I. EDITORIAL – RENEWAL OF THE DECLARATION OF THE STATE OF EMERGENCY
In the month of November we highlight, at a legislative level, the renewal of the declaration of the state of emergency, based on the verification of a situation of public calamity, through the Decree of the President of the Republic no. 59-A/2020, of November 20.
Also noteworthy, at the legislative level, is Law no. 65/2020, of November 4, which established the conditions under which the court may decree the alternate residence of the child in the event of divorce, judicial separation of persons and property, or declaration of nullity or annulment of the marriage of the parents, thus amending the Civil Code. Finally, reference should also be made to Law no. 75/2020, of November 27, which has created an extraordinary process of business viability and established various support measures for companies affected by the economic crisis resulting from the COVID-19 disease pandemic.
Concerning case-law it is noteworthy the Judgment of the Constitutional Court no. 641/2020, Case no. 1106/18, which decided that the rule contained in the second part of Article 637(2) of the Code of Civil Procedure is unconstitutional when it establishes that, in the appeals invoking a case-law conflict that is intended to be solved, the applicant must attach, under penalty of immediate rejection, a copy, even if not certified, of the judgment of the ground of appeal, without first being invited to remedy that omission, for infringement of Article 20, paragraphs 1 and 4 of the Constitution.
In its turn, mention should be made of the Judgement of the Constitutional Court no. 644/2020, Case no. 30/19, which deemed unconstitutional the provision of article 248(4) of the Insolvency and Corporate Recovery Code (CIRE), in so far as it prevents the obtainment of legal aid, in the form of exemption of payment of justice fee and other costs of the proceedings, to debtors who have obtained the discharge of remaining liabilities and whose insolvency estate and disposable income were insufficient to pay in full the costs of the discharge procedure, without taking into account their actual economic situation, for violation of Articles 20(1) and 13(2) of the Constitution.
Finally, in the context of Miscellaneous, we underline the approval, by the Council of Ministers, of the Decree-Law that amends the system of incentives for the adaptation of business activity to the context of Covid-19.
Council of Ministers Resolution no. 92-A/2020 of November 2: Declares the situation of calamity in the context of the COVID-19 pandemic disease.
Decree-Law no. 93/2020 of November 3: Establishes safety rules for passenger ships and rules for the processing of data for persons travelling on it and establishes a system of inspections for other vessels, transposing Directive (EU) 2017/2108, Directive (EU) 2017/2109 and Directive (EU) 2017/2110.
Decree-Law no. 94-A/2020 of 3 November: Amends the exceptional and temporary measures relating to the COVID-19 pandemic.
Law no. 65/2020 of November 4: Establishes the conditions under which the court may decree the alternate residence of the child in case of divorce, legal separation of persons and property, declaration of nullity or annulment of the marriage of the parents, amending the Civil Code.
Decree-Law no. 96/2020 of November 4: Provides for the waiver of the collection of moderator fees in consultations and in all complementary diagnostic and therapeutic tests prescribed within the primary health care network.
Decree of the President of the Republic no. 51-U/2020 of 6 November: Declares the state of emergency, based on the verification of a situation of public calamity.
Assembly of the Republic Resolution no. 83-A/2020 of November 6: Authorization of the declaration of the state of emergency.
Decree no. 8/2020 of November 8: Regulates the application of the state of emergency decreed by the President of the Republic.
Organic Law no. 2/2020, of November 10: Ninth amendment to Law no. 37/81 of October 3, which approves the Nationality Law.
Organic Law no. 3/2020, November 11: Exceptional and temporary regime for the exercise of early voting rights for voters who are in mandatory confinement, under the Covid-19 disease pandemic, in electoral and referenda acts to be carried out in 2021.
Council of Ministers Resolution no. 96-B/2020 of 12 November: Extends the declaration of the situation of calamity in the context of the pandemic of the disease COVID-19.
Council of Ministers Resolution no. 98/2020, of November 13: Approves the Portugal 2030 Strategy.
Law no. 76/2020, of November 16: Proceeds with the first amendment to the Administrative Procedure Code, approved in annex to Decree-Law no. 4/2015, of January 7, also establishing a transitional regime for the simplification of common administrative procedures provided for in the general law, and special administrative procedures provided for in sectoral legislation.
Decree-Law no. 97/2020, of November 16: Amends the status of designations of origin and geographical indication of the Douro Demarcated Region.
Regional Regulatory Decree no. 23/2020/A, of November 16: Regulates, in the Autonomous Region of the Azores, the transitional imposition of the compulsory use of masks in public spaces approved by Law no. 62-A/2020, of October 27.
Ordinance no. 265-A/2020, of November 16: Proceeds with the second amendment to Ordinance no. 86/2020, of April 4, which establishes a set of exceptional and temporary measures relating to the epidemiological situation of COVID-19 disease, under operation no. 10.2.1.4, “Short chains and local markets”, of action no. 10.2, “Implementation of strategies”, integrated in measure no. 10, “LEADER”, of area no. 4, “Local development”, of the Rural Development Programme for the Continent (PDR 2020).
Ordinance no. 265-B/2020, of November 16: Establishes the conditions and procedures applicable to the allocation, in 2020, of the financial support provided for in article 309-A of Law no. 2/2020, as amended by Law no. 27-A/2020, of July 24, which exclusively concerns energy used in agricultural and livestock production and in storage, conservation and marketing activities for agricultural products.
Law no. 73/2020, of November 17: Modifies the rules for appointing the governor and the other members of the board of directors of the Banco de Portugal, amending the Organic Law of the Banco de Portugal, approved in annex to Law no. 5/98 of January 31.
Assembly of the Republic Resolution no. 85/2020, of November 17: Budget of the Assembly of the Republic for 2021.
Decree-Law no. 98/2020, of November 18: Proceeds with: a) The third amendment to Decree-Law no. 27-B/2020, of June 19, which extends the extraordinary support for the maintenance of employment contracts in business crisis situations and creates other employment protection measures, under the Economic and Social Stabilisation Programme; b) The second amendment to Decree-Law no. 46-A/2020, of July 30, which creates the extraordinary support for the gradual resumption of activity in companies in business crisis situations with a temporary reduction of the normal working period.
Ordinance no. 266/2020, of November 18: Proceeds with the fourth amendment to the regulation of the Entrepreneurship and Employment Incentive System, approved by Ordinance no. 105/2017, of March 10, in its current version.
Ordinance no. 268/2020, of November 18: Establishes the regime for implementing the exceptional and temporary measure provided for in Article 39b of Regulation (EU) No. 1305/2013 of the European Parliament and of the Council of December 17, as currently worded, under the Rural Development Programme for the Continent (PDR 2020).
Law no. 74/2020, of November 19: Transposes into national law the Directive (EU) 2018/1808 of the European Parliament and of the Council, of 14 November 2018, amending Law no. 27/2007 of 30 July 2007, which approves the Law on Television and Audiovisual Services on Demand, and Law no. 55/2012 of 6 September 2012, concerning the promotion, development and protection of the art of cinema and cinematographic and audiovisual activities.
Ordinance no. 269/2020, of November 19: Proceeds with the first amendment to Ordinance no. 178/2020, of July 28, which establishes a system of incentives for adapting the activity of social responses to the context of COVID-19 disease, hereinafter called the Adaptar Social + Programme.
Ordinance no. 270/2020, of November 19: Regulates the matters relating to the publication of tender procedures, deadlines, form of application, notifications and use of electronic means.
Regional Regulatory Decree no. 24/2020/A, of November 19: Regulates the implementation of paragraph e) of no. 1 of Article 5 of the Decree no. 8/2020, of November 8, when travelling to the territory of the Autonomous Region of the Azores by air.
Assembly of the Republic Resolution no. 87/2020, of November 20: Approves the Protocol to the Convention on Forced or Compulsory Labour, 1930, adopted by the International Labour Conference at its 103rd Session, held in Geneva on 11 June 2014.
Council of Ministers Resolution no. 101/2020, of November 20: Approves a set of measures aimed at companies in the context of the COVID-19 pandemic.
Council of Ministers Resolution no. 102/2020, of November 20: Recognizes the verification of exceptional conditions and allows recourse to the Municipal Emergency Fund for financial aid to municipalities affected by the Elsa and Fabien depressions.
Decree of the President of the Republic no. 59-A/2020, of November 20: Renews the declaration of the state of emergency on the basis of a public disaster situation.
Assembly of the Republic Resolution no. 87-A/2020, of November 20: Authorisation for the renewal of the state of emergency.
Assembly of the Republic Resolution no. 87-B/2020, of November 20: Approves exceptional procedures for the participation of Deputies in plenary sessions and respective attendance register.
Decree no. 9/2020 of November 21: Regulates the implementation of the state of emergency decreed by the President of the Republic.
Decree-Law no. 99/2020, of November 22: Amends the exceptional and temporary measures relating to the COVID-19 disease pandemic.
Declaration of Rectification no. 47/2020, of November 22: Rectifies Decree no. 9/2020 of November 21 of the Presidency of the Council of Ministers regulating the implementation of the state of emergency decreed by the President of the Republic.
Assembly of the Republic Resolution no. 88/2020, November 23: Approves the Convention between the Portuguese Republic and the Republic of Kenya to Eliminate Double Taxation of Income and to Prevent Tax Fraud and Tax Evasion, signed in Lisbon on 10 July 2018.
Council of Ministers Resolution no. 103/2020, of November 23: Establishes a single system for the reception and integration of applicants and beneficiaries of international protection.
Ordinance no. 270-A/2020, of November 23: Amends Ordinance no. 1473-B/2008, of December 17, which approved the amount of fees due to the National Communications Authority (ANACOM).
Declaration of Rectification no. 47-A/2020, of November 23: Rectifies Decree-Law no. 76/2020 of September 25, which adapts to technical progress the new definitions of the basic units of the International System of Units, transposing Directive (EU) 2019/1258.
Council of Ministers Resolution no. 104/2020, of November 24: Approves the Public Administration Resource Efficiency Programme for the period up to 2030.
Ordinance no. 271/2020, of November 24: Proceeds with: a) The definition of the specific conditions of the principle of free attendance of day-care centres, in compliance with the provisions of article 146(1) of Law no. 2/2020 of March 31, which approved the State Budget for 2020; b) The second amendment to the regulation on family contributions due for the use of social services and equipment, annexed to Ordinance no. 196-A/2015, of July 1, which establishes the rules governing family contributions due for the use of services and equipment where social responses are developed applicable to users covered by a cooperation agreement concluded between private social solidarity institutions or legally equivalent and the Social Security Institute, I. P.
Regional Regulatory Decree no. 25/2020/A: Amends Regional Regulatory Decree no. 24/2020/A, of November 19, which regulates the implementation of Article 5(1), paragraph e), of Decree no. 8/2020, of November 8, when travelling to the territory of the Autonomous Region of the Azores by air.
Decree of the President of the Republic no. 60-A/2020, of November 24: Sets the date of 24 January 2021 for the election of the President of the Republic.
Ordinance no. 271-A/2020, of November 24: Approves the Regulation of the APOIAR Programme.
Declaration of Rectification no. 47-B/2020, of November 24: Second rectification to Decree no. 9/2020 of November 21, of the Presidency of the Council of Ministers, regulating the implementation of the state of emergency decreed by the President of the Republic.
Ordinance no. 272/2020, of November 25: Third amendment to Ordinance no. 933/2006, of September 8, which approves the Security Regulations for Manufacture, Repair, Trade and Arms Storage Facilities.
Ordinance no. 273/2020, of November 25: First amendment to Ordinance no. 33/2011, of January 13, which approves the reference list of obsolete munitions.
Ordinance no. 273-A/2020, of November 25: Establishes exceptional and temporary measures within the framework of the COVID-19 pandemic applicable to operational programmes in the fruit and vegetable sector and respective financial assistance, regulated, at national level, by Ordinance no. 295-A/2018, of November 2, or Ordinance no. 1325/2008, of November 18.
Ordinance no. 273-B/2020, of November 25: Establishes exceptional and temporary measures within the framework of the COVID-19 pandemic, applicable to the year 2021, of the National Apiculture Programme (PAN) for the three-year period 2020-2022, regulated at national level by Ordinance no. 325-A/2019 of September 20, amended by Ordinance no. 387-A/2019 of October 25.
Assembly of the Republic Resolution no. 89/2020, of November 26: Approves the Agreement between the Portuguese Republic and the United States of America on the Sharing of Goods Declared Lost or of Goods of Equivalent Value, signed in Lisbon on 17 December 2019.
Decree-Law no. 100/2020, of November 26: Extends the social tariff for electricity and the social tariff for natural gas to further situations of social and economic insufficiency.
Decree-Law no. 101/2020, of November 26: Proceeds with the creation of a special license for family restructuring and the respective subsidy, in the scope of the crime of domestic violence.
Law no. 75/2020, of November 27: a) Establishes an exceptional and temporary scheme to extend the deadline for concluding negotiations to approve a recovery plan or payment agreement, as well as to grant a deadline for adapting the proposed insolvency plan, in the context of the COVID-19 pandemic; b) Extends the privilege provided for in paragraph 2 of Article 17-H of the Insolvency and Corporate Recovery Code (CIRE), approved in annex to Decree-Law no. 53/2004, of March 18, to the partners, shareholders or any other persons especially related to the company who finance its activities during the Special Revitalization Process (PER); c) Provides for the application of the Extrajudicial Business Recovery Scheme (RERE), approved by Law no. 8/2018 of March 2, to companies that are currently insolvent as a result of the COVID-19 disease pandemic; d) Creates an extraordinary process of viability for companies affected by the economic crisis resulting from the COVID-19 pandemic; e) Establishes the obligation to carry out partial assessments in all pending insolvency proceedings where liquidation proceeds are deposited in excess of EUR(€) 10 000; f) Provides for priority to be given to the processing of applications for the release of securities or guarantees provided under insolvency proceedings, special revitalisation proceedings or special arrangements for payment.
Regional Regulatory Decree no. 26/2020/A, of November 27: Second amendment to Regional Regulatory Decree no. 24/2020/A, of November 19, as amended by Regional Regulatory Decree no. 25/2020/A, of November 24.
Regional Regulatory Decree no. 26-A/2020/A: Regulates the implementation of Article 6(1), paragraph e), of Decree no. 9/2020, of November 21, for trips by air and sea to the territory of the Autonomous Region of the Azores.
Decree-Law no. 101/2020, of November 27: Alters the extraordinary support for the gradual resumption of activity in companies in a business crisis situation and clarifies the exceptional and temporary regime of justified absences motivated by family assistance.
Declaration of Rectification no. 48/2020, of November 30: Rectifies Law no. 63/2020, of October 29, “Fifth amendment to Law 43/90 of 10 August (Exercise of the right of petition)”.
Judgement of the Justice Court of November 12, Case C‑42/19: Reference for a preliminary ruling. Value added tax (VAT). Sixth Directive 77/388/EEC. Article 4. Concept of ‘taxable person’. Mixed holding company. Article 17. Right to deduct input VAT. Input VAT paid by a mixed holding company in respect of consultancy services relating to a market study with a view to the possible acquisition of shareholdings in other companies. Abandonment of proposed acquisition. Input VAT paid on a bank commission for organising and putting together a bond loan, intended to provide subsidiaries with the necessary means to make investments. Investments not made.
“Article 4(1) and (2) and Article 17(1), (2) and (5) of 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 must be interpreted as meaning that a mixed holding company whose involvement in the management of its subsidiaries is recurrent is entitled to deduct the input value added tax paid on the purchase of consultancy services relating to a market study carried out with a view to acquiring shares in another company, including where that acquisition did not ultimately take place.
Article 4(1) and (2) and Article 17(1),(2) and (5) of Sixth Directive 77/388 must be interpreted as meaning that a mixed holding company whose involvement in the management of its subsidiaries is recurrent is not entitled to deduct input value added tax paid on the commission paid to a credit institution for organising and putting together a bond loan, which was intended for making investments in a given sector, where those investments did not ultimately take place and the capital obtained by means of that loan was paid in full to the parent company of the group in the form of a loan.”.
Judgement of the Justice Court of November 26, Case C-787/18: Reference for a preliminary ruling. National legislation providing for the regularization of deductions from value added tax (VAT) by a taxable person other than the one who initially made the deduction. Sale by a company to individuals of a building leased by said company as well than by the previous owner company. End of the VAT liability when the property is sold to individuals.
“Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax is to be interpreted as precluding national legislation which, while providing, on the basis of Article 188(2) of that directive that the transferor of a real estate property is not obliged to regularise an input value added tax deduction when the transferee will only use the property for transactions giving rise to a right of deduction, also requires the transferee to regularise this deduction for the remaining period of the regularisation period, when he in turn transfers the real estate property in question to a third party who will not use it for such transactions.”.
III.2 Constitutional Court
Judgement of the Constitutional Court no. 641/2020, Case no. 1106/18:
The Constitutional Court decided to find unconstitutional the rule contained in the second part of paragraph 2 of Article 637 of the Code of Civil Procedure, when it establishes, in appeals alleging a jurisprudential conflict which is intended to be resolved, that the appellant must attach, under penalty of immediate rejection, a copy, even if not certified, of the ground ruling, without first being invited to remedy that omission, for infringement of Article 20, paragraphs 1 and 4 of the Constitution.
Judgement of the Constitutional Court no. 644/2020, Case no. 30/19:
It was declared the unconstitutionality of the rule of Article 248(4) of the Insolvency and Business Recovery Code (“CIRE”), insofar of preventing obtention of legal aid, in the form of exemption from payment of the justice fee and other charges with the process to the debtors who have obtained the exemption of the remaining liabilities and whose insolvent estate and disposable income were insufficient for the full payment of the costs and charges of the dismissal procedure, regardless of its specific economic situation, for violation of Articles 20(1) and 13(2) of the Constitution.
III.3. Courts of Justice
Judgement of the Lisbon Court of Appeal of November 5, Case no. 325/17.6T8AMD.L1-2: Sale of faulty item. Irresponsibility clause. Atypical nullity.
Judgement of the Lisbon Court of Appeal of November 10, Case no. 1525/11.8TYLSB-K.L1-1: Extraordinary review appeal. Revision. Rejection. Document. Insolvency. Subsequent verification of credits.
Judgement of the Lisbon Court of Appeal of November 12, Case no. 12475/18.7T8SNT-A.L1-8: Attachment of family home address. Tax execution. Double attachment. Suspension of execution. Sale of the attached property.
III.4. Administrative and Tax Court
Judgement of the Supreme Administrative Court of November 4, Case no. 0365/20.8BEBRG: Period of limitation. Interruption. Notification. Nullity.
Judgement of the Supreme Administrative Court of November 4, Case no. 038/19.4BALSB: Default interest. Revise.
IV.1.1. Monographs and Periodic Publications
Higina Orvalho Castelo, Regime Jurídico da Atividade de Mediação Imobiliária Anotado, 2.ª Edição, Almedina, novembro 2020
António Santos Justo, Direitos Reais, 7.ª Edição, Quid Juris, novembro 2020
João Ricardo Catarino, Finanças Públicas e Direito Financeiro, 6.ª Edição, Almedina, novembro 2020
Alberto de Sá e Mello, Direito de Autor e Direitos Conexos, 4º Edição, Almedina, novembro 2020
António Monteiro Fernandes, Direito do Trabalho, 20.ª Edição, Almedina, novembro 2020
José Alberto Vieira, Direito de Autor – Dogmática Básica, Almedina, novembro 2020
Diogo Leite de Campos, Mónica Martinez de Campos, Lições de Direito da Família, 5.ª Edição, Almedina, novembro 2020
Paula Quintas, Legislação Turística Anotada, 9.ª Edição, Almedina, novembro 2020
Luís Menezes Leitão, Arrendamento Urbano, 10.ª Edição, Almedina, novembro 2020
José Carlos Vieira de Andrade, A Justiça Administrativa – Lições, 18.ª Edição, Almedina, novembro 2020
Paulo Pimenta, Processo Civil Declarativo, 3.ª Edição, Almedina, novembro 2020
Rosa Cândido Martins, A Família entre o Público e o Privado, Almedina, novembro 2020
Paulo de Sousa Mendes, Rui Soares Pereira (Coord.), Novos Desafios da Prova Penal, Almedina, novembro 2020
IV.1.2. Generic Guidelines & Cia
Order no. 437/2020, of 09.11.2020, of Assistant Secretary of State Tax Affairs
Circulate letter no. 30227, of 10.11.2020, of Deputy General Director of VAT Services
Subject: VAT – deadline of the periodic statement and the payment of the respective duty.
Order no. 444/2020, of 19.11.2020, of Assistant Secretary of State Tax Affairs
Doctrinal letter no. 18369, of 25.11.2020, Deputy General Director of Income Tax
Subject: Tax regime of investment support (“RFAI”) – Non-eligibility of replacement/ repair in the industrial building.
Order no. 450/2020, of 27.11.2020, of Assistant Secretary of State Tax Affairs
IV.2.1. Economy, Finance and Taxation
The Council of Ministers approved, on November 27, the Decree-Law amending the incentive system for adapting business activity to the context of COVID-19.
Given the development of the epidemiological situation and the adoption of new measures and restrictions of prevention and response to the pandemic, the Government approved the extension of the maximum execution duration of the projects supported under the “ADAPTAR” Programme, from 6 to 9 months from the date of favourable decision notification, considering the deadline of 31 March 2021.
The “ADAPTAR” Programme aims to support the companies in the effort of adaptation and of the investment in their establishments, adjusting the methods of the work organization and the customer and suppliers’ relationships to the new conditions of the Covid-19 pandemic context, ensuring the compliance with the established standards and recommendations of the competent authorities, and safeguarding the safety of workers and customers confidence.
V. INDUSTRIAL PROPERTY
The Common Practice 8 (CP8) has been published on the website of the European Union Intellectual Property Office (EUIPO), which aims to identify the general principles for assessing situations where the use of a trademark in a format other than that registered alters its distinctive character and to provide guidance in this respect.
The Portuguese João Negrão was appointed on 11 November to the position of President of the Boards of Appeal of the European Union Intellectual Property Office (EUIPO). The selection process, in which 17 candidates applied, took place since 2019 and deserved the strong support and commitment of the Portuguese Government in a diplomatic campaign coordinated by the Ministry of Foreign Affairs, also involving the Ministry of Justice and the National Institute of Industrial Property (INPI).
The INPI has made available the Biannual Statistical Report 2020, which reflects the biannual evolution of Industrial Property Rights in the 1st Half of 2020, allowing for its comparison with the previous corresponding period. Trademarks and Other Distinctive Trade Signs, which have always been the most used and sought after modalities at the INPI, registered a decrease of 11.3% in applications for registration (11,330) and 4.3% in the number of concessions (8,075) in the 1st semester. As regards the European Office, there was a 5.7% decrease in the number of applications for EU Trademarks of Portuguese origin at the European Intellectual Property Office (EUIPO), from 975 applications to 919. There was also a 22.4% decrease in the international trade mark protection route (Madrid System), with a total of 59 applications filed in the 1st half of 2020.
The European Commission has carried out an evaluation of EU legislation on design protection, providing an in-depth analysis of the overall functioning of the design protection system, both at EU and national level. The evaluation revealed a number of shortcomings, such as unclear definitions of protection, an outdated procedural regime for product representation and differences between Member States’ procedural rules and the Regulation.
WIPO launched this month the WIPO Sequence, a new computer tool of worldwide reach that allows patent applicants to create their sequence listings – including DNA, RNA, and amino acids – compatible with the WIPO Standard ST.26 standard adopted by Member States. As of January 1, 2022, all sequence listings in patent applications filed at the national and international level must comply with WIPO Standard ST.26.
The Commission published a new Intellectual Property Action Plan to help businesses, especially small and medium-sized enterprises (SMEs), to make the most of their inventions and creations. The Action Plan aims to improve IP protection, promote the use of IP by SMEs, facilitate IP sharing in order to disseminate technology to industry, combat counterfeiting and improve enforcement of IP rights and promote a global level playing field.
Germany voted and approved, on November 26, the legislation concerning the Agreement on the Unified Patent Court and its Interim Application Protocol. The conclusion of the procedure in Germany and the ratification of the Provisional Application Protocol by two other signatory states will also be necessary for the project to progress to its final stage. The UPC Agreement was signed on 19 February 2013 by 25 Member States and Portugal deposited its instrument of ratification on 28 August 2015. The Unified Patent Court will be a court common to the Contracting States and therefore part of their judicial system. The Court will have exclusive jurisdiction over European patents and European patents with unitary effect.
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS
- V. INDUSTRIAL PROPERTY