I. EDITORIAL – EDITORIAL – POSSIBILITY OF FIXING MAXIMUM MARKETING MARGINS FOR SIMPLE FUELS; AMENDMENT OF THE PERIODIC VAT DECLARATION, ANNEX R AND RESPECTIVE FILLING INSTRUCTIONS
In terms of legislation, October was characterised by the approval and publication of Law no. 69-A/2021, of October 21, which created the possibility of establishing maximum commercialization margins for simple fuels, amending Decree Law no. 31/2006, of February 15.
Also noteworthy, on a legislative level, is the publication of:
I) Ordinance no. 206/2021, of October 14, which amended the periodic VAT return, annex R and respective instructions for completion, providing for intervention by an independent certified accountant in the certification provided for in article 78-D of the VAT Code;
II) Ordinance no. 208-A/2021, of October 15, which proceeded with the first amendment to Ordinance no. 301-A/2018, of 23 November, which sets the value of the unit rates of tax on petroleum and energy products (ISP) applicable on the continent to unleaded petrol and road diesel; and
III) Ordinance no. 209/2021, of October 18, which approved the model of the standard report of domestic violence (“Auto VD”), to be used by the National Republican Guard (GNR), Public Security Police (PSP), Judiciary Police (PJ) and Public Prosecution Services, in situations of domestic violence.
Within the scope of case-law, we highlight the Judgment of the Guimarães Court of Appeal of October 7, Case no. 753/20.0T8VNF-D.G1, which clarified that “The special immovable property privilege referred to in Article 333, no. 1, paragraph b) of the Labour Code, covers all of the employer’s real estate allocated to its business activity, to which the workers are functionally connected.
Also worth mentioning within the scope of case-law is the Judgement of the Coimbra Court of Appeal of October 12, Case No. 3682/20.3T9LRA.C1, which clarified that “Article 7(2) of the General Regime of Administrative Offences requires an extensive interpretation in order to include within its scope the workers, directors and managers and the agents or representatives of the legal person or equivalent, when acting in the exercise of their functions or because of them“.
Finally, within the scope of Miscellaneous, we highlight the delivery, by the Minister of State and Finance to the President of the Assembly of the Republic, of the Draft-Law no. 116/XIV/3 for the approval of the State Budget for 2022, and the subsequent rejection of the referred Draft-Law, on 27 October 2021.
Notice no. 18589/2021, of October 1: Approves the Code of Conduct and Ethics of the Food and Economic Safety Authority.
Resolution of the Assembly of the Republic no. 253/2021, of October 6: Approves the report and management account of the Assembly of the Republic for the year 2020.
Decree-Law no. 80/2021, of October 6: Approves the organizational structure of the Ombudsman’s Office.
Ordinance no. 205/2021, of October 12: Regulates the creation and operation of the Social Employment Incubators.
Rectification Statement no. 33/2021, of October 13: Rectifies Decree-Law no. 78-A/2021, of September 29, which alters the exceptional and temporary measures related to the pandemic disease COVID-19.
Ordinance no. 206/2021, of October 14: Amends the periodic VAT return, annex R and respective instructions for completion, providing for the intervention, by an independent certified accountant, in the certification provided for in article 78-D of CIVA.
Ordinance no. 207/2021, of October 15: Amends the “Totoloto” Regulations, approved by Ordinance no. 102/2011, of March 11.
Ordinance no. 208-A/2021, of October 15: Makes the first amendment to Ordinance no. 301-A/2018, of November 23, which sets the value of the unit tax rates on petroleum and energy products (ISP), applicable on the continent to unleaded gasoline and diesel for road use.
Ordinance No. 209/2021, of October 18: Approves the model of standard notice/complaint of domestic violence, hereinafter referred to as “Auto VD”, to be used by the National Republican Guard, Public Security Police, Judicial Police and Public Prosecution Services in situations of domestic violence.
Decree-Law no. 84/2021, of October 18: Regulates consumer rights in the purchase and sale of digital goods, content and services, transposing Directives (EU) 2019/771 and (EU) 2019/770.
Decree Law no. 86/2021, of October 19: Transposes Directive (EU) 2019/1161, establishing the legal regime concerning the promotion of clean road transport vehicles in favour of low-emission mobility.
Declaration no. 16/2021, of October 21: Management account of the Assembly of the Republic for the year 2020.
Law no. 69-A/2021, of October 21: Creates the possibility of fixing maximum marketing margins for simple fuels, amending Decree Law no. 31/2006, of 15 February.
Resolution of the Assembly of the Republic no. 269/2021, of October 29: Recommends that the Government establish the National Anemia Day and create a national strategy for the prevention and treatment of anemia.
Resolution of the Assembly of the Republic no. 270/2021, of October 29: Recommends that the Government develop and implement an integrated national strategy to combat loneliness as a strategic axis of public health.
III.1. Court of Justice of the European Union
Judgment of the General Court of 6 October, Case No. T-32/21: European Union trade mark. European Union word mark Muresko. Earlier national word marks Muresko. Claiming seniority of earlier national marks after registration of the European Union trade mark. Articles 39 and 40 of Regulation (EU) 2017/1001. Registration of earlier national marks which have expired on the day of the claim.
“In the light of the foregoing assessments, the Board of Appeal did not err in law by interpreting, in paragraph 12 of the contested decision, Article 40 of Regulation 2017/1001, in conjunction with Article 39 of that regulation, to the effect that the identical earlier national trade mark whose seniority is claimed for the benefit of a subsequently registered European Union trade mark must be registered and in force on the date on which the seniority claim is filed.”
III.2 Constitutional Court
III.3. Courts of Justice
Judgment of the Supreme Court of Justice, of October 7, Case No. 161/16.7T9AND.P1.S
“I- The judgment of the Court of Appeal which, on appeal, terminates the procedural relationship by declaration of prescriptive termination of the criminal proceedings, is not a decision of merit, since it does not know or decide on the subject matter of the proceedings defined in the indictment or indictment.
II- Accordingly, it is not appealable to the Supreme Court of Justice, due to the prohibition of article 432 no. 1 alias b) and 400 no. 1 alias c) of the CPP“.
Judgment of the Appeal Court of Porto, of October 4, Case No. 2079/20.0T8STS.P1: Special Revitalisation Process. Change of circumstances. Second petition. Homologation. Opposition. Creditor. Burden of allegation and proof.
“I – Submission to a new PER when a previous agreement ratified in a PER is in the enforcement phase does not in itself show a situation of insolvency of the debtor, given the alteration of the circumstances that were present in the previous PER.
II – Adopting the same criterion of payment in relation to all common claims, without any opposition from these, the principle of equality appears to be guaranteed.
III – It was an onus of the creditor that came to oppose the ratification of the revitalisation plan to allege the extinctive or impeding facts of the debtor’s right by demonstrating that the debtor’s assets were sufficient to guarantee the payment of the credits of the employees in insolvency proceedings“.
Judgment of the Appeal Court of Coimbra, of October 6, Case no. 251/19.4BCLD.C1: Change of the legal qualification of the facts included in the indictment. Timeliness.
“I- The change provided for by article 358 of the Code of Criminal Procedure, has to occur in trial, and already in the collation of the evidence made available and produced therein.
II- At the time of the order referred to in article 311 of the Code of Criminal Procedure, if a clear error of subsumption of the facts in the indictment is not evident, the judge may not convert the facts into another legal type of crime, out of respect for the principle of accusation.”.
Judgment of the Court of Appeal of Coimbra, of October 12, Case No. 3682/20.3T9LRA.C1: Liability of legal person or equivalent.
“I – Article 7(2) of the General Regime of Administrative Offences requires an extensive interpretation in order to include within its scope the employees, the directors and managers and the agents or representatives of the legal person or equivalent, of this acting in the exercise of their functions or because of them.
II – The administrative offence liability of legal persons, being based on a direct and autonomous imputation, does not require the identification or individualisation of the natural person carrying out the typical and unlawful action“.
Judgment of the Court of Appeal of Lisbon, of October 12, Case No. 24272/17.2T8LSB-F.L1-1: Proposal. Advantage for the insolvent estate. Guarantee of compliance.
“1 – No. 5 of Article 161 of CIRE, unlike no. 3 of Article 164 of the same law, does not provide any time limit for the exercise of the right to request that the sale be suspended and a meeting of creditors be convened. Naturally, it will have to be exercised until the projected sale takes place, which is why the law requires at least 15 days prior notice in the communication in no. 4.
2 – When considering the plausibility of the advantage for the insolvent estate in the sale to another interested party, in the terms and for the purposes of no. 5 of article 161 of CIRE, the presentation of a proposal for acquisition at a higher price is not sufficient, it is necessary to have some guarantee that a firm proposal, accepted and guaranteed, will not be substituted by a proposal without any guarantee of fulfilment which, in the event of non-compliance, would leave the estate in a situation of having to return the deposit, compensate the losses of the proposed purchaser and restart the sale process“.
Judgment of the Court of Appeal of Lisbon, of October 12, Case No. 4270/21.2T8SNT-B.L1-1: Bank credits. PERSI (Extrajudicial procedure for settlement of default situations). Insolvency. Innominate dilatory objection.
“I – The out-of-court procedure for the regularisation of situations of non-compliance (PERSI), established by Decree-Law 227/2012, of 25 October, has mandatory application when the bank customer (consumer) incurs a situation of default or non-compliance with obligations arising from credit agreements, in the manner consigned by its articles 2, no. 1, and 14, no. 1.
II – The recourse to such procedure constitutes a previous condition of admissibility and procedurality for the filing of an action by which the banking institution petitions for the declaration of insolvency of bank customers who are in breach of the loan agreement with mortgage for the acquisition of property that corresponds to the family home and constitutes the family’s own permanent residence.
III – If such an action is brought in violation of that obligation, it will be a dilatory innominate objection, which cannot be raised and is known of its own motion, resulting in the acquittal of the defendants.
IV – The pendency of tax executions with a record of seizure in favour of the National Treasury on a date prior to that on which the obligations arising from the credit contract ceased to be fulfilled does not dispense with including the debtors in the PERSI, when the seizures relate to property that is the bank customers family home (their own permanent residence)“.
Judgment of the Appeal Court of Guimarães, of 7 October, Case No. 753/20.0T8VNF-D.G1: Insolvency proceedings. Special Real Estate Privilege. Labour claims.
“I – The special real estate privilege referred to in Article 333, no. 1, paragraph b) of the Labour Code, covers all the employer’s real estate affected to its business activity, to which the employees are functionally linked.
II – This connection does not have to be naturalistic, i.e. does not necessarily have to do with the physical location of each worker’s workstation, but merely functional, for this purpose it is sufficient that the real estate is part of the productive organisation of the company to which the workers belong.
III – A restrictive interpretation, merely naturalistic, would introduce unjustified differentiated treatment of workers of the same company, according to the professional activity of each one and the place where they carry out that activity.
IV – Given the special nature and purpose of insolvency proceedings and the extended participation of various intervening parties, the court may rely on elements in the proceedings to assess the connection between the property seized and the insolvent’s work activity, based on the principle of procedural acquisition“.
III.4. Administrative and Tax Court
Judgment of the Supreme Administrative Court, of October 6, Case No. 0351/14.7BECBR: Opposition to tax execution. Lack of essential requirements of the enforcement order. Concrete illegality. Supplementary social security benefits. Reposition of amounts. Limitation period.
“I – The lack of essential requirements of the enforcement order, which, when it cannot be remedied by documentary evidence, constitutes an irreparable nullity of the tax enforcement procedure – article 165, no. 1, paragraph b), of the CPPT -, does not constitute grounds for opposition, and is not framed within paragraph i) of no. 1 of article 204 of the same Code.
II – The actual illegality of the act giving rise to the enforceable debt is only permitted as grounds for opposing a tax enforcement action in the rare situations in which “the law does not ensure a judicial means of challenging or appealing against the assessment act” [cf. article 204(1)(h) of the CPPT], i.e. when the enforceable debt does not originate from a previous tax or administrative act.
III – The limitation period for the obligation to restitute sums unduly received as social security benefits is provided for in Article 13 of Decree-Law no. 133/88, of 20 April, and was 10 years until 16 May 2018.
IV – The counting of that time limit begins from the entry into force of that diploma, but taking into account the time which had elapsed until then of the previous time limit, in terms of no. 2 of the aforementioned art. 149 of the same diploma.
IV – Counting of that period begins with the notification to restitute (Cf. art. 13 of Decree-Law no. 133/88, of 20 April) and is interrupted, with lasting effects, with the citation of the debtor (Cf. art. 327, no. 1, of CC).”.
Judgment of the Supreme Administrative Court of 6 October, Case No. 02237/20.7BEBRG: Complaint. CPPT. Request. Waiver of guarantee. Time limit. Complaint to conference.
“I – The taxpayer may at any time request the waiver of the provision of a guarantee but in order to obtain the useful effect sought by him of the suspension of the enforcement it is that he needs to submit it within a certain time limit.
II – The expiry of any of the time limits provided for in Article 170 of the CPPT does not release the Tax Administration from considering the request to provide a guarantee or to waive the guarantee on the grounds that the request is untimely. While the execution is pending, such requests may always be formulated and must be examined.
III – The time limits in Articles 169 and 170 are time limits during which the Tax Administration may not proceed with the enforcement. Once these periods have elapsed, the enforcement action can and must continue even if an application for a guarantee waiver submitted in the meantime is pending.
In other words, if an opposition has been filed, the tax debtor has a period of 15 days to request the provision of a guarantee or its waiver and the enforcement cannot proceed until the request has been examined“.
Judgment of the Supreme Administrative Court, of October 6, Case No. 0185/18.0BELRA: Opposition to tax execution. Inexigibility. Suspension of tax execution.
“I – The opposition to the tax execution may aim at the suspension of the tax execution (and not, as a rule, its extinction, partial or total), in cases where the enforceability of the debt is affected for a non-definitive reason, such as, v.g., when the tax execution was initiated when an administrative claim or a judicial challenge was already pending with a guarantee already provided or its provision requested and not yet decided.
II – The filing of a Graciosa Complaint and consequent Judicial Disputes, with provision of guarantee, before the expiration of the term for the voluntary payment of the tax, does not prevent the commencement of the tax execution, but nothing more can be done and, if the execution is commenced, the interested party may file a judicial opposition on the basis of the unenforceability of the debt, under the terms of article 204/1/ i) of the CPPT, with a view to the suspension of the execution, with the annulment of all the steps and procedural acts that were unduly carried out“.
Judgment of the Supreme Administrative Court, of October 6, Case No. 1545/06.4BCLSB: Corporate Income Tax. Company merger. Transferability of tax losses.
“I – There is no nullity for excessive pronouncement of the appealed decision that does not limit itself to annul the express act of rejection of the request of deduction, by the company resulting from a merger operation, of the tax losses of the merged companies, if in the initial petition it was requested that the court pronounce itself on the due act and that it do so in the sense in conformity with an invoked tacit act of approval.
II – The concept of “valid economic reasons” which Article 69(2) of the CIRC, in the wording in force in 2005, makes dependent on the authorisation of the transfer of tax losses of companies merged within a merger operation is not a “discretionary concept” and the administrative judgment and evaluation parameters used by the Tax Administration in the densification of this concept and its application to the case may be questioned by the courts;
III – The administrative decision which rejects the request for authorisation formulated under the terms of the preceding paragraph on the grounds that there is no demonstration of the economic validity of the operation based solely on the parameters which the administration itself sets out, without formulating any judgement on the existence or predominance of tax interests in the decision to carry out the operation and even disregarding the fact that it is not foreseeable that there will be any tax consideration, considering the expected tax results in the short term, is illegal and should be revoked“.
IV.1.1. Monographs and Periodic Publications
Adelaide Menezes Leitão, Insolvência Bancária e Responsabilidade Civil, Almedina, outubro de 2021.
APDIR, A Diretiva sobre Reestruturação e Insolvência, Almedina, outubro de 2021.
Carlos Cunha Gonçalves, As Notificações em Procedimento Tributário – Análise aos Conceitos Essenciais à sua Compreensão, Almedina, outubro de 2021.
Direito das Sociedades em Revista, Ano XIII, Vol. 26, Almedina, outubro de 2021.
Dulce Lopes, Afonso Patrão, Lei da Mediação Comentada, 2.ª Edição, Almedina, outubro de 2021.
Edgar Valles, Atos Notariais do Advogado e do Solicitador, 8. ª Edição, Almedina, outubro de 2021.
Francisco Pereira Coutinho, Independência na União Europeia, Almedina, outubro de 2021.
João de Travassos, O Presidente (da Mesa) da Assembleia Geral – A Problemática da Cessação das Funções do Presidente Permanente, Almedina, outubro de 2021.
Joaquim de Sousa Ribeiro, Direitos Sociais e Vinculação do Legislador, Almedina, outubro de 2021.
José Carlos Vieira de Andrade, A Justiça Administrativa – Lições, 19.ª Edição, Almedina, outubro de 2021.
Jorge Bacelar Gouveia, Manual de Direito Constitucional- Volume I, 7.ª Edição, Almedina, outubro de 2021.
Jorge Bacelar Gouveia, Manual de Direito Constitucional- Volume II, 7.ª Edição, Almedina, outubro de 2021.
Jorge Reis Novais, Semipresidencialismo – Teoria Geral e Sistema Português, 3.ª Edição, Almedina, outubro de 2021.
Maria do Rosário Palma Ramalho, Tratado de Direito do Trabalho Parte II -Situações Laborais Individuais, 8.ª Edição, Almedina, outubro de 2021.
Miguel Pestana de Vasconcelos, Direito Bancário, 3.ª Edição, Almedina, outubro de 2021.
O Direito, Ano 153.º, Número III, Almedina, outubro de 2021.
Paula Quintas, Manual Prático de Direito das Obrigações, 4.ª Edição, Almedina, outubro de 2021.
Paulo Ramirez, Direito Comercial, 3.ª Edição, Almedina, outubro de 2021.
Pedro Costa Gonçalves, Licínio Lopes Martins, Pedro Santos Azevedo, As Medidas Especiais de Contratação Pública – Anotadas, 2.ª Edição, Almedina, outubro de 2021.
Revista de Direito das Sociedades, Ano XIII (2021) – Número 1, Reimpressão 2021, Almedina, outubro de 2021.
Teresa Coelho Moreira, Direito do Trabalho na Era Digital, Almedina, outubro de 2021.
Tobias Hamann, O New Deal da Sociedade em Comandita em Portugal- Um Mecanismo para a Perpetuação do Poder Societário, Almedina, outubro de 2021.
IV.1.2. Generic Guidelines & Cia
IV.2.1. Economy, Finance and Taxation
On 11 of October 2021, the Draft-Law no. 116/XIV/3, for the approval of the State Budget for 2022, was delivered by the Minister of State and Finance to the President of the Assembly of the Republic, an act that marked the beginning of the budget processing process.
The outcome of the vote on the State Budget, in the Assembly of the Republic, culminated with the rejection of the Draft-Law prepared by the Government, on 27 October 2021.
The documentation and all the procedures of the budget process may be consulted on the page created for this purpose, available on the website of the Assembly of the Republic.
The Council of Ministers approved, on October 28, the Decree-Law establishing a financial subsidy, of transitional and exceptional nature, to be granted to citizens, in the fuel sector.
The respective financial subsidy will be attributed between November of 2021 and March of 2022, using the IVAucher Program support platform. The benefit corresponds to a reimbursement of 10 cents per litre of fuel (in a total of 50 litres/month), being transferred directly to each consumer’s bank account.
V. INDUSTRIAL PROPERTY
The National Institute for Industrial Property (INPI) attended the 62nd series of meetings of the Assemblies of the Member States of the World Intellectual Property Organization (WIPO), which ran until 8th of October, in Geneva.
The agenda of the Assemblies focused on various themes, highlighting matters relating to Institutional Matters, the Budget and its Supervision, WIPO Committees, the International Regulatory Structure, and Global Intellectual Property Services.
The President of INPI of Portugal, highlighted that “despite the adversities resulting from the COVID-19 crisis, the systems administered by WIPO continued to show all their vitality, and the organization was able to adjust effectively to the new challenges and opportunities“.
The ECP7 project (European Cooperation Projects), of the European Union Intellectual Property Office (EUIPO), will organize until the end of this year, in collaboration with the national Intellectual Property Offices and users associations, a set of webinars, aiming to address the changes introduced in the transposition of the Trademark Harmonization Directive, in each Member State.
In Portugal, the webinar presented by INPI’s staff took place on 14 of October.
The provisional statistical data, from January to September of 2021, regarding Industrial Property Rights applications and concessions was published on 20 of October. In particular, the concessions of inventions registered an increase of 46.3%, compared to the corresponding period in 2020.
Statistical, annual, half-yearly and monthly data on Industrial Property Rights are available at the IP Observatory.
In order to fulfil INPI’s Strategic Plan 2020-2023, the National Institute of Industrial Property launched, in Video format, on 28 of October, the balance of the first year of execution of the Strategic Plan.
It highlights, in terms of strategic guidelines to be developed by INPI, are the guarantee of quality in the attribution and protection of Industrial Property Rights, the incentive and support in innovation in Portugal, with the consequent supply of better services to users.
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS
- V. INDUSTRIAL PROPERTY