I. EDITORIAL – THE MANDATORY USE OF A MASK FOR ACCESS, CIRCULATION OR PERMANENCE IN OUTDOOR PUBLIC SPACES
In October we highlight the approval of the Law no. 62-A/2020 of October 27 which determines, exceptionally, the mandatory use of a mask for access, circulation or permanence in outdoor public spaces.
Also noteworthy, at the legislative level, is the Decree-Law no. 82/2020, of October, which regulates the carrying out of the inventory of public real estate assets with housing aptitude and proceeds to the creation of a public housing stock exchange, with the aim of contributing to the guarantee of the right to housing.
Concerning case-law, it is noteworthy the Judgement of the Constitutional Court no. 515/2020, Case no. 1095/2018, which declared, with mandatory legal force, the unconstitutionality, for violation of the numbers 1 and 4 of the Article 20 of the Constitution, of the point a) of the no. 5 Article 24, of Law no. 34/2004, of June 29, by the sense that the period interrupted by the application of paragraph 4 of the same Article starts with the notification to the patron appointed of his designation, when the applicant for legal aid does not know the designation because was not notified of it yet.
In addition, reference should be made to the Judgement of the Court of Justice of October 8, Case C-558/19, which clarified the interpretative meaning to be given to Article 49 of the Treaty on the Functioning of the European Union as regards the rectification or non-rectification of the taxable income of the branch of a non-resident or resident company, respectively, and as regards the applicability of the rules on transfer pricing in both situations.
Finally, in Miscellaneous we would like to point out the approval, in the Council of Ministers, of the Resolution renewing the situation of calamity in the national continental territory, from November 4, 2020 00:00, until 23:59 of November 15, 2020.
II. LEGISLATION
Decree-Law no. 79/2020, of October 1: Proceeds with the eighth amendment to Decree-Law no. 29/2006, of 15 February, which establishes the general principles relating to the organization and functioning of the national electricity system, as well as to the exercise of electricity generation, transmission, distribution and trading activities and the organization of electricity markets.
https://dre.pt/application/conteudo/144272498
Ordinance no. 232/2020, of October 1: Establishes the tax reporting obligations that are covered by the short term fair impediment regime, provided for in article 12-A of the Statute of the Certified Accountants Order, approved by Decree-Law 452/99, of 5 November.
https://dre.pt/application/conteudo/144272499
Decree-Law no. 79-A/2020, of October 1: Establishes an exceptional and transitory work reorganization regime, with a view to minimizing the risks of transmission of the SARS-CoV-2 infection and the COVID-19 disease pandemic.
https://dre.pt/application/conteudo/144272529
Decree-Law no. 81/2020, of October 2: Adapts the instruments created under the New Generation of Housing Policy and the Organic Law of the IHRU, I. P., to the Basic Law on Housing, in the framework of the Economic and Social Stabilisation.
https://dre.pt/application/conteudo/144454578
Decree-Law no. 82/2020, of October 2: Regulates the execution of the inventory of the State’s real estate assets with the capacity to housing use and the creation of a State property exchange for housing, in the under the Economic and Social Stabilisation Programme.
https://dre.pt/application/conteudo/144454579
Ordinance no. 233/2020, of October 2: Proceeds to revoke Ordinance no. 251/2012 of August 20, which establishes the system for granting incentives for the guarantee of power made available by electricity generating centres to the National Electricity System (SEN).
https://dre.pt/application/conteudo/144454581
Assembly of the Republic Resolution no. 77/2020, of October 6: Assessment of the application of the state of emergency, declared by the Decree of the President of the Republic no. 17-A/2020, of April 2.
https://dre.pt/application/conteudo/144454619
Decree-Law no. 83/2020, of October 6: Amends the sanctioning regimes applicable to the legal regimes of the Single European Sky and implements Regulation (EU) 2015/340.
https://dre.pt/application/conteudo/144454620
Assembly of the Republic Resolution no. 78/2020, of October 7: Assessment of the implementation of the state of emergency, declared by Decree of the President of the Republic no. 20-A/2020 of April 17.
https://dre.pt/application/conteudo/144730225
Declaration of Rectification no. 37/2020, of October 7: Declaration of rectification to Law no. 53/2020, of August 26, «Establishes rules for the protection of consumers of financial services, making the first amendment to Decree-Law no. 3/2010, of January 5».
https://dre.pt/application/conteudo/144730226
Declaration of Rectification no. 38/2020, of October 7: Declaration of rectification to Law no. 57/2020, of August 28, «Establishes rules for the protection of consumers of financial services, proceeding with the fourth amendment to Decree-Law no. 133/2009 of June 2, the first amendment to Law no. 66/2015 of July 6, and the third amendment to Decree-Law no. 74-A/2017 of June 23».
https://dre.pt/application/conteudo/144730227
Ordinance no. 234/2020, of October 8: Establishes the characteristics of the labels relating to the compulsory insurance contract and the exemption from the insurance obligation provided for in Decree-Law no. 291/2007 of August 21, as currently worded.
https://dre.pt/application/conteudo/144880099
Ordinance no. 235/2020, of October 8: Establishes the functional content and the requirements for access to the categories of seafarers, defined in Article 16 of Decree-Law no. 166/2019, of October 31.
https://dre.pt/application/conteudo/144880100
Council of Ministers Resolution no. 83/2020, of October 9: Authorises the expenditure relating to financial compensation to be granted by the State to Transtejo – Transportes Tejo, S. A., in the context of public service obligations.
https://dre.pt/application/conteudo/145012183
Ordinance no. 238/2020, of October 9: Approves the Statutes of the National Academy of Fine Arts (Academia Nacional de Belas-Artes).
https://dre.pt/application/conteudo/145012186
Declaration of Rectification no. 1/2020/A, of October 9: Amends and republishes the Legislative Assembly of the Autonomous Region of the Azores Resolution no. 36/2020/A of 14 August, «1st Supplementary Budget of the Legislative Assembly of the Autonomous Region of the Azores for the year 2020», published in the Diário da República (Official Gazette), 1st series, no. 158 of 14 August 2020.
https://dre.pt/application/conteudo/145012187
Law no. 59/2020, of October 12: Authorises the Government to approve a special regime applicable to expropriation and the constitution of administrative easements.
https://dre.pt/application/conteudo/145132197
Declaration of Rectification no. 39/2020, of October 12: Declaration of rectification to Law no. 45/2020, of August 20, which «Alters the exceptional regime for situations of late payment of rent in non-housing leases, in the context of the COVID-19 disease pandemic, proceeding with the second amendment to Law No. 4-C/2020, of April 6».
https://dre.pt/application/conteudo/145132198
Decree-Law no. 84/2020, of October 12: Amends the legal regime for access to and exercise of the insurance and reinsurance activity and partially transposes Directive (EU) 2019/2177.
https://dre.pt/application/conteudo/145132199
Ordinance no. 239/2020, of October 12: Amends Ordinance no. 282/2013 of August 29, which regulates various aspects of civil executive proceedings.
https://dre.pt/application/conteudo/145132201
Regional Regulatory Decree no. 21/2020/A, of October 12: Proceeds with the second amendment to Regional Regulatory Decree no. 15/2015/A of August 12, as amended by Regional Regulatory Decree no. 3/2016/A of 16 June, which regulates Regional Legislative Decree No. 23/2009/A of 16 December, as amended by Regional Legislative Decrees no. 16/2014/A of 1 September, and 1/2020/A of January 8, which approves the programme for access to housing through leasing, known as the Families with a Future Programme.
https://dre.pt/application/conteudo/145132202
Law no. 60/2020, of October 13: Authorises the Government to legislate on the prevention and investigation of accidents railways, partially transposing European Parliament Directive (EU) 2016/798 and the Council of 11 May 2016.
https://dre.pt/application/conteudo/145102349
Law no. 61/2020, of October 13: Authorises the Government to legislate on the posting of workers in the context of the provision of services, transposing Directive (EU) No. 2018/957 of the European Parliament and of the Council of 28 June 2018 and proceeding to the first amendment to Law 29/2017 of May 30.
https://dre.pt/application/conteudo/145102350
Law no. 62/2020, of October 13: Authorises the Government to legislate for work on board vessels of fishing and the activity of seafarers on board vessels, transposing the (EU) Directives 2017/159 of 19 December 2016 and 2018/131 of 23 January 2018.
https://dre.pt/application/conteudo/145102351
Decree-Law no. 85/2020, of October 13: Partially transposes into national law Directive (EU) 2016/798 of the European Parliament and of the Council of 11 May 2016 (Directive (EU) 2016/798) on railway safety.
https://dre.pt/application/conteudo/145102352
Ordinance no. 241/2020, of October 13: Establishes the regulatory rules necessary for the distribution of the net operating results of social games allocated to the Ministry of Labour, Solidarity and Social Security, under the terms of Decree-Law no. 56/2006 of 15 March 2006, as currently drafted.
https://dre.pt/application/conteudo/145102355
Ordinance no. 242/2020, of October 13: Defines the amounts and the model for distributing the fees charged for services provided under Decree-Law no. 93/2018, of November 13, as currently drafted.
https://dre.pt/application/conteudo/145102356
Decree-Law no. 86/2020, of October 14: Transposes several directives concerning car wrecks and the restriction of the use of certain hazardous substances in electrical and electronic equipment.
https://dre.pt/application/conteudo/145359680
Council of Ministers Resolution no. 87/2020, of October 14: Defines guidelines and recommendations regarding the organization of work in Public Administration in the context of the COVID-19 pandemic.
https://dre.pt/application/conteudo/145359681
Council of Ministers Resolution no. 88/2020, of October 14: Defines guidelines and recommendations concerning the organization and operation of public services for citizens and businesses in the context of the COVID-19 pandemic.
https://dre.pt/application/conteudo/145359682
Regional Legislative Decree no. 25/2020/A, of October 14: Creates the Cadastre Information Collection and Management System.
https://dre.pt/application/conteudo/145359684
Regional Regulatory Decree no. 22/2020/A, of October 14: Regulates the extraordinary bonus for holidays and the award of performance bonuses to professionals in the Regional Health Service.
https://dre.pt/application/conteudo/145359685
Council of Ministers Resolution no. 88-A/2020, of October 14: Declares the situation of calamity, in the context of the COVID-19 pandemic.
https://dre.pt/application/conteudo/145440403
Decree-Law no. 87/2020, of October 15: Ensures implementation in national law of Regulation (EU) No. 2015/757, on the monitoring, reporting and verification of CO2 emissions from maritime transport.
https://dre.pt/application/conteudo/145440390
Decree-Law no. 87-A/2020, of October 15: Amends the exceptional and temporary measures relating to the COVID-19 pandemic.
https://dre.pt/application/conteudo/145589087
Decree-Law no. 88/2020, of October 16: Proceeds with the third amendment to Decree-Law no. 135 -B/2017, of November 3, amended by Decree-Law no. 31/2018 of May 7, and Decree-Law no. 155/2019, of October 21, that approves the Competitiveness Replacement Support System and Productive Capacities, municipalities in the North and Central regions affected by the fires that occurred on 15 October 2017.
https://dre.pt/application/conteudo/145589080
Decree-Law no. 89/2020, of October 16: Establishes an exceptional regime for the constitution of open-ended employment legal relations infinite period in the organs, bodies, services, and other entities, including the public business sector of the Ministry of Health, for the direct provision of health care and for the provision of support services.
https://dre.pt/application/conteudo/145589081
Decree-Law no. 90/2020, of October 19: Proceeds to the first amendment to Decree-Law no. 46-A/2020, of July 30, which creates extraordinary support the progressive resumption of activity in a business crisis with a temporary reduction in the normal working period.
https://dre.pt/application/conteudo/145714398
Ordinance no. 246/2020, of October 19: Defines and regulates the terms and conditions applicable to exceptional and temporary exemption measures, total or partial payment of social security contributions, provided for in paragraph 4 of Resolution of the Council of Ministers no. 65/2020 of 28 August.
https://dre.pt/application/conteudo/145714400
Ordinance no. 247-A/2020, of October 19: Regulates the application of list II budget 2.8 attached to the VAT Code to the supply of electricity for consumption.
https://dre.pt/application/conteudo/145714405
Council of Ministers Resolution no. 88-B/2020, of October 22: Defines special measures applicable to the municipalities of Felgueiras, Lousada and Paços de Ferreira in the context of the calamity situation.
https://dre.pt/application/conteudo/146244086
Council of Ministers Resolution no. 89-A/2020, of October 26: Determines the limitation on the freedom of movement between different municipalities of the continental territory in the period between 00:00 on October 30 and 06:00 on November 3, 2020.
https://dre.pt/application/conteudo/146435548
Ordinance no. 255-A/2020, of October 27: Regulates Law no. 34/2020 of August 13, which approved the scheme to support the resumption and dynamisation of the activity of fairgrounds and itinerant entertainment companies.
https://dre.pt/application/conteudo/146606570
Law no. 62-A/2020, of October 27: Determines, exceptionally, the mandatory use of a mask for access, circulation, or permanence in outdoor public spaces.
https://dre.pt/application/conteudo/146435561
Ordinance no. 256/2020, of October 28: (i) Simplifies the process of recognition of the Statute of the Informal Caregiver, approved in attachment to Law no. 100/2019 of September 6, (ii) eliminates the need for a medical certificate that the applicant has the appropriate physical and psychological conditions and (iii) provides, until 31 December 2020, the possibility of late submission of documents involving medical acts.
https://dre.pt/application/conteudo/146608649
Law no. 63/2020, of October 29: Proceeds with the fifth amendment to Law no. 43/90 of August 10 (exercise of the petition right), amended by Law no. 6/93 of March 1, Law no. 15/2003, of June 4, Law no. 45/2007 of August 24 and Law no. 51/2017 of July 13.
https://dre.pt/application/conteudo/146809939
Ordinance no. 257-A/2020, of October 30: Establishes the exceptional regime of state participation in the price of adrenaline-containing medicinal products, in autoinjectors for the emergency treatment of severe acute allergic reactions (anaphylaxis).
III.1. Court of Justice of the European Union
Judgement of the Justice Court of October 1, Case C-405/19: Reference for a preliminary ruling. Taxation. Common system of value added tax (VAT). Sixth Directive 77/388/EEC. Article 17(2)(a). Right to deduct input tax. Services also having benefited third parties. Existence of a direct and immediate link with the taxable person’s economic activity. Existence of a direct and immediate link with one or more output transactions.
Summary:
“Article 17(2)(a) of the Sixth Council Directive 77/388/EEC of 17 May 1977, on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, must be interpreted as meaning that the fact that expenditure incurred by a taxable person, a property developer, in respect of advertising costs, administrative costs and estate agents’ commission, in connection with the sale of apartments, also benefits a third party, does not preclude that taxable person deducting in full the input value added tax paid on that expenditure where, firstly, there is a direct and immediate link between that expenditure and the taxable person’s economic activity and, secondly, the benefit to the third party is ancillary to the taxable person’s business purposes.
Article 17(2)(a) of the Sixth Directive 77/388, as amended by Directive 95/7, must be interpreted as meaning that the fact that the expenditure incurred by the taxable person also benefits a third party does not preclude that taxable person deducting in full the input value added tax paid in relation to that expenditure, in the case where that expenditure does not relate to the taxable person’s general overheads but constitutes costs attributable to particular output transactions, in so far as those costs maintain a direct and immediate link with the taxable person’s taxable transactions, which is for the referring court to assess with regard to all of the circumstances in which those transactions occurred.
Article 17(2)(a) of the Sixth Directive 77/388, as amended by Directive 95/7, must be interpreted as meaning that, in the case where a third party benefits from expenditure incurred by the taxable person, the fact that it is possible for the taxable person to pass on to the third party a part of the expenditure so incurred constitutes one of the elements, along with all of the other circumstances in which the transactions concerned occurred, which the referring court must consider for the purposes of determining the scope of the taxable person’s right to deduct value added tax.”
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0405
Judgement of the Justice Court of October 8, Case C-558/19: Reference for a preliminary ruling. Articles 49 and 63 TFEU. Freedom of establishment. Free movement of capital. Calculation of the taxable income of companies. Persons having a relationship of interdependence. Unusual advantage granted by a resident branch to a non-resident company. Correction of the taxable income of the branch of a non-resident company. No correction of taxable income in the event of an identical advantage granted by a branch to a resident company. Principle of free competition. Restriction on freedom of establishment. Justification. Balanced allocation of the power to tax between Member States. Proportionality.
Summary:
“Article 49 TFEU must be interpreted as not precluding, in principle, legislation of a Member State under which a transfer of money from a resident branch to its parent company established in another Member State may be reclassified as a ‘revenue-generating transaction’, with the consequent obligation to apply the rules on transfer pricing, whereas, if the same transaction had been effected between a company branch and a parent company, both of which were established in the same Member State, that transaction would not have been classified in the same way and the rules on transfer pricing would not have been applied.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0558
III.2 Constitutional Court
Judgment of the Constitutional Court no. 515/2020, Case no. 1095/2018:
The court declared, with mandatory legal force, the unconstitutionality, for violation of the numbers 1 and 4 of the Article 20 of the Constitution, of the point a) of the no. 5 Article 24 of legal regulation, of Law no. 34/2004, of June 29, by the sense that the period interrupted by the application of paragraph 4 of the same Article starts with the notification to the patron appointed of his designation, when the applicant for legal aid does not know the designation because was not notified of it yet.
http://www.tribunalconstitucional.pt/tc/acordaos/20200515.html
III.3. Courts of Justice
Judgement of the Lisbon Court of Appeal of October 8, Case no. 22/19.8T8PST.L1-2: Supply contract. Termination of contract. Abuse of rights.
Judgement of the Lisbon Court of Appeal of October 8, Case no. 2981/19.1T8LSB.L1-6: Lease contract. Payment of rent. Consignment on deposit. Currency.
III.4. Administrative and Tax Court
Judgement of the Supreme Administrative Court of October 14, Case no. 0865/12.3BELRS: Corporate income tax. Tax benefits. Food allowance. Surcharge. Job creation. Unemployment.
IV. BRIEFS
IV.1. DOCTRINE
IV.1.1. Monographs and Periodic Publications
Jorge Bacelar Gouveia, Direito da Segurança – Cidadania, Soberania e Cosmopolitismo, 2.ª Edição, Almedina, outubro 2020
Gustavo Brandão de Nascimento, Dos Honorários de Advogado – Em Especial, o Laudo Sobre Honorários, Almedina, outubro 2020
Diogo Coimbra Casqueiro, Da Renovação de Deliberações dos Sócios, Almedina, outubro 2020
Inês Magalhães Dias, Recuperação e Revitalização de Grupos de Sociedades, Almedina, outubro 2020
António Santos Justo, Introdução ao Estudo do Direito, 11.ª Edição, Petrony, outubro 2020
Francisco Cabral Metello, João Verdades dos Santos, Manual de Administração de Condomínios, Almedina, 2020
Paula Távora Vítor, Crédito Compensatório e Alimentos Pós-Divórcio, Almedina, outubro 2020
Francisco Cabral Metello, João Verdades dos Santos, Formulários BDJUR – Condomínio, Almedina, outubro 2020
Carlos Castelo Branco, José Eusébio Almeida, Estatuto dos Magistrados Judiciais Anotado e Comentado, Almedina, outubro 2020
Jorge dos Reis Bravo, Corpo e Prova em Processo Penal – Admissibilidade e Valoração, Almedina, outubro 2020
IV.1.2. Generic Guidelines & Cia
Circulate letter no. 30225, of 02.10.2020, of Deputy General Director of VAT Services
Subject: VAT- the new rules of simplification rules in intra-Community transactions.
Order no. 386/2020 XXII, of 12.10.2020, of Assistant Secretary of State Tax Affairs
Circulate letter no. 35133, of 12.10.2020, of Excise Duty and Vehicle Tax Services Department
Subject: Electricity production activity. Petroleum products taxation.
Order no. 404/2020 XXII, of 20.10.2020, of Assistant Secretary of State Tax Affairs
Order no. 412/2020 XXII, of 23.10.2020, of Assistant Secretary of State Tax Affairs
IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation
The Council of Ministers approved, on October 29, the Portugal 2030 Strategy, as a benchmark for public policy planning promoting the economic and social development of the country: a better demographic balance, greater inclusion, less inequality, digitalisation, innovation and qualifications as engines of development; climate transition and sustainability of resources; and an externally competitive and internally cohesive country.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=377
On the other hand, on October 31, the Resolution renewing the situation of calamity in the national continental territory, from November 4, 2020 00:00, until 23:59 of November 15, 2020, and, in view of the epidemiological situation in Portugal, special measure are extended to other municipalities, which had been established for the municipalities of Felgueiras, Lousada and Paços de Ferreira, with some additional changes that was also made.
The adopted special measures for those municipalities now covering new municipalities considering two criteria: (i) the quantitative criterion depending on the number of cases per 100,000 inhabitants; (ii) a second quantitative criterion, due to the proximity to another municipality that meets the quantitative criterion.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=378
V. INDUSTRIAL PROPERTY
The EUIPO Observatory, together with the Council of the European Union’s Working Group (“WG”) on Customs Cooperation, and Europol, carried out an investigation into cases of counterfeiting of labels and packaging, with a view to deepening knowledge of this trend of Intellectual Property (IP) rights infringement.
https://inpi.justica.gov.pt/Noticias-do-INPI/Inquerito-sobre-Etiquetas-e-Embalagens-Contrafeitas
The World Trade Organization (WTO) Secretariat has published a new information note on how the COVID-19 pandemic affected the global Intellectual Property (IP) system and what potential contributions IP can make in relation to the efforts undertaken in addressing the pandemic. The note provides an overview of IP-related measures implemented by WTO members and other stakeholders since the beginning of the crisis, underlining that the necessary innovation related to COVID-19 should be encouraged, shared, and disseminated, however, always respecting the rights and obligations inherent to IP rights.
https://inpi.justica.gov.pt/Noticias-do-INPI/O-Acordo-de-TRIPS-e-a-COVID-19
The 31st edition of the “BVT Energias Oceânicas” (Bulletin of Technological Surveillance), published in the framework of the Iberian project between the National Institute of Industrial Property (INPI) and the Spanish Patent and Trademark Office (OEPM), the national institutions that grant industrial property rights in Portugal and Spain respectively, has been made available. BVT’s main objective is to follow quarterly the latest news and publications of International (PCT) and European (EP) Patent Applications in the technical field of ocean energy.
https://inpi.justica.gov.pt/Noticias-do-INPI/31%C2%AA-edicao-do-BVT-Oceanicas-ja-esta-disponivel
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