I. EDITORIAL – APPROVAL AND PUBLICATION OF THE DIPLOMA THAT REVISED THE HORIZONTAL PROPERTY REGIME.
The month of January was characterised, on a legislative level, by the approval and publication of Law no. 8/2022, of January 10, which revised the Horizontal Property Regime, amending the Civil Code, Decree-Law no. 268/94, of October 25, and the Notary Code.
Also of note, on the legislative front, are:
I) Ordinance no. 47/2022, of January 20, which made the 8th amendment to the Commercial Registry Regulations, approved in annex to Ordinance no. 657-A/2006, of June 29;
II) Decree-Law no. 11/2022 of January 12, which established the Legal Regime of Participatory Loans.
In the scope of case law, it is worth mentioning the Judgement of the Évora Court of Appeal, of January 13, Case nr. 18/21.0T8PTG.E1 , which clarified that “1. We cannot admit that the rents prior to the filing of the action and paid in delay are exempt from indemnity; 2 – There being delay, the fulfilment is only executed with the payment of the two instalments, that is, the tenant had also to pay the indemnity, whether the action was filed or not“.
In the same context, we would also highlight the Judgement of the South Administrative Central Court, of January 13, Case nr. 9687/16.1BCLSB , which decided that “1. Branches do not enjoy legal personality and as such do not constitute autonomous subjects of rights and obligations, as they are merely local administration bodies within the company structure. However, the branch of a company with its head office in a foreign country has tax personality and the capacity to sue for tax purposes in respect of income generated in Portugal. Considering the legislation then in force, payments made by the branch to the head office (a non-resident entity) for the provision of the equipment necessary to carry out work in Portugal were not subject to withholding tax”.
Finally, regarding Miscellaneous, we highlight the entry into force of the Provisional Application Protocol on the Unified Patent Court, after Austria has presented its instrument of ratification.
Law no. 1/2022, of January 3: Extends the period of justified absence in the event of the death of a descendant or relative in the 1st degree of the direct line, amending the Labour Code.
Law no. 2/2022, of January 3: Gradual extension of free nursery schools and kindergartens of the Social Security Institute, I. P.
Decree-Law no. 1/2022, of January 3: Changes the regime of evaluation of disability of people with disabilities.
Law no. 3/2022, of January 4: Current account between taxpayers and the State.
Ordinance no. 2/2022, of January 3: Approves the Regulations of the Incentive Scheme for Companies “Decarbonisation of Public Transport”, included in the investment TC-C15-i05 – Decarbonisation of Public Transport of the Recovery and Resilience Plan.
Law no. 5/2022, of January 7: Scheme for bringing forward the age of the old age pension due to disability.
Resolution of the Council of Ministers no. 1/2022, of January 5: Approves the Action Plan for the Prevention of Violence in the Health Sector.
Ordinance no. 13-A/2022, of January 4: Regulates the communication of the celebration of service provision contracts with professionals in the cultural area.
Ordinance no. 7/2022, of January 4: Regulates the conditions of publicity of working hours and the way of registering the respective working times.
Ordinance no. 6/2022, of January 4: Annual update of occupational accident pensions for the year 2022.
Law no. 7/2022 of January 10: Prohibition of geo-blocking practices and discrimination in electronic sales to consumers in the autonomous regions.
Law no. 8/2022, of January 10: Revises the horizontal property regime, amending the Civil Code, Decree-Law no. 268/94, of 25 October and the Notary Code.
Regulatory Decree no. 1/2022, of January 10: Establishes the terms and conditions for the recognition of the status of informal carer as well as the measures to support informal carers and persons being cared for.
Ordinance no. 26/2022, of January 10: Creates and regulates the measure Empreende XXI.
Law no. 9/2022, of January 11: Establishes measures to support and speed up company restructuring processes and payment agreements, transposes Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019, and amends the Insolvency and Company Recovery Code, the Commercial Companies Code, the Commercial Registration Code and related legislation.
Decree-Law no. 11/2022 of January 12: Establishes the legal framework for participatory loans.
Decree-Law no. 12/2022, of January 12: Amends the Mutual Counter-guarantee Fund.
Decree-Law no 15/2022 of January 14: Establishes the organization and functioning of the National Electricity System, transposing Directive (EU) 2019/944 and Directive (EU) 2018/2001.
Decree-Law no. 16/2022, of January 14: Amends the legal regime of landscape reconversion.
Ordinance no. 30/2022, of January 14: Makes the first amendment to Ordinance no. 371/2017, of 14 December, and approves the models for the new procedures provided for in Law no. 30/2021, of May 21.
Ordinance no. 38/2022, of January 17: Creates and regulates the Compromisso Emprego Sustentável (Sustainable Employment Commitment) measure.
Ordinance no. 41/2022, of January 19: Approves the percentages of the exchange rate correction mechanism, created by Decree-Law no. 35-B/2016, of June 30, for the 2nd semester of 2021.
Ordinance no. 43-A/2022, of January 19: Regulations of the Incentive Scheme “Agendas for Business Innovation”.
Ordinance no. 46/2022, of January 20: Regulates the electronic communications between the judicial courts or the Public Prosecution Service and the National Road Safety Authority within the scope of judicial proceedings.
Ordinance no. 47/2022, of January 20: Provides for the 8th amendment to the Commercial Registry Regulations, approved in annex to Ordinance no. 657-A/2006, of June 29.
Ordinance no. 53-A/2022, of January 24: First amendment to Ordinance no. 193/2021, which establishes the specific guidelines regarding the financial circuit applicable to the Recovery and Resilience Plan (RRP).
Notice no. 1535/2022, of January 25: Default interest rates in force in the first half of 2022.
Declaration of Rectification no. 4/2022, of January 28: Rectifies Ordinance no. 7/2022, of January 4, which regulates the conditions of publicity of working hours and the way of recording the respective working hours.
Ordinance no. 59-A/2022, of January 28: Produces the second amendment to Ordinance no. 328/2018, of December 19, which defines the certification regime for companies from third countries that intend to develop qualified activities in Portugal.
Ordinance no. 60/2022, of January 31: Amends Ordinance no. 913-I/2003, of August 30.
Ordinance no. 63/2022, of January 31: Amendment to Ordinance no. 262/2021, of November 23, which approves the Regulations of the Incentive Scheme for Companies “Promotion of Sustainable Bioeconomy”.
III.1. Court of Justice of the European Union
III.2. General Court of the European Union
III.3. Constitutional Court
Judgment of the Constitutional Court No. 34/2022 of January 18, Case no. 950/2021.
“In view of the above, it is decided: to dismiss the complaint filed by the appellant A., upholding the decision complained of in the sense of not deeming unconstitutional the rule contained in article 164, no. 1, paragraph a), of the Criminal Code, in the wording introduced by Law no. 101/2019, of 6 September, interpreted in the sense of covering the situations in which the victim suffers and does not actively practice copulation, anal or oral coitus;”
Judgment of the Constitutional Court no. 50/2022 of January 18, Case no. 1037/20.
“In these terms, it is decided: Do not deem unconstitutional the rule of article 824, no. 2, of the Civil Code, interpreted in the sense that the right of use and habitation of mortgaged property, which corresponds to a family dwelling house, whose registration is subsequent to the registration of a mortgage on the same property, lapses with the accomplishment of the execution sale”.
Judgment of the Constitutional Court no. 53/2022 of January 20, Case no. 748/19.
“For the above reasons, it is decided: Do not deem unconstitutional the rule resulting from the combined interpretation of article 2, paragraphs 1 and 4, of Ordinance No. 301/2015, of September 22, and the 1st line of the table of its Annex I, in the sense that the determination of the amount of the costs set by the Court of Arbitration for Sport is automatic, being made only based on the value of the cause, without any possibility of conformation by the judge according to the specificities of the concrete case”.
Judgment of the Constitutional Court no. 54/2022 of January 20, Case no. 421/20.
“For the reasons set out above, the Constitutional Court decides: Do not deem unconstitutional the rule resulting from subparagraph c) of paragraph 1 of article 48 of the General Regime of Civil Guardianship Procedure, in conjunction with paragraph 4 of article 738 of the Code of Civil Procedure, when interpreted in the sense that it does not establish any differentiation, based on the nature or amount of the income of the person judicially obliged to provide maintenance, and does not establish as a minimum limit of applicability the preservation of an amount equivalent to the value of the IAS.”
Judgment of the Constitutional Court no. 55/2022 of January 20, Case no. 711/20.
“In these terms and on these grounds, it is decided:
a) Not to deem unconstitutional the rule in article 52, no. 2 of the Corporate Income Tax Code, as amended by Law no. 64-B/2011, of 30 December, when it limits the reporting of tax losses – including those arising from the adjustment of financial assets measured at fair value and recognised through profit or loss in accordance with article 18, no. 9, para. 9 of the Corporate Income Tax Code – to the tax losses carried forward. This is also the case when the losses derive from adjustments of financial assets measured at fair value and recognised through profit or loss in accordance with Article 18(9)(a) of the same Code;
b) Not to consider unconstitutional the rule in article 116, no. 2 of Law no. 64-B/2011 of 30 December, in the part in which it determines the application of the new wording of article 52, no. 2 of the Corporate Income Tax Code to tax losses calculated in past years, including those resulting from measurements at fair value”.
Judgment of the Constitutional Court no. 57/2022 of January 20, Case no. 816/21.
“On these terms, it is decided: Not to deem unconstitutional the normative interpretation extracted from article 400, no. 1, paragraph e), of the Code of Criminal Procedure, to the effect that it is not admissible to appeal to the Supreme Court of Justice from judgments handed down, on appeal, by the relations, that merely revoke the suspension of the execution of the prison sentence not exceeding five years in which the non-appealing defendant was convicted at first instance;”
III.4. Courts of Justice
Judgment of the Lisbon Court of Appeal, of January 11, Case no. 16182/20.2T8SNT-A.L1-7. Enforcement action. Delivery of something certain. Leased property. Suspension of the execution. Presuppositions. COVID-19 Laws.
“1. The act of enforcement of the delivery of the leased premises, namely within the scope of enforcement proceedings for the delivery of the leased property, shall only be suspended during the period of validity of the exceptional and transitory regime introduced by Law no. 1-A/2020, of 19.03, amended by Law no. 13-B/2021, of 5.04, when, by virtue of the final decision to be handed down in the said proceedings, the tenant may be placed in a situation of frailty due to lack of an apartment or for another imperative social reason.
- This situation must be alleged and proved by the tenant and evaluated by the court, in order to justify the aforementioned suspension, which is not automatic”.
Judgment of the Lisbon Court of Appeal, of January 11, Case no. 289/19.1T8VFX.L1-1. Nullity of the decision. Recovery plan.
“1. In special revitalisation proceedings only a recovery plan approved by the creditors may be subject to the homologation judgment.
- In certain circumstances, when applicable, the approval itself may be subject to an autonomous court decision: i) in the case provided for in the introductory wording of no. 5 of Article 17-F in which the judge may compute, for the purposes of assessing approval, in the calculation of majorities, the claims that have been contested if he considers that there is a serious probability that they will be recognised; ii) in the assessment of the attribution of voting rights to creditors whose claims are not affected by the plan by application of the provisions of Article 212 no. 2, al. a) of the Companies Code. 212 no. 2, al. a) of the CIRE; and iii) the fixing of the number of votes conferred by credits claimed under suspensive condition by application of the provisions of no. 2 of art. 73 of the CIRE.
- The weighting to be made between subordinated and non-subordinated claims, under the terms of both Article 17-F.5(a) and (b) of CIRE does not require the issue of a decision on the ranking of claims in PER, this function being performed by the definitive list of claims or by the provisional list, in conjunction with the appraisal provided for in Article 17-F.5.
- The allocation of votes to contested claims, when the contestations have not been decided, under the terms of Article 17-F(5) of CIRE, is ex officio and compulsory when such appraisal is likely to influence the final result, that is, the conclusion of the approval or non-approval of the plan.
- The only occasion on which, in special revitalisation proceedings, the court may rule on the nature of a claim for the purposes of determining the quorum is in the decision of the specific objection presented by a legitimate party or in the summary assessment, for the purposes of Article 17-F no. 5 of the same objection. The change in the nature of a claim that has been acknowledged and not contested is not known of its own motion, neither at the stage of contesting claims, nor at a later stage.”
Judgment of the Lisbon Court of Appeal, of January 13, Case no. 18960/00.OTJLSB-D.L1-2. Accompanied major. Authorisation for the sale of goods.
“1. In the process of authorisation for the sale of property of an accompanied adult, the lack of challenge has no binding effect.
- The sale of goods of the beneficiary shall depend on authorization by the Court, which, after taking the steps it deems pertinent, shall grant it if it satisfies the interest of the beneficiary, in which case the Court may consider rules of good practical sense, composing in those terms, in the fair measure, the situation in question.
- In the interest of the beneficiary, the authorisation for the sale of property must be granted if the beneficiary’s income does not allow him to lead a dignified life and the sale price is fair in relation to the market, all the more so because in this case the major accompanied is co-owner of the property in question and the other co-owner has stated that he wishes to sell it, the property being indivisible by nature”.
Judgment of the Lisbon Court of Appeal, of January 13, Case no. 4106/11.2TCLRS-B.L1-8. Accompanied adult. Authorization of the accompanying person. Granting of a will. Inadmissibility.
“1. Law no. 49/2018 of 14/08, which created the legal regime of the accompanied adult and eliminated the institutes of interdiction and incapacitation, provided for in the Civil Code, approved by Decree-Law no. 47 344, of November 25, 1966, determined in its art. It established that the interdictions and incapacities already decreed started to be subject to the regime of accompanied adult, with the attribution of general powers of representation to the accompanying person (nº 4); it maintained the determination of the acts that the accompanied person cannot practice by himself or herself, foreseeing the possibility of such determination to be reviewed (nºs. 4, 6, and 8); and defined that the tutors started to have the statute of accompanying persons.
- The incapacitated adult remains prevented from exercising the rights that he was prevented from practicing as a consequence of the interdiction, namely, the right to test (see article 2189, al. b), of the CC in the previous wording of law 49/2018, of 14/08), without prejudice of being able to address a motivated request to the judge, requesting authorization for the free and direct practice of the act, and/or of being raised the revision of the accompaniment previously decreed in the light of the current regime (article 26, nr. 5, and 8, respectively, of the above mentioned law).
- The right to test belongs to the category of very personal rights, being, as such, not susceptible of being performed by third parties, namely by the accompanying person in representation of the accompanied adult, titleholder of the rights and goods to test, and consequently, the accompanying person’s authorization request to test on behalf of the accompanied adult cannot be granted, considering the provisions of articles 2179, no. 1, 2181, and 2182, as well as the provisions of articles 145, 1938, no. 1 and 1889, no. 1, all of the same Code”.
Judgment of the Lisbon Court of Appeal, of January 18, Case no. 318/21.9PGCSC.L1-5. Competence of the Municipal Police. Criminal police bodies.
“1. Municipal police forces are prohibited from exercising the competences of criminal police bodies. While there can be no doubt that the gathering of expert evidence for the purpose of the criminal prosecution of a person driving under the influence of alcohol is included in the exercise of the criminal police bodies’ own powers, they do not, however, have the power to order the defendant to take a blood alcohol level test.”
Judgment of the Guimarães Court of Appeal, of January 10, Case no. 27/20.6JABRG-C.G1. Civil claim for damages. Civil liability for unlawful acts. Contractual liability.
“1. The civil indemnity request deducted in criminal proceedings may only have as its source the extra-contractual civil liability based on the criminal tort – article 71 of the CPP and STJ Seat 7/99.
- In the case of destruction of vehicles deposited in a workshop, which were destroyed by arson, the cause of action for compensation for damage may be either the fire or the deposit contract, but only the former is admissible in criminal proceedings (principle of adhesion).
- The procedural intervention of a third party with purely civil liability in criminal proceedings is only admissible if the cause of action consists of the unlawful facts imputed to the defendant.”
Judgment of the Guimarães Court of Appeal, of January 10, Case no. 850/02.3GAFAF-A.G1. Prison sentence. Discount. Measures Restricting Freedom.
“1. The concept of “detention” in Article 26(1) of Framework Decision 2002/584, within the meaning of that provision, does not designate a restrictive measure but a measure depriving a person of his liberty.
- The conditional bail measure, in connection with extradition proceedings, imposed by the Westminster Magistrates Court, consisting in particular of an obligation on the defendant/appellant to remain indoors at his address of residence (or at any other address which the court has told him to reside at), every day between midnight (00:00) and 4:00 a.m., constitutes a measure of a judicial nature which is not in the nature of a measure depriving a person of his liberty.
- Consubstantiating only a measure restricting freedom, that time of four hours’ daily nocturnal stay in the house is not to be deducted from the fulfilment of the effective prison sentence applied in Portugal to the defendant”.
Judgment of the Guimarães Court of Appeal, of January 10, Case no. 1128/17.3GAFAF.G1. Crime of theft. Complaint. Lack of powers of representation. Ratification.
“1. The lack of proof, in the proceedings, by the person filing the criminal complaint that he had powers granted by the offended company to file such complaint on its behalf, does not necessarily imply that he did not have them.
- 2. In effect, the complaint, presented within the six-month period referred to in Article 115, nº 1, of the Penal Code, constitutes a timely and valid exercise of the respective right, although it is not fully effective.
- In these circumstances, the judge in charge of the criminal investigation cannot, when making an instructional decision, conclude, without further ado, that there is no complaint that is procedurally valid and, concomitantly, judge the criminal procedure opened against the accused extinct, without first giving the victim the possibility of ratifying the complaint”.
Judgment of the Guimarães Court of Appeal, of January 13, Case No. 164/21.0T8GMR-A.G1. Inheritance. Heirs. Legal Personality. Preemption action. Value of the cause. Deposit of the price.
“1. Only inheritance in abeyance – that which has already been opened, but not yet accepted nor declared vacant to the State – has judicial personality.
- The inheritance that has already been accepted by the respective heirs does not have judicial personality.
- 3. Rights regarding the inheritance can only be exercised jointly by all of the heirs, with the exception of the petition to inherit (which may be brought by any of the heirs individually) and actions concerning “peripheral succession phenomena”, for which the head of the couple will have legal standing.
- As an action has been filed in which the undivided estate, represented by its heirs, is identified as the plaintiff, there is no obstacle to considering that those filing the action, appearing as plaintiffs, are the heirs identified therein, as it is clear that this is a situation of undivided estate whose interests are held by the respective heirs.
- In a case such as the one at hand, the lack of legal personality is only apparent, since all the heirs are present, identified and have granted a power of attorney to the attorney who signed the petition, and it must be considered that they are the plaintiffs (and not the estate) who, together, exercise the rights relating to the estate, as follows from the provisions of Article 2091, no. 1 of the Civil Code.
- In a preference action, the value of the cause shall be that of the price practised in the business object of the preference.”
Judgment of the Guimarães Court of Appeal, of January 20, Case no. 629/14.0TTGMR.4.G1. Disability review. Reimbursement of medical expenses.
“1. Since the restoration of the injured person’s state of health, working or earning capacity and his recovery to active life is at issue, in situations where the injured person has sought, even if without the insurer’s knowledge, medical care or treatment that provided him with the restoration of his state of health and if justified in the light of the legis artis, the insurer itself should or would have had to provide them or bear their cost, since it is responsible for the reparation, it will always be liable for the price of the medical acts performed in the amount that would have been spent had it been the insurer who had to bear that cost
- 2. The injured person shall be entitled to reimbursement of the expenses incurred, if he proves that the medical acts and/or treatments contracted by him were appropriate for restoring his state of health and for his recovery to active life.
Judgment of the Évora Court of Appeal, of January 11, Case no. 580/18.4T9PTM.E1. Presumption of innocence. Sufficient evidence of the practice of the crime. Prohibition of valorisation of silence to the prejudice of the accused.
“1. The concepts of “sufficient evidence” (283/1 of the Code of Criminal Procedure) and “strong evidence” (Article 202/1 of the Code of Criminal Procedure) both in fact denote the same conviction, based on the consistency of evidence supporting a strong likelihood of a future conviction of the accused.
- During the investigation and later in the indictment, the accuser is responsible for rebutting the presumption of innocence enjoyed by the accused, since the sole purpose of the indictment is not to put a person on trial but rather (in truth) to impose a sentence or security measure on that person.
- From what the accused keeps silent, no unfavourable effect can be drawn.”
Judgment of the Évora Court of Appeal, of January 13, Case no. 3730/19.0T8ENT.E1. Horizontal Property. Constitutive title. Presumption of registration. promissory contract. Tradition of the thing. Reversal of title of possession.
“1. The constitutive title of the horizontal property identifies and individualises the autonomous fractions based on the utilisation permit issued by the local authority or the construction project.
- The buyer of a fraction, in which a certain garage is included, who registers the acquisition in accordance with what is stated in the deed and title of constitution of horizontal property, enjoys the presumption of ownership set out in article 7 of the Land Registry Code.
- The promissory contract of sale and purchase of immovable property with “traditio rei” does not confer possession of the property to the promissory buyer unless there is a reversal of the title of possession.
- The mere possession of the property does not invalidate the aforementioned registral presumption”.
Judgment of the Évora Court of Appeal, of January 13, Case no. 226/18.0T8BJA.E1. Land registry. Registration presumption.
“1. Although it is common ground that “The presumption of ownership of the property right contained in Article 7 of the Land Registration Code does not cover the area, limits, boundaries or confrontations of the buildings described in the register, since land registration is not, as a rule, constitutive and does not aim to guarantee the identification elements of the building”, the active registered holder cannot benefit from the presumption of ownership resulting from the register if it is not considered, until proven otherwise, to be, if not exact, at least approximate, the areas and locations indicated therein.
- The description and individualisation of ownership resulting from the registration must be based on some definition, otherwise only hollow and empty facts will be registered, and the registration will lose its publicity value (principle of speciality), although it is acknowledged that there may be some margin of error, namely as regards elements of identification which presuppose calculation or special technical knowledge”.
Judgment of the Évora Court of Appeal, of January 13, Case no. 18/21.0T8PTG.E1. Eviction. Lack of payment of rent. Compensation of the tenant.
“1 – It cannot be admitted that the rents prior to the filing of the action and paid in delay are exempt from compensation;
2 – In the event of default, compliance is only achieved with the payment of the two instalments, that is to say, the tenant must also pay the indemnity, whether or not the action has been brought”.
III.5. Administrative and Tax Court
Judgment of the Supreme Administrative Court, of January 12, Case no. 01975/09.0BELRS. CORPORATE INCOME TAX. Reimbursement. Tax. Withholding tax. Compensatory interest.
“1. The refund of tax due under a request for a refund formulated under the provisions of Article 89(2) of CIRC as amended by Decree-Law 198/2001 of 3/7 should be made by the end of the 3rd month following that in which the elements and information essential for proving the legally required conditions and requirements are presented;
- In the event of failure to meet this deadline, compensatory interest, calculated as from the date referred to in the previous paragraph – paragraph 3 of the same legal provision, shall be added to the amount to be repaid”.
Judgment of the Supreme Administrative Court, of January 13, Case no. 01123/08.3BEALM. Preliminary Assessment. Review. Arrábida Natural Park. Demolition. Housing.
“1. a review is admitted in which questions are raised on the nature of Regulatory Decree nº 23/98 and consequences deriving from that qualification, in particular whether the non-compliance with one of its norms can determine the nullity of the construction licensing in question in the records, as it has undeniable legal relevance and complexity, having an expansive capacity, in similar situations and that are still being discussed in the administrative courts”.
Judgment of the Southern Central Administrative Court, of January 13, Case no. 379/19.0BELRA.
“1. In the field of false invoicing, it is for the AT to demonstrate that the evidence gathered by it in the course of the inspection action is serious and sufficient to conclude that there is no existence or simulation of an economic relationship supporting the invoices.
- It is not required that the Tax Authorities carry out a direct proof of the simulation, so, by meeting this burden and overcoming the presumption of veracity of the taxable person’s declaration enshrined in article 74(1) of the LGT, it is incumbent on the taxable person to prove the underlying reality of the invoice, contradicting the evidence collected by the tax authority.
- As it is not disputed that registered checks were issued by the Defendant to the order of the targeted suppliers, and the corresponding payment was materialized, then, in order to legitimize the ineligibility of VAT deduction, the Tax Authorities would have had to go further, and it is not sufficient to rely on elements (external indications), having necessarily to obtain some indications from the taxpayer (internal indications) that, even if combined with those others, lead to the high probability that the invoices do not correspond to actual transactions”.
Judgment of the Southern Central Administrative Court, of January 13, Case no. 9687/16.1BCLSB. IRC. Withholding tax. Non-resident Entity. Permanent establishment.
“1. Branches do not enjoy legal personality and as such do not constitute autonomous subjects of rights and obligations, since they are merely local administration bodies within the company’s structure. However, the branch of a company with its head office in a foreign country has tax personality and the capacity to sue for tax purposes in respect of income generated in Portugal
- Considering the legislation then in force, payments made by the branch to the head office (a non-resident entity), for the provision of the equipment necessary to carry out work in Portugal, were not subject to withholding at source, in terms of IRC”.
Judgment of the Southern Central Administrative Court, of January 13, Case no. 64/17.8BCLSB. Provision of services. Grantors. VAT. Subjugation.
“1. VAT is a general tax on consumption which is levied on an economic activity, that is, on transactions which, having been subject to the objective criteria for levying the tax set out in Article 1 of the VAT Code, meet the requirements of Article 2(1) of the VAT Code.
- In accordance with Article 4(1) of the CIVA, transactions carried out for consideration which do not constitute intra-Community transfers, imports or acquisitions of goods are considered to be supplies of services”.
IV.1.1. Monographs and Periodic Publications
André Alfar Rodrigues, Manual Teórico-Prático de Compliance, Almedina, janeiro de 2022.
Jorge Miguel Morais Carvalho, Compra e Venda e Fornecimento de Conteúdos e Serviços Digitais-Anotação ao Decreto-Lei Nº 84/2021, de 18 de outubro, Almedina, janeiro de 2022.
Jorge Reis Novais, Princípios Estruturantes de Estado de Direito, 2.º Edição, Almedina, janeiro de 2022.
Carlos Ferreira de Almeida, Contratos I – Conceitos, Fontes, Formação, 7.ª Edição, Almedina, janeiro de 2022.
Pedro Infante Mota, Acordos Comerciais Preferenciais, Almedina, janeiro de 2022.
Manuel José Pimenta Gonçalves, A Aplicação Subsidiária do CPC ao Processo Tributário, Almedina, janeiro de 2022.
Armando Dias Ramos, Iva Carla Vieira, Manual Prático das Assembleias Gerais, Almedina, janeiro de 2022.
Luís Manuel Teles de Menezes Leitão, Direito das Obrigações – Volume 1: Introdução da Constituição das Obrigações, 16.º Edição, Almedina, janeiro de 2022.
Cristina Aragão Seia, A Responsabilidade Ambiental na União Europeia, Almedina, janeiro de 2022.
Sandra Passinhas, Responsabilidade Disciplinar Médica, Almedina, janeiro de 2022.
Maria Elisabete Gomes Ramos, Direito das Sociedades, Almedina, janeiro de 2022.
Luís de Lima Pinheiro, Estudos de Direito da Arbitragem, AAFDL Editora, 2022.
IV.1.2. Generic Guidelines & Cia
Circulated Letter no. 90049/2022, of 2022-01-13, by order of the Deputy Director-General of the Collection Department of the Tax and Customs Authority (AT).
Subject: Transitional and final provisions of Decree-Law no. 125/2021, of December 30.
Circulated Letter no. 20236/2022, of 2022-01-10, by order of the Deputy Director-General of the Tax Management Area-IR.
Subject: Alterations to declarations model 10, model 25 and model 37.
Circular Letter no. 20237, of 2022-01-27, by order of the Deputy Director-General of the Tax Management Area-IR.
Subject: IRC – rates of municipal surcharge on taxable income for the 2021 tax period.
IV.2.1. Economy, Finance and Taxation
The Council of Ministers approved, on the 6th of January, the Resolution that alters the measures in the scope of the calamity situation, among which we highlight:
– The limits regarding the occupation of spaces accessible to the public are maintained (maximum indicative occupation of 0.20 persons per square meter of area, with the exception of service establishments);
– The rules for access to tourist establishments or local accommodation, events and shows and gyms have been adjusted and access will now depend on the presentation of the EU COVID Digital Certificate in any of its modalities, presentation of proof of vaccination attesting the complete vaccination scheme, proof of a negative test result, including self-tests, under the terms to be defined by the DGS and INSA;
– For access to bars and discotheques (after closing time), access to major events, visits to residential facilities (such as nursing homes) and visits to healthcare establishments, the requirement to present a negative test remains, except for those who can demonstrate that they have been vaccinated for at least 14 days with a booster dose of a COVID-19 vaccine;
– The special measures on testing for the purpose of international flights are extended until 9 February 2022;
– Provision is made for prohibiting the consumption of alcoholic beverages in open-air spaces accessible to the public and on public roads, with the exception of open esplanades of restaurants and similar establishments duly licensed for that purpose.
On the same date, expenditure was authorized for the following procedures:
– Acquisition of software licensing, renewal and maintenance by Autoridade Tributária e Aduaneira;
– Renewal of the protocol signed between the Administração Regional de Saúde de Lisboa e Vale do Tejo, I. P., and Lusíadas – Parcerias Cascais, S. A., for the period of one year;
– 100% financing of co-participation contracts signed between the Instituto da Habitação e da Reabilitação Urbana, I.P. and the municipality of Lisbon to finance 256 houses under the 1st Law Programme and the Recovery and Resilience Plan (PRR).
The Council of Ministers also approved, on January 6, the Decree Law amending the measures under the pandemic disease Covid-19, which determined the reduction of the isolation period to seven days. This Decree-Law aims to streamline the procedures applicable to situations of isolation periods for infected but asymptomatic people or with mild disease, or people who are high-risk contacts.
For the appropriate purposes, it was determined that the provisional declaration of prophylactic isolation, until now only issued after contact with the National Health Service Contact Centre (SNS24), should be replaced by a provisional isolation declaration that can be issued through automated mechanisms.
V. INDUSTRIAL PROPERTY
On 10 January 2022, INPI made available a new User Area for B2B services. It should be noted that this innovation complies with SIMPLEX measure 64 – electronic dispatches and notifications in Industrial Property.
From the new User Area, we highlight the following functionalities:
– The filing of applications for protection of Industrial Property;
– The receipt of documents for payment;
– Access to documents in digital format;
– Receipt of notifications from the INPI;
– Communication with the INPI;
– Consultation of all the Industrial Property acts carried out, related to the portfolio of Industrial Property Rights or to new acts of the user.
The provisional statistical data from January to December 2021, concerning Industrial Property Rights applications and concessions, was published on January 13. In particular, invention concessions registered an increase of 56.5% (313), compared to the same period in 2020 (200).
All statistical reports, annual, half-yearly and monthly, on applications and grants of Industrial Property Rights are available at the IP Observatory.
On 10 January 2022, the European Union Intellectual Property Office (EUIPO) made available, together with the European Commission, a new European Union Small and Medium-sized Enterprise (SME) Support Fund.
This new fund establishes a simpler and more flexible financial regime.
To this end, the Support Fund will support up to 50% of the fees for national patent applications up to a maximum of EUR 750 per beneficiary SME. Cumulatively, SMEs may apply for direct financial support in the form of:
– Reimbursement of 75% of the costs incurred in filing one or more applications for trade marks and designs within the EU or 50% of the costs of international trade mark and design applications; or
– A reimbursement of 90% of the expenses incurred for IP pre-diagnostic services, up to a maximum amount of EUR 1 500 per company.
The Provisional Application Protocol on the Unified Patent Court (based on an international treaty: the Unified Patent Court Agreement) entered into force on January 29, after Austria submitted its instrument of ratification. It should be noted that Portugal deposited its instrument of ratification on 28 August 2015.
The Unified Patent Court will enable disputes relating to European patents and European patents with unitary effect to be resolved.
It is estimated that the Unified Patent Court will become operational by the end of this year or early 2023.
From 8 to 11 February 2022, the European Commission will promote a new edition of the European Union Industry Days 2022.
This event will aim to discuss the main challenges for industry, with a special focus on the green and digital transition in the different industrial ecosystems, and on strengthening the resilience of companies in the European Union.
Highlights of the programme include:
- A session aimed at creative and innovative SMEs and start-ups relying on intellectual property protection;
- A session devoted to the Unitary Patent, following the entry into force of the Protocol on Provisional Application concerning the Unified Patent Court.
Participation in the sessions is by registration through the link https://eu-industry-days.ec.europa.eu/register.
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS
- V. INDUSTRIAL PROPERTY