no. 19/2020/A, of August 14: Proceeds with the sixth amendment to Regional Regulatory Decree no. 19/2014/A, of September 22, and the fifth amendment to Regional Regulatory Decree no. 21/2014/A, of October 10.
Council of Ministers Resolution no. 63-A/2020, of August 14: Extends the declaration of the contingency and alert situation in the framework of the COVID-19 pandemic.
Decree-Law no. 58-A/2020, of August 14: Proceeds with the second amendment to Decree-Law no. 27-B/2020, of June 19, amended by Decree-Law no. 37/2020, of July 15, which extends the extraordinary support for maintaining employment contracts in business crisis and creates other employment protection measures, within the framework of the Economic and Social Stabilisation Programme.
Decree-Law no. 58-B/2020, of August 14: Alters the exceptional and temporary measures relating to the COVID-19 disease pandemic.
Decree-Law no. 60/2020, of August 17: Establishes the origin guarantees issuing mechanism for low-carbon gases of renewable source, updating energy targets from the renewable sources.
Law no. 38/2020, of August 18: Exceptional and temporary measures to safeguard employee and students of public higher education rights.
Law no. 39/2020, of August 18: Amends the sanctioning regime applicable to crimes against pet animals, making the fiftieth amendment to the Criminal Code, to the thirty-seventh amendment to the Code of Criminal Procedure and the third amendment to Law no. 92/95 of 12 September.
Law no. 40/2020, of August 18: Reinforces the sanctioning and procedural framework on crimes against the freedom and minors sexual self-determination and establishes the information and blocking requirement of the child pornography content, concluding the transposition of the Directive 2011/93/EU of the European Parliament and the Council of 13 December 2011, amending the Criminal Code and the Decree-Law no. 7/2004, of January 7.
Law no. 41/2020, of August 18: Third amendment to Law no. 151/2015, of September 11, the Budget Framework Law, and the first amendment to the Law no. 2/2018, of January 29.
Law no. 42/2020, of August 18: First amendment, by parliamentary consideration, to the Decree-Law no. 19/2020, of April 30, which establishes a temporary and exceptional scheme to support humanitarian associations of firefighters in the context of the COVID-19 pandemic.
Law no. 43/2020, of August 18: Establishes the temporary tax system of the organizers of UEFA Champions League 2019/2020 Finals and extends value added tax exemption of the intra-Community transmissions and acquisitions of necessary goods for combating the COVID-19 pandemic, amending the Law no. 13/2020, of May 7.
Ordinance no. 201-A/2020 of August 19: Creates the Social Equipment Network Extension Program – 3rd Generation, hereinafter referred to as PARES 3.0, and approves its rules of procedure.
Law no. 45/2020, of August 20: Amends the exceptional scheme in cases of late lease payment in non-housing lease agreements, in the context of the COVID-19 disease pandemic, and proceeds with the second amendment to the Law no. 4-C/2020 of April 6.
Council of Ministers Resolution no. 64-A/2020, of August 20: Delegates powers to the member of the Government responsible by the health sector for practice of several acts and approves the realization expenses on the acquisition of vaccines against COVID-19, under the centralised European procedure.
Organic Law no. 1-A/2020, of August 21: Ninth amendment to Organic Law no. 1/2001, of August 14, which regulates the election of local authorities holders.
Organic Law no. 1-B/2020, of August 21: Ninth amendment to the Electoral Law for the Legislative Assembly of the Autonomous Region of the Azores, approved by Decree-Law no. 267/80 of August 8.
Decree of the President of Republic no. 31/2020, of August 22: Sets out, in line with Article 19 of Decree-Law no. 267/80, of August 8, and within the normal period provided for in this document, 25 of October of 2020 for the election of members of the Legislative Assembly of the Autonomous Region of the Azores.
Law no. 47/2020, of August 24: Transposes Articles 2 and 3 of Directive (EU) 2017/2455, of 5 December 2017, and the Council Directive (EU) 2019/1995 of 21 November 2019, amending the VAT Code, the VAT System in Intra-Community Transactions and the complementary legislation related to this tax, in the context of the e-commerce processing.
Law no. 48/2020, of August 24: Proceeds with the amendment to the Personal Income Tax Code (“IRS”), approved by the Decree-Law no. 442 -B/88, of November 30, and to the first amendment to the Law no. 119/2019, of September 18, clarifying the retroactive scope of the Article 74 of Personal Income Tax Code.
Law no. 49/2020, of August 24: Harmonises and simplifies certain rules in the value added tax system in intra-Community trade, transposing council directives (EU) 2018/1910, of 4 December 2018, and 2019/475 Council of 18 February 2019, and amending the Value Added Tax Code, the VAT System in Intra-Community Transactions and the Excise Duty Code.
Law no. 50/2020, of August 25: Transposes the Directive (EU) 2017/828 of the European Parliament and of the Council, of 17 May 2017, as regards the encouragement of long-term shareholder engagement, amends the Securities Market Code, the General Regime and the General Regime of the Collective Investment Entities and Financial Corporations, and repeals the Law no. 28/2009, of June 19.
Law no. 51/2020, of August 25: Proceeds with the fourth amendment to the Law no. 17/2003, of June 4 (citizens legislative initiative), amended by Law no. 26/2012, of June 24, by Organic Law no. 1/2016, of August 26, and by Law no. 52/2017, of July 13.
Law no. 53/2020, of August 26: Establishes the financial services consumer protection rules, making the first amendment to the Decree-Law no. 3/2010, of January 5.
Law no. 54/2020, of August 26: Reinforces the measures of domestic violence victims protection, making the sixth amendment to the Law no. 112/2009, of September 16.
Law no. 55/2020, of August 27: Defines the criminal policy aims, priorities, and guidelines, for the 2020-2022 biennium, in compliance with the Law no. 17/2006, of May 23, which approves Criminal Policy Framework Law.
Ordinance no. 205/2020, of August 27: Sets out the justice rate percentage amount to be assigned to the Social Security Executive Collection Fund (“FCE”).
Council of Ministers Resolution no. 68-A/2020, of August 28: Extends the declaration of the contingency and alert situation, in the context of the COVID-19 disease pandemic.
Ordinance no. 207-A/2020, of August 28: Second amendment to the Ordinance no. 136/2020, of June 4, amended by Ordinance no. 139-A/2020, of June 12, establishing, for 2020, the identification of coastal bathing water and of transition and of the inner bathing water, laying down the its bathing seasons, and the qualification, as bathing beaches, the sea beaches and the river and lake water beaches, of the national territory.
Law no. 58/2020, of August 31: Transposes the Directive (EU) 2018/842 of the European Parliament and of the Council, of 30 May 2018, amending the Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and the Directive (EU) 2018/1673 of the European Parliament and of the Council, of 23 October 2018, on combating money laundering by criminal law.
III.1. Court of Justice of the European Union
III.2 Constitutional Court
Judgment of the Constitutional Court no. 429/2020, of August 11, Case no. 577/2020:
The object of the aforementioned appeal was the constitutional conformity of the rule contained in the point b) of 1st paragraph of the Article 12 of the VAT Code with the constitutional principles of equality and fundamental right to health, both set out in Articles 13 and 64 of Portuguese Constitution.
The Court considered that the Article 64 of Portuguese Constitution does not require any price fixing regarding private healthcare facilities. There is no legal basis interpretation in support of restriction regarding the waiver of VAT exemption. The competition is carried out by user’s free choice between the public (providing VAT exempt services) or private sector offer (which is not VAT exempt therefore more expensive).
In the light of foregoing considerations, the Constitutional Court decided that there is no such unreasonable distinction contained in Article 12, paragraph 1, point b) of VAT Code, between the public and private health facilities users, deciding that such VAT Code regulation is not unconstitutional.
“In the light of all of the foregoing considerations, the answer to the question referred is that the provisions of the Decree forwarded to the Autonomous Region of Madeira Representative of the Republic, for signature as Regional Legislative Decree entitled as: Adapts to Autonomous Region of Madeira the Law no. 45/2018, of August 10 establishing the legal regime of the individual and paid passenger transport of vehicles demarcated from an electronic platform, approved by the Legislative Assembly of Madeira in plenary vote on 9 July 2020, the Court has decided:
a) Not to assess the unconstitutionality of the provisions concerning the Article 6/ No. 4 c), of the Article 10/no. 4 c), and of the Article 10/no. 9 of the Decree, insofar as it requires the element of the applications the indication of the head office in the Autonomous Region of Madeira and therefore no to assess the unconstitutionality of the Article 10/No. 9 provisions of those Articles;
b) Not to assess the unconstitutionality of the provisions concerning the Article 6/ No. 4 c), of the Article 10/No. 4 c), insofar as it requires the element of the applications the indication of the effective and permanent establishment in the Autonomous Region of Madeira and therefore no to assess the unconstitutionality of the Article 10/No. 9 provisions of those Articles;
c) Not to assess the unconstitutionality of the provision of the Article 12 of the Decree.”
III.3. Courts of Justice
Judgement of the Porto Court of Appeal of August 3, Case no. 44/19.9TXLSB-C.P1: Modification of the execution of the prison sentence. Housing permanence regime. Prisoner with a serious illness. Principle of investigation. Principle of material truth. Right to effective judicial protection.
III.4. Administrative and Tax Court
IV.1.1. Monographs and Periodic Publications
José Fontes, Curso Sobre o Código do Procedimento Administrativo, 8.ª Edição, Almedina, agosto 2020
Fernando Alves Correia, Direito do Ordenamento do Território, 12.ª Edição, Almedina, agosto 2020
Paulo Câmara (coord.), Administração e Governação de Sociedades, Almedina, agosto 2020
Fernanda Carrilho, Dicionário de Latim Jurídico, 3.ª Edição, Almedina, agosto 2020
IV.1.2. Generic Guidelines & Cia
Circulate letter no. 7/2020, of 13.08.2020, of General Director of Corporate Income Tax
Subject: International Financial Reporting Standard (IFRS) 16.
Order no. 330/2020– XXII, of 13.08.2020, of Assistant Secretary of State Tax Affairs
Circulate letter no. 90 030, of 20.08.2020, of Deputy General Director of Tax collection Area
Subject: Taxpayer identification number assignment (“NIF”) to the Andorran citizens – tax representation.
Order no. 338/2020 XXII, of 24.08.2020, of Assistant Secretary of State Tax Affairs
Circulate letter no. 15787/2020, of 24.08.2020, of Deputy General Director of Customs Management Area
Subject: Exchange rates for the customs value determination.
IV.2.1. Economy, Finance and Taxation
The Council of Ministers approved on 14 November 2019 the Decree-law that regulates the XXII Government organization and functioning. The legal framework goal is to achieve the suitable structure of collaborative Government as well as to meet the European Union Presidency challenges in 2021. The strategic challenges, such as the climate changing, demography, inequality and digital society, of creativity and innovation, are conferred to Government officials, with the function to ensure that all of government areas collaborate in the elaboration of the action programs, and in the prediction of the joint exercise of administrative powers (of direction, supervision and authority), which are shared by several Government members, according to their areas of intervention.
Also, it has assessed the level of implementation of the resolutions adopted under Resolution no. 139/2019, which approved a set of measures to prevent and combating domestic violence, with incidence on various governmental areas, namely internal administration, justice, education, social security and health.
At the same time was approved the Code of Conduct of the XXII Constitutional Government, establishing a set of rules aim to ensure that government activity is guided by principles of good administration, transparency, impartiality, integrity and interinstitutional respect. Through this resolution, the Government defines the conduct guidelines for the members of the Government, the members of their cabinets and the other senior officials of the Public Administration, thereby fulfilling the objective of valuing the exercise of public positions as a way of improving the quality of democracy and increasing citizens’ trust in public institutions.
In addition, approval was given to the Decree-Law amending the Public Contracts Code and Decree-Law regulating the State intervention in the definition and global monitoring of public-private partnerships, and to the Decree-Law that amends the law regulating the activities of plant protection products for professional use and adjuvants of plant protection products and defining the monitoring procedures of the use of plant protection products, transposing the Directive (EU) no. 2019/782. This aims to promote the reduction of the risks and effects of pesticide use on human health and on the environment, the use of integrated protection and alternative approaches or techniques, and also the reduction of dependence on pesticide use.
On August 27, the Council of Ministers has approved the Decree-Law amending the following exceptional and temporary measures, in the context of the COVID-19 disease pandemic:
- Implements the adequacy of protection measures for workers and self-employed workers under the general social security system, amounting to 100% of reference salary, for a maximum of 28 days, in the context of prophylactic isolation benefit or of the sickness benefit, in force from July 25;
- Amends the Decree-Law concerning the exceptional measures of educational and training activities organization and operation, in the context of pandemic, reinforcing the vacancies number in the higher education general access scheme.
On the same date, it was approved the Decree-Law that updates the retirement age and cancels the sustainability in the special regimes of lowering of the entitlement age for a retirement pension.
V. INDUSTRIAL PROPERTY
In response to the COVID-19 pandemic and as part of the European Union (EU) actions to combat it, EUIPO recently launched the “Ideas Powered for Business” platform for Small and Medium-sized Enterprises (SMEs) in the EU. The platform is a first delivery of the new European Cooperation Programme called “SME Programme”, a key project created under the Strategic Plan 2025, which aims to help SMEs get the most out of their Intellectual Property Rights and which contains a number of new services.
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS
- V. INDUSTRIAL PROPERTY