I. EDITORIAL – APPROVAL OF THE UPDATE OF THE MINIMUM MONTHLY SALARY GUARANTEED; CREATION OF AN EXCEPTIONAL COMPENSATION MEASURE
The month of December was characterised, on a legislative level, by the approval and publication of Decree-Law no. 109-B/2021, of 7 December, which approved the updating of the minimum monthly salary guaranteed and created an exceptional compensation measure.
Also of note, on the legislative front, are:
I) Ordinance no. 310/2021, of December 20, which set the average value of construction per square metre, for the purposes of article 39 of the Municipal Property Tax Code, in force in 2022.
II) Resolution of the Council of Ministers no. 181-A/2021, of December 23, which changes the measures applicable within the scope of the COVID-19 disease pandemic.
III) Decree-Law no. 119-B/2021, of December 23, which altered the measures applicable within the scope of the COVID-19 disease pandemic.
In the scope of case law, it is worth mentioning the Judgement of the Lisbon Court of Appeal of December 2, Case No. 1642/16.8T8OER-D. L1-6, which clarified that “Article 824 (2) of the CPC does not establish a deadline within which the enforcement agent must comply with the notification to the bidder provided for therein, whereby the fact that the notification to the bidder is made a few days after that made to the distrainor and the defendant on the result of the auction, does not constitute any irregularity or nullity that should lead to the annulment of the auction, nor does it determine, in itself, any violation of the right of access to justice and to a fair trial, or violation of the principle of equality in relation to other potential bidders“.
In the same context, we would also highlight the Judgement of the Constitutional Court no. 896/2021, of December 7, Case No. 436/2021, which decided “Not to rule unconstitutional the rule set out in Article 10(12) of the Personal Income Tax Code, approved by Decree-Law No. 442-A/88, of 30 November 1988, as amended by Law No. 39-A/2005, of 29 November 2005, which does not violate the right of access to justice or the right to a fair trial, nor does it violate the principle of equality vis-à-vis other possible bidders”. No. 39-A/2005, of July 29, according to which the exclusion provided for in no. 2 of the same article does not cover capital gains arising from shares in companies whose assets comprise, from the time of the acquisition of the shares until the time of their disposal, directly or indirectly, more than 50% of immovable property or rights in rem on immovable property situated in Portuguese territory“.
Finally, regarding Miscellaneous, we highlight the approval by the Council of Ministers of drafts relating to 26 tax investment contracts, to be signed between the Portuguese State and various commercial companies, for the development of projects of particular interest to the national economy.
Ordinance no. 278/2021, of December 2: Approves Declaration Model 10, Income and Withholdings – Residents, and respective instructions for filling in.
Ordinance no. 281-A/2021, of December 2: Makes the first amendment to Ordinance no. 255-A/2021, of November 18, which establishes an exceptional and temporary co-payment scheme for rapid antigen tests (TRAg) for professional use.
Law no. 83/2021, of December 6: Modifies the telework regime, amending the Labour Code and Law no. 98/2009, of 4 September, which regulates the compensation regime for accidents at work and occupational diseases.
Law no. 84/2021, of December 6: Amends the rates provided for in the Single Road Tax Code and extends the support measures for road transport provided for in the Statute of Tax Benefits.
Decree-Law no. 108/2021, of December 7: Amends the competition regime, the regime of individual practices that restrict trade and the regime of general contractual clauses.
Ordinance no. 284/2021, of December 7: Imprensa Nacional-Casa da Moeda, S. A. (INCM) is authorised, within the volume of coin issuance approved by the European Central Bank, to mint, in 2022, two commemorative issues of the EUR 2 coin.
Ordinance no. 285/2021 of December 7: Imprensa Nacional-Casa da Moeda, S. A. (INCM) is authorised, under the Commemorative Coins Issuance Plan for 2022, to mint and sell seven collector coins.
Decree-Law no. 109-A/2021, of December 7: Updates the remuneration of the Public Administration and increases the respective remuneration base.
Decree-Law no. 109-B/2021, of December 7: Approves the update of the value of the minimum monthly salary guaranteed and creates an exceptional compensation measure.
Decree-Law no. 109-E/2021, of December 9: Creates the National Anti-Corruption Mechanism and establishes the general regime for the prevention of corruption.
Ordinance no. 294/2021, of December 13: Undertakes the annual update of the value of the Social Support Index (IAS).
Law no. 85/2021, of December 15: Prohibits discrimination on the basis of gender identity or sexual orientation in eligibility to give blood, amending Law No. 37/2012, of August 27, which approves the Blood Donor Statute.
Law no. 86/2021, of December 15: Termination of the exceptional regime of flexibilization of the execution of sentences and grace measures, in the scope of the COVID-19 pandemic, approved by Law 9/2020, of April 10.
Law no. 88/2021, of December 15: Transitional regime of mandatory use of mask in public spaces.
Ordinance no. 301/2021, of December 15: Updates pensions for the year 2022.
Decree-Law no. 119/2021, of December 16: Strengthens social protection in the event of unemployment.
Law no. 92/2021, of December 17: Revokes the “fan card”, eliminating discrimination and stigmatization in sports venues, amending Law no. 39/2009, of 30 July, which establishes the legal framework for security and combating racism, xenophobia and intolerance in sporting events.
Ordinance no. 307/2021, of December 17: Determines the normal age of access to the old age pension in 2023.
Law no. 93/2021, of December 20: Establishes the general regime for the protection of whistle-blowers, transposing Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law.
Ordinance no. 310/2021, of December 20: Establishes the average value of construction per square metre, for the purposes of Article 39 of the Municipal Property Tax Code, to be in force in the year 2022.
Ordinance no. 311-A/2021, of December 20: Establishes the specific financing conditions for loans to the State under the Recovery and Resilience Plan for investments related to the accommodation of higher education students.
Law no. 94/2021, of December 21: Approves measures provided for in the National Anti-Corruption Strategy, amending the Criminal Code, the Code of Criminal Procedure and related laws.
Ordinance no. 312-A/2021 of December 21: Undertakes the second amendment to Ordinance no. 255-A/2021 of November 18, amended by Ordinance no. 281-A/2021 of December 3, establishing an exceptional and temporary co-payment scheme for rapid antigen tests (TRAg) for professional use.
Resolution of the Assembly of the Republic no. 346/2021 of December 22: Recommends that the Government strengthen the public health structure in Portugal.
Decree-Law no. 119-A/2021, of December 22: Amends the measures within the scope of the pandemic disease COVID-19.
Decree-Law no. 119-B/2021, of December 23: Amends measures in the context of the pandemic of the disease COVID-19.
Resolution of the Council of Ministers no. 181-A/2021, of December 23: Alters the measures applicable in the context of the pandemic of the disease COVID-19.
Ordinance no. 319-A/2021, of December 27: Provides the third amendment to Ordinance no. 255-A/2021, of 18 November, which establishes an exceptional and temporary co-payment scheme for rapid antigen tests (TRAg) for professional use.
Ordinance no. 325/2021, of December 29: Proceeds with the second amendment to Ordinance no. 91/2020, of April 14, which defines, in execution of the provisions of no. 2 of article 3 of Law no. 4-C/2020, of April 6, which establishes an exceptional regime for situations of delay in the payment of rents due to the epidemic situation caused by the SARS-CoV-2 coronavirus and COVID-19 disease, the terms in which the demonstration of the loss of income is made for the purpose of application of that exceptional regime to situations of inability to pay housing rents due as from April 1, 2020 and until the month following the end of the State of Emergency.
Resolution of the Council of Ministers no. 184/2021 of December 29: Approves the National Strategy to Combat Poverty 2021-2030.
Resolution of the Council of Ministers no. 186/2021, of December 29: Approves the public investment program in research and development for 2021-2030.
Law no. 99/2021, of December 31: Special contributions and value of procedural costs for 2022.
Law no. 99-A/2021, of December 31: Amendment to the Securities Code, to the General Regime of Collective Investment Organisms, to the Statute of the Order of Statutory Auditors, to the Legal Regime of Audit Supervision, to the statutes of the Securities Market Commission, to the Insolvency and Company Recovery Code and related legislation.
III.1. Court of Justice of the European Union
III.2. Constitutional Court
Judgment of the Constitutional Court no. 896/2021, of December 7, Case no. 436/2021:
“Therefore, it is decided: Not to deem unconstitutional the rule extracted from article 10(12) of the Personal Income Tax Code, approved by Decree-Law no. 442-A/88, of November 30, in the wording given by Law no. 39-A/2005, of July 29, according to which the exclusion established in no. 2 of the same article does not cover capital gains from companies whose assets comprise, from the time of the acquisition of the shares until the time of their direct or indirect disposal in more than 50% by assets. No. 2 of the same article does not cover capital gains arising from shares in companies whose assets comprise, from the time of the acquisition of the shares until the time of their disposal, directly or indirectly, more than 50% of immovable property or rights in rem in immovable property situated in Portuguese territory“.
III.3. Courts of Justice
Judgment of the Supreme Court of Justice, of December 2, Case no. 9/21.0YFLSB. Ruling of the Supreme Court of Justice. Reform of Judgment. Examination of the merits.
“I – It is a prerequisite for the reform of the sentence or judgment under the provisions of Article 616(2) of the CPC, in addition to the fact that the decision may not be appealed, the existence of a manifest error in the determination of the applicable rule, in the legal classification of the facts or in the disregard of documents with full evidentiary force or other means of evidence with similar effect, with direct and causal influence on the result, if attended to.
II – The manifest error must be evident and uncontroversial, revealed by elements external to the sentence or appellate decision being reformed, and not merely a disagreement with what has been decided.
III – The reform of the Judgement is not allowed when it is only based on manifestations of disagreement with the judgement and the intention is to alter what has been decided“.
Judgment of the Lisbon Court of Appeal, of December 2, Case no. 1642/16.8T8OER-D.L1-6. Execution. Sale by auction. Notification to the bidder. Deadline.
“Article 824(2) of the CPC does not lay down a time-limit within which the enforcement agent must comply with the notification provided for therein to the bidder, with the result that the fact that the notification to the bidder is subsequent, by days, to that given to the distrainor and the defendant on the result of the auction, does not constitute any irregularity or nullity which must lead to the annulment of the auction, nor does it determine, in itself, any infringement of the right of access to justice and to a fair trial, or infringement of the principle of equality in relation to other possible bidders.”
Judgment of the Lisbon Court of Appeal of December 3, Case no. 1020/18.4T9ALM.L1-9: Application signed by the assistant. Legal representation of the assistants. Need of intervention of lawyers.
“I- Since the assistant, by her own hand and having more than one lawyer present in the case-file, presented a request subscribed by her during her judicial holidays, arguing the nullity of a notification and of the subsequent acts as well as requesting the renewal of the notification in crisis, this “modus operandi” cannot be complied with, since the assistant cannot intervene in the case-file unaccompanied by her legal representative and also because the request is contradictory and devoid of legal basis, besides being largely unintelligible.
II- Unlike the defendant, the assistant cannot intervene personally in the proceedings as his intervention must always be done through a proxy, lawyer or trainee lawyer, since the necessary legal representation of the assistants prevents many of the acknowledged inconveniences of their intervention as procedural subjects, as well as ensuring a true technical collaboration of the proceedings, thus concluding that the assistants are always represented by a lawyer“.
Judgment of the Lisbon Court of Appeal of December 7, Case no. 134/10.3TBCTX-D.L1-7: Incident of habilitation. Acquirer or transferee. Assumptions. Validity of the transfer. Burden of proof.
1–The opposing party may challenge the validity of the act, on any ground of nullity or annulment of the substantive law, or allege that the transfer was made in order to render more difficult its position in the proceedings, the opposition will be limited to the facts relating to the formal or substantive validity of the act of assignment or transfer, or to the circumstance that the act of assignment or transfer aims only to hinder the position of the claimant in the main proceedings, pursuant to Article 356(1)(a) of the Portuguese Civil Procedure Code.
2–The admissibility of the empowerment of the purchaser shall depend on the verification of the following assumptions: the pendency of an action; the existence of a disputed thing or right; the transmission of the disputed thing or right while the action is pending, by an act between living persons; and knowledge of the transmission during the action.
3–Even if no objection is presented in the incident of empowerment of transferee, the judge will always have to assess whether the transfer is valid, both in relation to the object and in relation to the quality of the persons involved in it, analysing whether the legally required proof of the act that triggered the transfer was provided.
4–The burden of proof of the facts tending to demonstrate the existence of the assignment agreement and its relevant object lies with the applicant, and the proof of the assignment agreement is documentary, and does not, however, have to express the exact amount of the obligation at the time of the transfer, but must identify the credit in order to know the object of the assignment.
Judgment of the Coimbra Court of Appeal, of December 15, Case no. 930/20.3T8ACB-A.C1: Out-of-court procedure for the settlement of PERSI. Bank customer. Legal action.
“I – The lack of compulsory integration of the bank customer in the PERSI [approved by Decree-Law no. 227/2012, of 25/10], when the prerequisites for this are met, constitutes a legal impediment for the credit institution, the lending creditor, to take legal action with a view to the satisfaction of its credit.
II – Just as it is a legal impediment for the credit institution, the lending creditor, to assign its credit to a non-credit institution.
III – Otherwise, the assignment or transfer could imply a distortion of the regime laid down in Decree-Law 227/2012 of 25 October, insofar as, if the transferee is not a credit institution covered by the scope of application of that law, it would not be obliged to comply with the PERSI.
IV – Failure to comply with the legal regime of compulsory integration of bank customers into the PERSI translates into a lack of an objective procedural condition which is framed, with the necessary adaptations, in the legal regime of dilatory objections (atypical or innominate).
V – Communications regarding the integration of executees into PERSI and the termination of PERSI must be made in a durable medium (which includes a letter or an e-mail) – articles 14, no. 4 and 17, no. 3 of said DL 227/2012, of 25/10 – and cannot be proved by testimonial evidence (articles 364, no. 2 and 393, no. 1, both of the Civil Code) except if there is written evidence (other than the alleged communication itself.
VI – It should be added that it is a legal criterion, provided for in article 607º, n.º 5 of the n.C.P.Civil, that the judge is also forbidden to declare proven certain facts for which the law requires a certain special formality or by documents without this legal requirement being satisfied“.
Judgment of the Coimbra Court of Appeal, of December 15, Case no. 1376/18.9T8PBL-A.C1: Power of attorney. Interpretation. Bank discount.
“I – As the power of attorney is a formal legal act, the interpretation thereof must comply with the special rule laid down in Article 238(1) of the Civil Code, which means that the interpretation of such an act cannot prevail in a sense that does not have a minimum of correspondence with its text.
II – Bank discount, a paradigm of the credit contract, in Portuguese practice tends to be assimilated to a special loan.
III – The expression “contract any loan or credit” in the power of attorney, even in the sphere of a layperson’s knowledge, is so enlightening as to the limits of the representation powers conferred (cf. art. 262, (1) of the Civil Code), especially when complemented with “signing everything that becomes necessary for the good performance of the present mandate”, that it is unthinkable that, in this case, the representative has acted in abuse of representation.
IV – Thus, in the powers granted to the attorney-in-fact, mainly in allowing “to contract any loan or credit”, as a generic formulation, the power to sign the bank discount contract is included“.
Judgment of the Coimbra Court of Appeal, of December 15, Case no. 2550/20.3T8SRE-A.C1: Promissory notes. Enforcement Order. Guarantee. Preliminary dismissal of objections.
“I- A promissory note containing the essential requirements referred to in Articles 75 and 76 of the LULL constitutes an autonomous and abstract instrument of exchange, included in the list of enforceable instruments by virtue of the provisions of Article 703 (1), c) of the C.P.C., incorporating in the instrument the right represented therein, with full autonomy of the underlying fundamental relationship.
II- Once the guarantor has provided the promissory note subscriber with the guarantee, the obligation of the guarantor is an obligation to guarantee the payment of the guaranteed exchange obligation, on its maturity, and not of the underlying relationship obligation (article 32 of LULL), this guarantee obligation being maintained, even if the guaranteed obligation is null and void for any reason other than a defect of form (articles 75 and 76 of LULL).
III- Given the autonomous and abstract nature of the credit security and the guarantee function of the Guarantee, the guarantors may only oppose the enforcement of this obligation if they are in immediate contact with the holder of the promissory note (article 17 of LULL and 731 of C.P.C.), in which case it is their duty to allege and prove the facts relating to the abusive fulfilment of the completion agreement and the means of defence against the causal relationship, since they constitute exceptions of substantive law (article 342, no. 2 of the C.C.).
IV- As the petition for stay of execution does not contain the facts concerning the completion agreement and the causal relationship, nor that the guarantor is in immediate contact with the holder of the promissory note, this omission cannot be corrected, either by way of opposition to the motions to stay the execution or by way of a rectification order, thus imposing the immediate rejection of the motions on the basis of the manifest unfoundedness of the objections raised (Article 732, no. 2, c) of the Portuguese Civil Code)“.
Judgment of the Porto Court of Appeal, of December 2, Case no. 2318/18.7T8AGD.P1: Mandate contract. Expiry. Death of the principal. Heirs. Obligation to render accounts.
“I – The source of the administration that generates the obligation to render accounts does not matter. What matters is the fact of administration of third party property, whatever its source.
II – The mandating party is obliged to render accounts to the heirs of the principal on his death.
III – Despite the unquestionable personal nature of the mandate contract, which, moreover, results in the exclusion of the mandate relationship from the object of the succession, not being transmitted, in fact, to the heirs of the deceased principal or agent (cf. article 2025 (1) of the Civil Code), the obligation to render accounts has a patrimonial nature, being, therefore, transmissible by succession“.
Judgment of the Porto Court of Appeal, of December 2, Case no. 633/15.0T8AMT.P2: Insolvency. Discharge of the remaining liabilities. Change of residence to a foreign country of the applicant. Communication to the process of the new RMMG. Revision of the value of the assignment. Early assignment of exoneration procedure.
“I – The change of residence of the insolvent to a foreign country during the assignment period, in the discharge of the remaining liabilities, where he starts working in a situation of emigration, by means of a RMMG of a different value from the one that was in force in Portugal and based on which the value of the disposable income had been calculated, must be immediately communicated by him to the court.
II – Not having done so, the insolvent party is not exempt from communicating to the court the amount of his monthly income and from collaborating, in a serious and responsible manner, with the trustee in supplying the information requested, in order to ascertain the yield of the assignment.
III – If, even after several months of emigration, the insolvent, informing of that change of residence, employment and income, requested and obtained a revision of the value of the assignment, by a final and unappealable decision, but only from the date of that request, he cannot continue to defend in the proceedings the application of that amendment from the beginning of the assignment period.
IV – Having omitted payments since the beginning of the assignment period, the delivery of translated documents, the provision of those and other information to which he was obliged in the process, thus preventing the trustee from ascertaining his income, despite having been notified to that effect and warned of the consequences of his conduct, resulting in evident damage to creditors, the exoneration procedure must be terminated in advance, under the terms of Article 243, no. 1, paragraph a) and no. 3, of the CIRE)“.
Judgment of the Coimbra Court of Appeal, of December 15, Case no. 1735/10.5TBACB-C.C1: Insolvency. List of acknowledged claims. Opposition to the list of acknowledged creditors. Value of the recognised credits. Unsecured nature of the recognised claims. Promissory contract. Refusal of performance by the insolvency administrator. Advance payment.
“I) If the value of the claims in the list of recognised claims submitted by the insolvency administrator is not challenged, but only their unsecured nature is questioned, that value cannot be altered.
II) Thus, if the list of acknowledged claims includes one that refers to double the down payment due for breach of the promissory contract resulting from refusal to comply by the insolvency administrator and if that amount is not challenged, it cannot be changed despite the AUJ of the Supreme Court of Justice of 27 April 2021 in the sense that the civil sanctioning of article 442 of the CC embodied in the double of the down payment provided by the promissory purchaser does not operate in that case of refusal to comply.”
Judgement of the Évora Court of Appeal, of December 1, Case no. 340/21.5TBELV-A.E1. Delaying exception. Bank Credit. Regularization.
- The lack of compulsory integration of the bank customer in the PERSI, when the prerequisites for this are met, constitutes a legal impediment for the credit institution, the lending creditor, to take legal action with a view to satisfying its credit.
- This failure to comply with the legal regime amounts to an objective procedural requirement that is covered, with the necessary adaptations, by the legal regime of dilatory objections and leads to the dismissal of the case.
- In accordance with the provisions of Article 224 of the Civil Code, the recepienda declaration becomes apt to produce the effects intended by the declarant as soon as it is effectively known by the addressee or when it is in his possession in conditions to be known by him or as from the moment in which it would normally have been received by the addressee if he had not obstructed, with fault, its timely receipt.
- Where declarations that have been received are concerned, in accordance with the general rules on distribution of the burden of proof, it is for the person making the declaration to prove that he used a means of transmission that is capable of reaching the declarant’s sphere of knowledge and that the declaration was effectively received by him, whereas it is for the latter to convince that the declaration was received in such a way that, through no fault of his, it cannot be known.
- The communications of the integration of the executed persons in the PERSI and the termination of the PERSI must be made in a durable medium (which includes a letter or an e-mail), as emerges from the reading of Articles 14(4) and 17(3) of DL 227/2012, of 25/10, and the sending of registered mail is not required.
Judgment of the Évora Court of Appeal, of December 16, Case no. 2111/19.0T8STR-G.E1: Subsequent verification of claims. Interruption of the statute of limitations. Title of credit.
- In the light of Judgment 5/95 – now a Uniform Judgment of Jurisprudence – the interruption of the limitation period in respect of the person signing the promissory note does not have any effect on the respective guarantor.
- The same principle applies in relation to the guarantor of the drawer of the bill of exchange.
III.4. Administrative and Tax Court
Judgment of the Supreme Administrative Court, of December 9, Case no. 0257/17.8BELRA: Stamp tax. Financial transactions.
“Financial transactions between companies of the same group that do not comply with the provisions of Article 7, paragraph 1, g) of the Stamp Duty Code are not exempt from the payment of the respective tax.”
Judgment of the Supreme Administrative Court, of December 9, Case no. 0384/21.7BEVIS: Limitation period. Citation.
“I – The case-law of the Supreme Administrative Court has long held, overwhelmingly, that in cases where “the limitation period was interrupted by the service of summons, the cessation of the effectiveness of the interruptive event is deferred to the date of the decision which terminates the proceedings, In other words, “the interruption arising from the service of the writ of summons on the defendant renders ineffective all time that had elapsed prior to the date on which the interruptive event occurred and prevents the start of the new limitation period as long as the enforcement proceedings have not come to an end”.
II – The summons, as an interruptive cause of the institution of the statute of limitations, transversal to all types of debts (civil, tax – Article 49 (1) of the General Tax Law (LGT) – and equivalent …), holds and operates with a double effect; instantaneous (it interrupts, in the sense that it stops the counting and makes useless all the time previously elapsed) and, on the other hand, lasting (it does not allow the beginning of a new period of limitation until the end of the process, v.g., in which the enforced recovery of the debt is taking place).”.
Judgment of the Supreme Administrative Court, of December 9, Case no. 01098/16.5BELRS: Compensatory interest. Service fault.
“I – The right to compensatory interest, provided that the respective assumptions are verified, must be recognised by the AT to the taxable person, regardless of the request formulated by him in this regard (cf. art. 100 of the LGT and art. 61 (2), of the CPPT).
II – Even if the assessment has been correctly made in accordance with the factual elements declared by the taxpayer, if the latter has requested its annulment by means of an administrative appeal on the grounds of error in the factual assumptions and the AT unduly refuses or fails to comply with the decision deadlines, it should be considered that from that moment of the actual or presumed refusal decision, the error is imputable to the AT from (becoming an error of the services), leading to the AT paying compensatory interest on the amount paid to the taxpayer [cf. Article 43(1) and (3)(c) of the LGT].”.
Judgment of the Supreme Administrative Court, of December 9, Case no. 0804/18.8BEPRT. IRC. Judicial challenge. Special taxation regime.
“I – In this situation, in which the relevant moment in time for the determination of the two years of participation is at issue, we must appeal to a systematic interpretation of article 69(4)(c) of the CIRC, in the sense that it should be interpreted in consonance with the requirements foreseen in nos. 2 and 3 of the same legal precept, bearing in mind that the legislator defined the criteria for the application of the regime, among which is included subparagraph b) of no. 3, in which it is demanded that the participation is held by the controlling company for more than one year, establishing the second segment of the provision that this period is to be counted with reference to the date on which the regime begins to apply.
II – On the other hand, the second segment of paragraph c) of no. 4 only requires a longer period of holding on the part of the controlling company – two years – in cases where the company to be included records tax losses in the three financial years prior to the beginning of application of the regime, in such a way that, as this segment of the rule is an exception to the exception provided for in that rule (no. 4 provides for the cases in which application of the regime provided for in the previous paragraphs is waived), it must be interpreted in accordance with the elements provided for in nos. 2 and 3 of the same precept, which constitute the general rule, which is tantamount to saying that, as the general rule provided for in paragraph b) of no. 3 is that the period of holding a participation by the controlling company is to be counted “with reference to the date on which the application of the regime begins”, as stated above, it is not necessary in paragraph 4(c), which provides for a further case of application of the regime, to repeat this gauging element.
III – Therefore, we must conclude that the relevant time for measuring the two years of holding on the part of the dominant company in cases where the company to be included in the group’s perimeter has recorded tax losses in the three tax years prior to the beginning of application of the regime is the first day of the tax year in which application of the regime begins.”.
IV.1.1. Monographs and Periodic Publications
Manuel Monteiro Guedes Valente, Direito Penal do Inimigo e Terrorismo, 5ª Edição, Almedina, dezembro de 2021.
Manuel Monteiro Guedes Valente, Cadeia de Custódia da Prova, 3ª Edição, Almedina, dezembro de 2021.
Daniela Martins Pereira da Silva, A Ameaça à Integridade Territorial do Estados, Almedina, dezembro de 2021.
Abílio Neto, Código Civil Anotado, 20ª Edição, Ediforum, dezembro de 2021.
Fernando Gonçalves, Manuel João Alves, Vitor Manuel Freitas Vieira, Rui Miguel Gonçalves, Bruno Correia, Mariana Violante Gonçalves, Novo Código do Procedimento Administrativo – Anotado e Comentado, 7ª edição, Almedina, dezembro de 2021.
João Pacheco de Amorim, Introdução ao Direito dos Contratos Públicos, Almedina, dezembro de 2021.
David Falcão, Sérgio Tenreiro, Lições de Direito do Trabalho, 11ª Edição, Almedina, dezembro de 2021.
Jorge dos Reis Novais, Limites dos Direitos Fundamentais, Almedina, dezembro de 2021.
Jaime Valle, A Fiscalização Preventiva no Sistema Português de Controlo da Constitucionalidade, Almedina, dezembro de 2021.
José Gaspar Schwalbach, Direito Digital, Almedina, dezembro de 2021.
Maria Clara Sottomayor, Regulação do Exercício das Responsabilidades Parentais nos Casos de Divórcio, 8ª Edição, Almedina, dezembro de 2021.
Elisabete Cristina Correia de Sousa, Requisitos Gerais de Aplicação das Medidas de Coação, Almedina, dezembro de 2021.
IV.1.2. Generic Guidelines & Cia
Circulated Letter no. 4/2021 of 2021-12-07, by order of the Director-General of the Tax Authority.
Subject: Withholding tables – 2022 – Continent. IRS Code. Article 99 – F.
IV.2.1. Economy, Finance and Taxation
The Council of Ministers approved, on the 23rd of December, the amendment to the Portuguese Nationality Regulation, adapting it to the latest alterations made to the Nationality Law, namely the widening of access to original nationality and naturalization of persons born in Portuguese territory, and adapting it to the Portuguese Nationality Regulation in order to enable a fully electronic processing of nationality procedures and their electronic consultation.
On the same date, the following were also approved
- The resolution renewing the declaration of TAP, S.A., Portugália, S.A. and Cateringpor, S.A. in a difficult economic situation;
- The amendment to the law that establishes the legal framework applicable to the provision of postal services within the national territory, as well as international services originating or destined for the national territory, having introduced some adjustments regarding the price definition and quality of service regimes, taking into account the evolution of the universal postal service.
The Council of Ministers also approved, on 29 December, the drafts relating to 26 investment tax contracts, to be signed between the Portuguese State and several commercial companies, for the development of projects of particular interest to the national economy.
The measure represents an overall investment of more than 936 million euros and will have a maximum tax credit of 92 million euros. It also implies the creation of 1886 new jobs, until 2027, and the maintenance of the current 9442 jobs, covering productive investment projects, spread throughout the territory and with strong representation of the manufacturing industry.
V. INDUSTRIAL PROPERTY
Earlier this month, the President of INPI, Ana Bandeira, shared INPI’s experience in developing management tools in Public Administration, in a session promoted by LabX – Centre for Innovation in the Public Sector, of the Agency for Administrative Modernization, I.P. (AMA), dedicated to the topic – Involvement and participation in Public Administration: AP Participa.
The President of the Institute disclosed some of the management strategies of the organization, namely the consultation process with the workers carried out for the implementation of INPI’s Strategic Plan 2020-2023.
The University of Lisbon Law School, in partnership with the Portuguese Intellectual Law Association, announced that it will hold, in 2022, the 13th Postgraduate Course in Intellectual Property Law.
This Course aims to provide interested parties the opportunity to examine, in regular sessions to be held over a semester by experts of recognized merit, the most current problems of Intellectual Property Law.
This Postgraduate Course is divided into five modules, which may be attended separately, namely: i) Copyright Law; ii) Information Society Law; Protection of Innovation; iv) Contracting and Jurisdictional Protection of Intellectual Rights; and v) Distinctive Signs and Unfair Competition.
The National Institute for Industrial Property (INPI) and the China National Intellectual Property Administration (CNIPA) have this month renewed for a period of five years the Patent Prosecution Highway (PPH) pilot programme that exists between the two countries.
The relevant requirements and procedures for filing Patent Prosecution Highway (PPH) applications will remain unchanged for both offices.
The PPH pilot programme between Portugal and China was launched in 2014, renewed in 2019 and the current one will run from 1 January 2022 until 31 December 2026.
Also in December, the WIPO Academy, in collaboration with the IP for Business Division, developed a Training Program, entitled “International Patent Drafting”. This action was carried out within the scope of the efforts made by the World Intellectual Property Organization (WIPO) regarding the assistance provided to its Member States (MS), with the purpose of strengthening the patent drafting capabilities.
This Programme is a practical and comprehensive training, with mentoring provided by leading international drafting experts, with three phases spread over eight months.
Registration for the Programme is open until 31 January 2022.
Finally, INPI made available, on December 29, 12 new Patent Acts in the new digital services platform.
This action is part of the broader goal of standardizing all online services with the same technology, aiming to improve the offer of its digital services for more and better accessibility to information of the IP system.
Thus, the new services currently available are the following:
- Fee Supplement
- Application for devolution of fees
- Joinder of other documents
- Translation of Folio in European Patent (PTE.)
- Reply to notification
- Request for rectification
- Other entries
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS
- V. INDUSTRIAL PROPERTY