I. EDITORIAL – APPROVAL AND PUBLICATION OF THE DIPLOMA THAT INCREASED THE FINANCIAL SUBSIDY APPLICABLE TO CONSUMPTION AT PETROL STATIONS.
The month of March was characterised, on a legislative level, by the approval and publication of Decree-Law no. 24-A/2022, of March 11, which increased the financial subsidy applicable to consumption at petrol stations for the purposes of transitory and exceptional support to citizens for their consumption in the fuel sector (“AUTOvoucher” benefit).
Also of note, on the legislative front, are:
- Ordinance no. 112/2022, of March 14: Regulates the Statute of the Electro-intensive Customer;
- Decree-Law no. 26/2022, of March 18: Amends the Regulation on Portuguese Nationality;
- Council of Ministers Resolution no. 29-E/2022 of March 18: Creates an extraordinary and exceptional support for the sector of freight transport for third parties.
In the scope of case law, it is worth mentioning the Judgment of the Coimbra Court of Appeal, of March 8, Case no. 824/20.2T8ANS.C1., which clarified that “I – The Extrajudicial Procedure for the Regularisation of Non-Compliance Situations (PERSI) constitutes a protection mechanism applicable to bank customers who are in breach of their obligations arising from credit agreements, preventing banking institutions from immediately initiating judicial proceedings with a view to the satisfaction of their credits. II – Omission of the PERSI integrates an innominate dilatory plea that determines the acquittal of the defendant from the enforcement proceedings. III – It is the enforcer’s burden to allege and prove the existence, sending and respective receipt by the debtor of the communications required under the PERSI. IV – In the absence of facts indicating bad faith, the debtor’s invocation of the legal rules of the PERSI legal regime in his favour does not constitute an abuse of rights.“.
In the same context, we would also highlight the Judgment of the Évora Court of Appeal, of March 10, Case no. 2278/20.4T8LLE-A.E1., which decided that “The time limit for the contentious challenge of the rejection of the request for legal aid in the form of appointment of a lawyer, provided for in Article 27 of Law 34/2002, counts for the interruption of the time limit for the applicant to present his defence, whether or not there has been that challenge.”.
Finally, regarding Miscellaneous, we highlight the approval, on March 3, of the Portugal 2030 Partnership Agreement which materialises the agreement to be established between Portugal and the European Commission, setting out the major strategic objectives for the application, between 2021 and 2027, of the overall sum of 24.182M€, from the European Regional Development Fund (ERDF), the European Social Fund + (ESF+), the Cohesion Fund, the Fair Transition Fund (FTJ) and the European Maritime, Fisheries and Aquaculture Fund (EMFF).
Ordinance no. 105-A/2022, of March 1: Second amendment to Ordinance no. 1432/2008, of December 10, amended by Ordinance no. 225/2020, of September 29, which approved the model residence permit to be issued to foreign citizens authorized to reside in national territory.
Council of Ministers Resolution no. 29-A/2022 of March 1: Establishes the specific criteria for granting temporary protection to persons displaced from Ukraine as a result of the recent armed conflicts in that country.
Ordinance no. 106/2022, of March 3: Undertakes the first amendment to Ordinance no. 38/2022, of January 17, which regulates the “Compromisso Emprego Sustentável” (Commitment to Sustainable Employment) measure.
Declaration of Rectification no. 8/2022, of March 7: Rectifies Decree-Law no. 12/2022, of January 12, which alters the Mutual Counter Guarantee Fund.
Council of Ministers Resolution no. 29-C/2022 of March 7: Extends the declaration of the situation of alert, in the context of the pandemic of the disease COVID-19.
Ordinance no. 110/2022, of March 10: Makes the first amendment to Ordinance no. 38/2021, of February 16, which creates carbon taxes on air and sea travel.
Council of Ministers Resolution no. 29-D/2022, of March 11: Extends the scope of granting temporary protection to persons displaced from Ukraine as a result of the recent armed conflicts in that country.
Decree-Law no. 24-A/2022, of March 11: Increases the financial subsidy applicable to consumption at fuel filling stations for the purposes of transitory and exceptional support to citizens for their consumption in the fuel sector (“AUTOvoucher” benefit).
Decree-Law no. 24-B/2022, of March 11: Establishes exceptional measures within the framework of granting temporary protection to displaced persons from Ukraine.
Ordinance no. 111-A/2022, of March 11: Revision and setting of the rates of tax on oil and energy products.
Ordinance no. 112/2022, of March 14: Regulates the Statute of the Electro-intensive Customer.
Ordinance no. 113/2022, of March 14: Establishes the general conditions applicable to the attribution of financial support foreseen in Law no. 37/2021, of June 15, which has as its object the energy used in agricultural and livestock production and in storage, conservation and commercialisation activities for agricultural products.
Declaration of Rectification no. 11-A/2022, of March 14: Rectifies Decree-Law no. 15/2022, of January 14, which establishes the organisation and operation of the National Electricity System, transposing Directive (EU) 2019/944 and Directive (EU) 2018/2001.
Decree-Law no. 25/2022, of March 15: Establishes the flight time limits, duty time and rest requirements for civil aviation mobile personnel.
Ordinance no. 114/2022, of March 15: Amendment to the specific regulations of the Mar 2020 Operational Programme, for mainland Portugal.
Decree-Law no. 26/2022, of March 18: Amends the Regulation on Portuguese Nationality.
Council of Ministers Resolution no. 29-E/2022, of March 18: Creates an extraordinary and exceptional support for the sector of freight transport for third parties.
Ordinance no. 116-A/2022, of March 18: Extends the validity of Ordinance no. 111-A/2022, of March 11.
Ordinance no. 116-B/2022, of March 18: Temporarily updates the value of the unit rate of tax on oil and energy products.
Council of Ministers Resolution no. 29-F/2022, of March 21: Extends the declaration of the situation of alert, in the context of the pandemic of the disease COVID -19.
Ordinance no. 118/2022, of March 23: Suspends the updating of the rate of the addition on CO2 emissions until 30 June 2022.
Ordinance no. 119/2022, of March 23: Undertakes the second amendment to Ordinance no. 121/2021, of June 9, which regulates the electronic filing of documents drawn up by notaries and other documents filed at registry offices, the permanent notarial certificate and the participation of acts by electronic means to the Central Registry Office.
Decree-Law no. 27-A/2022, of March 23: Approves the legal regime for the creation of credit lines within the agricultural sector.
Decree-Law no. 28-A/2022, of March 25: Establishes support measures for families and businesses in the context of the armed conflict in Ukraine.
Decree-Law no. 28-B/2022, of March 25: Establishes measures regarding the recognition of professional qualifications of beneficiaries of temporary protection in the context of the armed conflict in Ukraine.
Ordinance no. 128-A/2022, of March 25: Revision and setting of the rates of tax on oil and energy products.
Ordinance no. 3560/2022, of March 25: Increases the monthly “AUTOvoucher” benefit to an amount corresponding to € 0.40 per litre, with a monthly limit of 50 litres.
Ordinance no. 129/2022, of March 28: Makes the sixth amendment to Ordinance no. 255 -A/2021, of November 18, amended by Ordinance nos. 281-A/2021, of December 3, 312 -A/2021, of December 21, 319 -A/2021, of December 27, 57/2022, of January 27 and 105/2022, of February 28, establishing an exceptional and temporary reimbursement scheme for rapid antigen tests (TRAg) for professional use.
Ordinance no. 34-A/2022 of March 28: Extends the declaration of the situation of alert, in the context of the pandemic of the disease COVID-19.
Ordinance no. 132/2022, of March 30: Makes the first amendment to Ordinance no. 61/2022, of January 31, which regulates the recognition, validation and certification of skills under the “Qualifica” Programme.
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.180/2022 of March 3, Case no. 227/2022.
“The Constitutional Court decides:
a) To pronounce on the unconstitutionality of the rule of article 4, no. 2, paragraph b), of the “Legal Regime of the Activity of Individual and Paid Transport of Passengers in Uncharacterized Vehicles from an Electronic Platform for the Autonomous Region of the Azores”, approved by Decree no. No. 1/2022 of the Legislative Assembly of the Autonomous Region of the Azores, for violation of the provisions of Article 227, no. 1, paragraph a), in conjunction with Article 165, no. 1, paragraph b), with reference to Article 47, no. 1, all of the Constitution of the Portuguese Republic;
b) To pronounce on the unconstitutionality of the rule in article 4, no. 2, paragraph f), of the “Legal Regime of the Activity of Individual and Paid Transport of Passengers in Ordinary Vehicles from an Electronic Platform for the Autonomous Region of the Azores”, approved by Decree no. No. 1/2022 of the Legislative Assembly of the Autonomous Region of the Azores, for violation of the provisions of Article 227, no. 1, paragraph a), in conjunction with Article 165, no. 1, paragraph b), with reference to Article 47, no. 1, all of the Constitution of the Portuguese Republic
c) To pronounce on the unconstitutionality of the norms of article 13 of the “Legal Regime of the Activity of Individual and Paid Transport of Passengers in Ordinary and Remunerated Vehicles from an Electronic Platform for the Autonomous Region of the Azores”, approved by Decree no. No. 1/2022 of the Legislative Assembly of the Autonomous Region of the Azores, for violation of the provisions of Article 227(1)(a), in conjunction with Articles 165(1)(b) and 17, with reference to Article 61(1), all of the Constitution of the Portuguese Republic.”
Judgment of the Constitutional Court no. 191/2022 of March 17, Case no. 46/20.
“For all the above reasons, it is decided:
a) Not to consider unconstitutional the provision of article 147(2) of the Companies Code, approved by Decree-Law 262/86, of 2 September
b) Consequently, granting the appeal, order the reform of the appealed decision in conformity with the decision on the constitutionality issue”.
Judgment of the Constitutional Court No.192/2022 of March 17, Case no. 955/2022.
“For the foregoing reasons, it is decided:
a) Not to consider the object of this appeal insofar as it relates to the interpretations extracted from Article 135, paragraphs 3 and 4, of the Code of Criminal Procedure;
b) To hold unconstitutional the interpretation of article 643, no. 4, of the Code of Civil Procedure, in conjunction with articles 620 and 652, no. 3, of the same statute, in the sense that it is admissible that the Supreme Court of Justice, on its own initiative and in a collective majority, revokes the singular decision of admission of the appeal
c) To hold unconstitutional, for violation of article 20, no. 4 of the Constitution, the combined interpretation of articles 3, no. 3, 620, 643, no. 4, and 652, no. 3, of the Code of Civil Procedure, according to which the appellant is not granted the right to be heard or to exercise the right to contradictory procedure in relation to a decision modifying the admissibility of the appeal rendered, after the rapporteur’s singular decision of admission, by the same Court; and, consequently
d) uphold the appeal in that part, ordering the reform of the contested decision in accordance with the preceding positive finding of unconstitutionality”.
III.4. Courts of Justice
Judgment of the Coimbra Court of Appeal, of March 2, Case no. 168/18.0GAACB-A.C1: Nullity of the indictment. Interrogation of the accused. Return of the case to the Public Prosecutor’s Office.
“I – Revealing, as a result of the appending of one enquiry to another, new facts indicative of crimes about which the defendant was not confronted, and could be, the subsequent charges (public and private), encompassing such facts, are (partially) null, for having been omitted legally mandatory act, namely, the interrogation of the defendant on the said factuality.
II – Considering the principle of accusation, the JIC may not order the practice of the omitted act in the pre-trial phase or return the case to the Public Prosecutor’s Office for the reinvestigation”.
Judgment of the Coimbra Court of Appeal, of March 2, Case no. 106/21.2T9SCD.C1: Criminal record. Cancellation. Prohibition of proof.
“I – The consideration of a criminal record certificate that contains decisions that, in legal terms, should no longer be included therein constitutes a true prohibition of evidence.
II – If the court is found to have violated this prohibition on valuing evidence, it will be necessary to rethink and, possibly, reformulate both the choice and the sentence imposed on the accused, removing from the respective grounds all decisions entered on the criminal record certificate whose validity periods have already expired”.
Judgment of the Coimbra Court of Appeal, of March 2, Case no. 58/18.6PEVIS.C1: Industrial Property. Sale. Circulation or concealment of products or articles. Placing on the market. Putting into circulation. New law. Old law.
“The meaning and scope of the act of “placing on the market” provided for in Article 320(d) of the current Industrial Property Code, approved by DL 110/2018, of 10-12, is equivalent to the act of “putting into circulation” referred to in Article 324 of the previous version of the same Code, that is, in that of DL 36/2003, of 05-03, as amended by Law No. 83/2017, of 18-08.”.
Judgment of the Guimarães Court of Appeal, of March 7, Case no. 42/18.0GTVCT.G1: Crime of driving a vehicle under the influence of alcohol. Traffic Accident. Control of driving under the influence of alcohol. Examination by blood analysis.
“I – It follows from Articles 153 and 156, No. 1 of the Highway Code (EC) that, even in the event of a traffic accident, drivers should preferably and whenever possible be tested for alcohol in breath.
II – The expression “where this has not been possible” in Article 156(2) of the EC covers a number of reasons and not only those relating to the state of health of those involved in the accident.
III – Amongst these reasons may be the need to respect the time (30 minutes) and the modus operandi provided for in the Regulation on Control of Driving under the Influence of Alcohol (Law No 18/2007 of 17.05), in which case, where it is not feasible to carry out a breath alcohol test, blood analysis should be used.”
Judgment of the Coimbra Court of Appeal, of March 8, Case no. 454/14.8T2OBR.C1: Maintenance obligation. Incident of non-compliance. Successive non-compliance. Abuse of procedural law. Procedural good faith.
“I – The coercive collection of food established by sentence that regulates parental responsibilities may be petitioned by the mechanism foreseen in article 48 of the RGPTC or by the special execution for food foreseen in article 933 of the CPC, being up to the creditor to choose the procedural means that appears to be the most convenient.
II – Once an incident of non-compliance relating to a specific situation of non-compliance with the maintenance obligation has been raised, the subsequent situations of non-compliance that occur must be processed within it, it being forbidden to raise a new and autonomous incident for each subsequent non-compliance to be processed in an autonomous joined case.
III – Abuse of procedural law essentially corresponds to the improper exercise, at a functional level, of the right to sue, distorting the fundamental right to a fair and equitable process, in the dimension of guaranteeing access to the courts, through effective judicial protection, which is conformed by objective procedural good faith”.
Judgment of the Coimbra Court of Appeal, of March 8, Case no. 701/12.0TBCLD-A.C1: Mortgage creditor. Service of summons to claim. Plurality of executions. Stay of execution. New claim.
“A mortgage creditor who has been served with a writ of execution, under the terms of Article 786 of the CPC, in order to claim his credit therein and does not do so within the legal time limit, may not benefit from the preference resulting from that guarantee in the context of a claim that, in the context of the same execution, he may formulate subsequently, under the provisions of Article 794(2) of the CPC and following the stay of the execution that, in the meantime, he has instituted with a view to the payment of his credit.”
Judgment of the Coimbra Court of Appeal, of March 8, Case no. 5360/21.7T8CBR-B.C1: Insolvency. Natural person. Managing partner. Suspension of insolvency proceedings. Multiple proceedings.
“I – For the purposes of the provisions of article 249(1)(a) of the CIRE, the status of partner and manager of a company is not equivalent to the ownership of the operation of a company.
II – The presentation of the payment plan determines the suspension of the insolvency proceedings in which such plan was presented and other insolvency proceedings that are pending against the same debtors.”
Judgment of the Coimbra Court of Appeal, of March 8, Case no. 448/22.0T8CBR.C1: Seizure. Justified fear of loss of patrimonial guarantee. Current credit. Future credit.
“I – The facts capable of fulfilling, in a precautionary order for attachment, the legal requirement of justifiable fear of loss of assets may vary widely. For example: fear of flight of the debtor, evasion or concealment of assets, the debtor’s poor financial situation or any other conduct with regard to his assets that, objectively, makes it possible to foresee and fear the danger that collection of the credit will become impossible or difficult.
II – The credit that constitutes grounds for the attachment decree has to be current, constituted, in force, and cannot be future, hypothetical, eventual, even if probable”.
Judgment of the Coimbra Court of Appeal, of March 8, Case no. 824/20.2T8ANS.C1: Extrajudicial procedure for the settlement of defaults. Communication. Burden of proof.
“I – The Extrajudicial Procedure for the Regularisation of Non-Compliance Situations (PERSI) constitutes a protection mechanism applicable to bank customers who are in breach of their obligations arising from credit agreements, preventing banking institutions from immediately initiating judicial proceedings with a view to the satisfaction of their credits.
II – Omission of the PERSI integrates an innominate dilatory plea that determines the acquittal of the defendant from the enforcement proceedings.
III – It is the enforcer’s burden to allege and prove the existence, sending and respective receipt by the debtor of the communications required under the PERSI.
IV – In the absence of facts indicating bad faith, the debtor’s invocation of the legal rules of the PERSI legal regime in his favour does not constitute an abuse of right.”
Judgment of the Lisbon Court of Appeal, of March 10, Case no. 22031/21.7T8LSB-A.L1-2: Ordinary precautionary procedure. Preservation of evidence.
“I – An ordinary precautionary procedure may be requested in order to preserve the state of affairs – work carried out by the claimant – which will have to be submitted to proof, in order to enable the anticipated production of proof of assumptions of the right to credit to payment for the work carried out.
II – This is because the anticipated production of proof, subject to contradictory proceedings, would give knowledge to the defendant of the plaintiff’s claim and, with that, the possibility of altering that state of affairs, making that production of proof impossible or very difficult.
III – The judicial court is competent to hear such a precautionary procedure, even if there is an agreement to settle by arbitrators any disputes arising between the parties (articles 7 and 29 of the LAV).”
Judgment of the Lisbon Court of Appeal, of March 10, Case no. 26585/21.0T8LSB.L1-2: Regulation of parental responsibilities. International jurisdiction of the Portuguese courts. Suspension of proceedings.
“I – As the father initiated a parental responsibility proceedings concerning his daughter, alleging that the minor is illegally detained in Poland with her mother, and also stated that he had filed a request for the return of the minor to the Central Administrative Authorities, the provisions of Articles 8 to 11 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility must be invoked.
II – It is not appropriate to consider that the decision on the merits of the case (the regulation of the exercise of parental responsibilities) is dependent on the judgment of another already proposed, concerning the process (possibly pending in Polish courts) triggered following the presentation of the request for return, what is certain is that, in the present case, the assessment of the procedural assumption of the (international) jurisdiction of the Portuguese courts is “dependent” on the judgment of that process”.
Judgment of the Évora Court of Appeal, of March 10, Case no. 400/21.2T8OLH-A.E1: Special Revitalisation Process. Homologation. Principle of equality.
“I – In the special revitalisation process (PER), the failure to mention in the list of creditors the due date of the credits does not constitute a defect suitable for the preliminary rejection of the initial petition.
II – When issuing the order referred to in Article 17-C(4) of CIRE, the judge is not responsible for inquiring into the material requirements of the procedure, namely whether the debtor’s recovery is viable.
III – The principle of equality of creditors does not prohibit the establishment of distinctions between them, it only prohibits differences in treatment without sufficient material grounds, without reasonable justification according to relevant objective criteria.
IV – The reorganization plan may admit different treatment of creditors based on the distinct classification of their claims.
V – A plan providing for full payment of secured and privileged claims and only 30% of ordinary claims does not violate the principle of equality if it can be concluded that ordinary creditors would be worse off if the plan were not approved”.
Judgment of the Évora Court of Appeal, of March 10, Case no. 56/20.0T8LGA-A.E1: Claims. Right of retention. Traditio of the thing.
“I – Although the contracting parties in the promissory contract declared that they attributed real effectiveness to the promise, it was demonstrated that the acquisition of the property was previously submitted to the registry, a registry that deserved, under the terms of the law, a mention of provisional nature, the provision of no.1 of article 106 has not been fulfilled for the effect of binding Mr. AI to the celebration of the promised contract.
II – As for the “traditio” element, which is broken down into two essential elements, one negative, corresponding to the abandonment of the thing by the former holder, and the other, of an opposite sign, expressing the taking of power over the thing (apprehensio), it is necessary for the one who intends to avail himself of the traditio to prove these two elements.
III – On the sole proof that following the signing of the promissory contract of purchase and sale of the property, in which works were being carried out and which the promissory seller had undertaken to complete, the legal representative of the promissory buyer visited the property a number of times, this is a fact which does not unequivocally express material dominion over the building – apprehensio – whereby the latter was unable to provide proof of “traditio” for the purposes of benefiting from the regime laid down in Article 106(1) of the CIRE.”
Judgment of the Évora Court of Appeal, of March 10, Case no. 1951/16.6T8ENT-A.E3: Extension of time limit. Continuity of procedural time limits.
“I – The fundamental difference between the extension of the procedural time limit set by law (Article 141/1 and 2 of the CPC) and the one set by the judge is that, in the latter, the agreement of the opposing party is not required in its fixing or in its extension.
II – Once the procedural time limit set by the judge is extended, there will be a single time limit, with the duration of the sum of those two periods, which runs according to the continuity rule provided for in Article 138/1 of the Code of Civil Procedure.
III – The court has the discretionary power (here understood as the choice of the best solution among several possible ones and not a merely arbitrary exercise, which is illegal), to decide in compliance with the principle of formal suitability (Article 547 of the CPC), of cooperation with the parties (Article 7), of management, economy and procedural promptness (Article 6 of the CPC), which aim to protect the interests of the parties. These procedural principles are manifestations in ordinary law of the constitutional principle of access to the right and to effective judicial protection, intrinsic to Article 20/4 and 5, of the Constitution of the Portuguese Republic.
IV – The equidistance and the substantial equality of the parties, referred to in Article 4 of the CPC, cannot be forgotten by the judge in all the acts that he performs in the process, and it is up to him to apply the procedural sanctions that the law determines, including ordering the removal of the document from the case file after the initial deadline plus the extension, more than three days after its expiry and without alleging and demonstrating just impediment”.
Judgment of the Évora Court of Appeal, of March 10, Case no. 2278/20.4T8LLE-A.E1: Legal aid. Opposition. Time limit for the complaint.
“The time limit for the contentious challenge of the rejection of the request for legal aid in the form of appointment of a lawyer, provided for in Article 27 of Law 34/2002, counts for the interruption of the time limit for the applicant to present his defence, whether or not there has been that challenge.”
III.5. Administrative and Tax Court
Judgment of the Southern Central Administrative Court, of March 3, Case no. 1335/09.2BELSB: State Civil Liability. Delay in Justice. Guilt of the injured party.
“I – As the ECtHR has repeatedly held, non-pecuniary damage is a normal consequence of the violation of the right to a decision within a reasonable time and should be presumed where the violation has been objectively established.
II – The fact that the AA. did not promote the acceleration of the criminal proceedings nor had they filed the civil claim separately in order to interrupt the statute of limitations, contributed to the production of the damages so that the reduction of the compensation is founded.”
Judgment of the Southern Central Administrative Court, of March 3, Case no. 787/19.7 BELSB: Technical administrative discretion. Duty to state reasons. Statement of reasons by reference.
“I – When assessing the incapacity of a worker arising from an accident at work, the medical board enjoys technical administrative discretion as to its assessment, which does not remove the need to comply with the duty to state reasons.
II – As the procedure contains contradictory clinical elements, the report of the Medical Board of Appeal that fails to present any justification that enables the addressee to be clarified as to the reasons for maintaining the degree of devaluation of incapacity, does not comply with that duty.
III – The justification by remission, provided for in article 153, no. 1, of the CPA, implies the reference in the administrative act to information, opinion or proposal that contains the respective motivation, of which it appropriates and becomes an integral part thereof.”
Judgment of the Southern Central Administrative Court, of March 3, Case no. 315/07.7BEFUN: Construction licensing. PDM. Principle of tempus regit actum.
“I- By effect of the tempus regit actum principle (cf. article 67 of the RJUE) the legal and regulatory norms in force on the date of their practice, namely those of territorial planning, are applied to construction works licensing acts.
II-This will only not be the case if the alteration or revision of the Territorial Planning Plan is attributed retroactive effect.
III- By operation of law, the legal consequence of the violation of Territorial Planning Plan norms is the nullity of the licensing act.
IV- Nullity is incurable, either by the passage of time – which is why it may be invoked at any time by any interested party (134º, nº 2 of CPA/1991) – or by ratification, reform and conversion (137º, nº 1 of CPA/91)”.
Judgment of the Southern Central Administrative Court, of March 3, Case no. 1229/11.1BELSB: Delay in decision by administrative body. Non-material damage.
“I – If it is true that the legal regime in force provides the interested parties with legal means to try to correct the inertia of the Administration, and, notwithstanding the fact that the referred legal means that would “oblige” the Administration to act, have not been used, the incomprehensible apathy and immobility of the Commission for the Protection of Crime Victims, which for more than 10 years failed to respond to the Request submitted to it, cannot be ignored, given that the duty to decide within the scope of an administrative procedure within a reasonable period of time, is an obligation incumbent upon the Administration, which gives rise to civil liability of the State, within the scope of the exercise of its administrative function.
II – Article 22 of the Constitution of the Portuguese Republic stipulates that the State and other public entities are civilly liable, jointly and severally with the holders of its bodies, employees or agents, for actions or omissions practised in the exercise of their functions, which result in the violation of rights, freedoms and guarantees or harm to others.
III – Since it is clear that the reasonable time period for the decision of the procedure tending to the concession of the compensation provided for in nº1, of article 2, of Decree-Law nº 423/91, of 30th October, was exceeded, it is obligatory to conclude that the lack of decision in this procedure constitutes an illicit omission that generates extra-contractual civil liability of the State”.
Judgment of the Supreme Administrative Court, of March 10, Case no. 01192/14.7BELRS: Stamp duty. Financial transactions.
“Commissions paid by insurers (not covered by the exemption provided for in Article 7(b)(1) of the CIS) do not have a financial nature, nor are they subsumed under Verba 17, and must, by virtue of the special discipline enshrined in Verba 22, “Insurance”, be subject to taxation.”
IV.1.1. Monographs and Periodic Publications
Alexandre Soveral Martins, Um Curso de Direito da Insolvência – Volume 1, 4.ª Edição, Almedina, março de 2022.
António Menezes Cordeiro, Direito das Sociedades I – Parte Geral, 5.º Edição, Almedina, março 2022.
António José Moreira, Escravidão Dignidade Trabalho, 3.ª Edição, Almedina, março de 2022.
António Monteiro Fernandes, Direito do Trabalho, 21.º Edição, Almedina, março de 2022.
António Beça Pereira, Regime das Geral Contraordenações e Coimas, 13.ª Edição, Almedina, março de 2022.
Carla Amado Gomes, Introdução ao Direito do Ambiente, 5.º Edição, AAFDL Editora, março 2022.
Carlos Blanco de Morais, Curso de Direito Constitucional – Lei e Sistema Normativo – Tomo 1, Almedina, março de 2022.
Fernando dos Reis Condesso e Ricardo Alexandre Azevedo Condesso, Direito do Urbanismo e do Ambiente, 2.ª Edição, Almedina, março de 2022.
José Avillez Ogando, A Nulidade do Ato Tributário, Almedina, março de 2022.
José Lebre de Freitas, Armando Ribeiro Mendes e Isabel Alexandre, Código de Processo Civil Anotado – Volume 3.º Artigos 627.º a 877.º, 3.º Edição, Almedina, março de 2022.
Mário Aroso de Almeida, Manual de Processo Administrativo, 6.ª Edição, Almedina, março de 2022.
Miguel Assis Raimundo, Direito dos Contratos Públicos – Volume 1: Introdução– Regime de Formação, AAFDL Editora, março 2022.
Miguel Assis Raimundo, Direito dos Contratos Públicos – Volume 2: Regime Substantivo, AAFDL Editora, março 2022.
Mário Aroso de Almeida, Teoria Geral do Direito Administrativo, 9.ª Edição, Almedina, março de 2022.
Paulo de Tarso Domingues, O Financiamento Societário pelo Sócios (E o seu Reverso), 2º. Edição, Almedina, março 2022.
Paula Marques Carvalho, Manual Prático de Processo Penal, 13.º Edição, Almedina, março 2022.
Pedro Romano Martinez, Direito do Trabalho, 10.º Edição, Almedina, março 2022.
Rita Lobo Xavier, Manual de Direito das Sucessões, Almedina, março 2022.
IV.1.2. Generic Guidelines & Cia
Circular No.: 4/2022, of 2022-03-03, by order of the Director-General of the Tax and Customs Authority-AT.
Subject: IRS withholding tables for income earners from dependent work and pensions with tax residence in Portuguese territory, with the exception of the Autonomous Regions of the Azores and Madeira, to be applied from 1 March 2022.
Circular No.: 5/2022, of 2022-03-11, by order of the Director-General of the Tax and Customs Authority-AT.
Subject: IRS withholding tables for income earners from dependent work and pensions with tax residence in the Autonomous Region of the Azores, to be applied from 1 March 2022.
Circular Letter No.: 20240, 2022-03-17, 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. https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_circulado_20240_2022.pdf
Dispatch 92/2022-XXII, of March 14, of the Deputy Secretary of State and Tax Affairs
IV.2.1. Economy, Finance and Taxation
On March 1, the Council of Ministers approved the resolution granting temporary protection to nationals of Ukraine and their family members, as well as citizens of other nationalities who prove to be relatives, relations, spouses or nonmarital partnership of citizens of Ukrainian nationality, as a result of the war situation.
In this context, specific criteria for granting temporary protection to displaced persons from Ukraine have been established under Law 67/2003 of August 23, which transposes into national law Council Directive 2001/55/EC of July 20 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.
The Council of Ministers also approved, on March 3, the Portugal 2030 Partnership Agreement that materializes the agreement to be established between Portugal and the European Commission, setting the broad strategic objectives for the implementation, between 2021 and 2027, of the overall amount of 24.182M€, from the European Regional Development Fund (ERDF), the European Social Fund + (ESF +), the Cohesion Fund, the Fair Transition Fund (FTJ) and the European Maritime Affairs, Fisheries and Aquaculture Fund (EMFF).
Subsequently, the following were approved on 10 March: i) the Resolution amending the scope of application of Council of Ministers Resolution no. 29-A/2022, of March 1, extending the scope of application of the temporary protection regime to nonUkrainian third country nationals or stateless persons and their family members benefiting from international protection in Ukraine, as well as to non-Ukrainian third country nationals or stateless persons residing in Ukraine who are unable to return to their country of origin; (ii) the Decree Law increasing the financial allowance applicable to consumption at petrol stations for the purpose of transitional and exceptional support to citizens for their consumption in the fuel sector (“AUTOvoucher” benefit). This benefit will correspond to a reimbursement of 40 cents per litre of fuel (in a total of 50 litres/month).
The Council of Ministers also approved, on the past 18th of March, the Resolution that authorizes the extraordinary support to companies that operate in the transport sector of merchandise for third parties that are licensed by the IMT, consisting of a subsidy of 30 cents per litre of fuel for vehicles with weight under 35 tons, and 20 cents for vehicles with weight over 35 tons.
IV.2.2. Industrial Property
On 7 March 2022, Europol and EUIPO made available the latest threat assessment of Intellectual Property Rights crime in the European Union.
The report notes the growing distribution of counterfeit goods, particularly foodstuffs, pharmaceuticals and luxury goods, among others. This report is an important step in the work of the European Multi-Disciplinary Platform against Threats to Crime (EMPAC).
The provisional statistical data for January to February 2022, concerning applications and grants of Industrial Property Rights, was published on 16 March.
In particular, invention grants increased by 4.9% (43), compared to the same period the previous year (41) and, with regard to invention applications, they rose from 123 (2021) to 125 (2022).
The European Union Intellectual Property Office, together with the European Commission, has made available a new European Union Small and Medium-sized Enterprise Support Fund, to run until 2022.
In addition to the benefits already existing in the year 2021, through this initiative, SMEs can now benefit from support in the modalities of international patents and trademarks/designs and from a co-participation of 90% of the expenses incurred with the IP Scan (Industrial Property pre-diagnosis service), up to a maximum amount of 900 euros.
SMEs will be able to apply to the SME Fund all year round.
The conflict in Ukraine led to the implementation of national measures on Industrial Property by INPI, namely: i) no cooperation actions with the Rospatent, the Russian Federal Service for Intellectual Property and the Eurasian Patent Organisation; and ii) providing all support to users of Ukrainian nationality, and users of other nationalities residing in Ukraine, in safeguarding their Industrial Property Rights (IPR).
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- I. EDITORIAL
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