EDITORIAL
The year 2021, just like the year 2020, was prolific at the legislative level, both in the scope of the so-called Covid-19 legislation, which continued to mould the legislative reality to the evolution of the pandemic derived from the Covid-19 disease, and in the most diverse socio-economic spheres and areas of Portuguese society, including, as an example, the areas of taxation, housing, leasing and also justice.
Although numerous pieces of legislation directly or indirectly related to the Covid-19 pandemic were published, the year 2021 was marked by greater stability in the publication of non-pandemic related pieces of legislation, which deserve special mention.
In this sense, and despite the natural difficulties of selection, we highlight the main diplomas and case-law published during the year 2021.
LEGISLATION
The first quarter of 2021 was characterised, at the legislative level, by the approval and publication of:
I) Decree-Law No. 9/2021, of January 29, which approved the Legal Regime of Economic Offences, amending several pieces of legislation;
II) Law no. 4-A/2021, of February 1, which clarified the exceptional regime applicable to contracts of exploitation of real estate for commerce and services in shopping centres, through an interpretative rule of Law no. 2/2020, of 31 March, Law no. 4-B/2021, of February 1, which established a regime of suspension of procedural and procedural time limits arising from the measures adopted in the scope of the COVID-19 disease pandemic, amending Law no. 1-A/2020, of 19 March and Law no. 7/2021 of February 26, which strengthened the guarantees for taxpayers and simplified procedures, amending the General Tax Law (Lei Geral Tributária), the Code of Tax Procedure and Proceedings (Lei Geral Tributária), the General Regime of Tax Infractions (Regime Geral das Infrações Tributárias) and other legislative acts;
III) Law no. 11/2021,of March 9, which exceptionally suspended the terms of the collective labour agreement and Decree-Law no. 22-C/2021,of March 22, which extended the grace periods on public sector guaranteed loans and approved a special scheme for the provision of guarantees by the Mutual Counter Guarantee Fund, within the scope of the COVID-19 disease pandemic.
In the second quarter of 2021 it was approved and published:
I) Law no. 13-B/2021, of April 5, which terminated the regime of suspension of procedural and procedural deadlines adopted within the scope of the COVID-19 disease pandemic and Law no. 21/2021, of 20 April, which amended the Statute of Tax Benefits, the Stamp Duty Code, the Investment Tax Code, the Vehicle Tax Code and the Single Tax Code, which amended the Statute of Tax Benefits, the Stamp Duty Code, the Investment Tax Code, the Vehicle Tax Code and the Single Circulation Tax Code, and created an extraordinary measure for counting time limits within the scope of Corporation Tax (IRC);
II) Decree-Law No. 34/2021 of 14 May, which approved the system for the injunction procedure in matters of tenancy (IMA), Law No. 32/2021 of 27 May, which sets out limitations on the wording of contractual terms and provides for the creation of a system for the control and prevention of unfair terms, and Law No. 27/2021 of 17 May, which approved the Portuguese Charter of Human Rights in the Digital Era;
III) Law no. 36/2021, of June 14, which approved the Framework Law of the Public Utility Statute and Decree-Law no. 53-B/2021,of June 23, which established the exceptional regime of budget execution and simplification of procedures of projects approved under the Recovery and Resilience Plan.
In the third quarter of 2021 we highlight the approval and publication:
I) Decree-Law no. 63/2021 of July 28, which created a capitalisation fund for commercial companies, called the Capitalisation and Resilience Fund, Law no. 50/2021 of July 30, which extended bank moratoria, amending Decree-Law no.10-J/2020, of March 26, and also the Decree-Law no. 64/2021, of July 28, which approved the creation of the Treasury Support Line for Micro and Small Enterprises, called “MEP Support Line”, aimed at supporting the treasury of micro and small enterprises that are in a situation of business crisis;
II) Law no. 54/2021, of August 13, which transposed into Portuguese law Directive (EU) 2019/1153, which sets out rules to facilitate the use of information for the prevention, detection, investigation or prosecution of criminal offences, and also amends the General Framework of Credit Institutions and Financial Companies, Law no. 55/2021, of August 13, and Law no. 56/2021, of August 16, which introduced mechanisms to control the electronic distribution of judicial proceedings and the administrative and tax courts, respectively, amending both the Civil Procedure Code and the Procedure Code of the Courts, Law no. 56/2021, of August 16, which introduced control mechanisms for the electronic distribution of judicial and administrative and tax proceedings, respectively, amending both the Code of Civil Procedure and the Code of Procedure of Administrative Courts and the Code of Tax Procedure and Proceedings, respectively, and lastly, Law no. 57/2021, of August 16, which extended the protection of victims of domestic violence, amending Law no. 112/2009, of September 16, the Criminal Code and the Code of Criminal Procedure;
III) Ordinance no. 192-A/2021, of September 14, which regulates the Treasury Support Line for Micro and Small Enterprises (MEP Support Line), approved by Decree-Law 64/2021, of 28 July, Ordinance no. 193/2021, of September 15, which establishes specific guidelines on the financial circuit applicable to the support of the Recovery and Resilience Plan (PRR), within the scope of the Recovery and Resilience Mechanism (RRM).
Finally, the fourth quarter of 2021 was characterised by the approval and publication of:
I) Law no. 69-A/2021, which created the possibility of setting maximum marketing margins for simple fuels, amending Decree-Law no. 31/2006, of February 15, and Ordinance no. 209/2021, of October 18, which approves the model for the standard report on domestic violence, hereinafter referred to as “Auto VD”;
II) Law no. 77/2021 of November 23, which amended the Judicial System Organisation Act and Decree-Law No. 49/2014 of March 27, which establishes the regime applicable to the organisation and operation of the judicial courts, as well as Law no. 70/2021, of November 4, which established the exemption from stamp duty on operations to restructure or refinance loans in default;
III) Decree-Law no. 109-B/2021, of December 7, which approved the updating of the minimum monthly salary and created an exceptional compensation measure, and 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, to be in force in 2022.
CASE-LAW
At the case-law level, the following Judgements can be highlighted in the first quarter of 2021:
I) The Judgment of the Court of Justice of January 20, Case no. C-484/19, which clarified the interpretative meaning to be given to Article 49 of the Treaty on the Functioning of the European Union, establishing that a company established in a Member State is not authorised to deduct interest paid to a company belonging to the same group, established in another Member State, on the ground that the obligation binding them appears to have been contracted primarily with a view to obtaining a significant tax advantage;
II) Judgment of the Constitutional Court no. 101/2021 of February 4, Case no. 1238/17, which decided to deem unconstitutional “for violating the prohibition on creating taxes with a retroactive nature, set out in Article 103(3) of the Constitution, the rule in Article 135 of Law no. 7-A/2016, of March 30, in the part in which it attributes an interpretative nature to the new wording given to Article 51(6) of the IRC Code by Article 133 of that same Law“;
III) Judgment of the Constitutional Court no. 123/2021 of March 15, Case no. 173/2021, which ruled, with reference to Decree no. 109/XIV of the Assembly of the Republic, sent to the President of the Republic for promulgation as law, and which regulates the special conditions under which the anticipation of medically assisted death is not punishable, amending the Criminal Code:
“a) To pronounce the unconstitutionality of the rule contained in its article 2 (1), based on the violation of the principle of determinability of the law as a corollary of the principles of the democratic rule of law and of the reservation of parliamentary law, arising from the combined provisions of articles 2 and 165 (1) (b), of the Constitution of the Portuguese Republic, by reference to the inviolability of human life enshrined in article 24 (1) of the same normative; and, consequently
b) To rule on the unconstitutionality of the norms contained in articles 4, 5, 7 and 27 of the same Decree. “.
In turn, in the second quarter of 2021, the following stand out:
I) The Judgment of the Court of Justice of April 22 , Case no. C-73/20, clarifying the interpretation to be given to Article 13 of Regulation (EC) No 1346/2000 on insolvency proceedings and Article 12(1)(b) of Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I), providing that the law applicable to the contract under the latter regulation is also applicable to payment made by a third party in performance of the contractual obligation to pay.593/2008 on the law applicable to contractual obligations (Rome I), providing that the law applicable to the contract under the latter regulation also applies to a payment made by a third party in performance of a contractual obligation to pay one of the parties to the contract where, in the context of insolvency proceedings, that payment is challenged as an act prejudicial to all the creditors;
II) The Judgment of the Court of Justice of May 12, Case no. C-844/19, which clarified that Article 90(1) and Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with the principle of fiscal neutrality, must be interpreted as meaning that a refund resulting from an adjustment of the taxable amount under Article 90(1) of that directive must, like a refund of an overpayment of value added tax under Article 183 of that directive, give rise to interest where it is not made. It is for the national court to do everything within its power to ensure that those provisions are fully effective, by interpreting national law in conformity with European Union law;
III) The Judgment of the Court of Justice of June 3, Case no. C-182/20 which clarified that Articles 184 to 186 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation or practices according to which the taxable person is required to pay value added tax in the Member State where he is established. The Court held that Articles 184 to 186 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation or practices under which the opening of insolvency proceedings against a trader, which entails the liquidation of his assets for the benefit of his creditors automatically places that trader under an obligation to settle value added tax deductions made by him in respect of goods and services acquired prior to the declaration of his insolvency, where the opening of those proceedings does not prevent him from pursuing his economic activity within the meaning of Article 9 of that directive. Article 9 of that directive, in particular for the purposes of the liquidation of the undertaking concerned.
In the third quarter of 2021, the following stand out:
I) The Judgment of the Constitutional Court of July 14, Case no. 356/2021, which declared the unconstitutionality, with mandatory general force, of the rules contained in Article 3 of Law No. 16/2021 of 7 April, Article 2 of Law No. 16/2021 of 7 April and Article 2 of Law No. 15/2021 of 7 April, but reserved the effects produced by those rules until the publication of that ruling in the Official Gazette;
II) The Judgment of the Constitutional Court of August 12, Case no. 1046/2020, which decided “not to consider unconstitutional the interpretation of articles 58, no. 2, 59, nos. 1 and 2 and 101, all of the CPTA, combined with article 279 of the CC, according to which, when counting the time limit to file a challenge to the adjudication act in pre-contractual litigation, the rule of sub-paragraph b) of article 279 of the CC does not apply. In this context, it is important to note that the time-limit for filing an action to contest the act of awarding a contract, in the context of pre-contractual litigation, does not consider the rule of paragraph b) of article 279 of the CC, but only the rule of paragraph c) of the same precept“;
III) The Judgement of the Lisbon Court of Appeal, of September 9, Case no. 5584/12.8TBSXL-D.L1-2, which clarified that the “simplified regime of mass assignment of claims, exempts, for the procedural qualification related to the assignment of claims provided therein, the deduction of the qualification incident provided for in Article 356 of the CPC“, operating the qualification through “simple attachment of a copy of the assignment agreement to the file. “.
Finally, in the last quarter of 2021, the following case-law stands out:
I) The Judgement of the Guimarães Court of Appeal, of October 7, Case no. 753/20.0T8VNF-D.G1, which clarified that “The special immovable privilege referred to in article 333, no. 1, paragraph b) of the Labour Code, covers all the employer’s real estate allocated to its business activity, to which the workers are functionally connected. This connection does not have to be naturalistic, that is, it does not necessarily have to do with the physical location of each worker’s workplace, but merely functional, and for this purpose it is sufficient that the properties form part of the productive organisation of the company to which the workers belong“;
II) The Judgement of the Guimarães Court of Appeal, of November 4, Case no. 121/20.3T8BCL.G1, which ruled that “In order to conclude that there were false statements regarding justification of absences due to incapacity for work due to illness, it is necessary to demonstrate the falsity of the statements contained in the incapacity certificate and that the worker knowingly falsified the truth of the facts with a view to deceiving the employer. The fact that the worker has failed to comply with the conditions relating to the possibility of being away from home, set out in the incapacity certificates, does not in itself mean that he is already fit for work“;
III) Judgment of the Constitutional Court no. 896/2021, of December 7, Case no. 436/2021, which decided “not to consider unconstitutional the rule extracted from article 10, no. 12, of the Personal Income Tax Code, (…) 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 moment of acquisition of the shares until the moment of their direct or indirect sale in more than 50% by means of assets. No. 2 of the same article does not cover capital gains from shares in companies whose assets are constituted, from the time of the acquisition of the shares until the time of their disposal, directly or indirectly, in more than 50%, by immovable property or rights in rem on immovable property situated in Portuguese territory. “.
MISCELLANEOUS
As for Miscellaneous, we highlight, in the first quarter of 2021:
I) The approval, by the Council of Ministers, on the 28th of January, of the Decree that proceeds to a set of alterations regarding the measures that regulate the extension of the state of emergency decreed by the President of the Republic;
II) The approval by the Council of Ministers, on February 25, of the decree-law that determines the ownership of the broadcasting rights of the 1st and 2nd League football championships and establishes the rules for their commercialization;
III) The approval by the Council of Ministers, on 25 March, of the decree-law, subsequently published as Decree-Law no. 25-A/2021, of March 30, which extends the exceptional and transitory regime of work reorganisation and minimisation of risks of transmission of COVID-19 disease within the scope of labour relations.
In the second quarter of 2021, we highlight:
I) The approval by the Council of Ministers, on the 29th of April, of the decree-law that creates an exceptional measure of compensation for employers due to the increase of the minimum monthly salary (RMMG), through the attribution of a pecuniary subsidy;
II) ) The approval by the Council of Ministers, on May 27, of the decree-law reviewing the regime applicable to energy efficiency management contracts to be signed between public administration services and organisms and service providers;
III) The approval by the Council of Ministers, on June 24, of the Decree-Law that executes in the internal legal order the Regulations relative to the Digital Certificate COVID of the European Union.
In the third quarter of 2021, it is worth highlighting:
I) The approval, on the July 22, by the Council of Ministers, of the decree-law that establishes the legal regime applicable to the performance, through videoconference, of authentic acts, terms of authentication of private documents and acknowledgements, seeking to meet the demand for online services, given the restrictions imposed on the practice of face-to-face acts due to the Covid-19 disease pandemic;
II) The approval, on August 16, of the decree-law that amends the rules on the organisation and exploitation of the mutual betting competitions “Totobola” and “Totoloto” and establishes new percentages for the sums intended for prizes in the State’s social games;
III) The approval, on September 23, of the creation of the figure of the National Coordinator of the Children’s Guarantee, with his or her own competencies and remunerative status, fulfilling the recommendation that establishes a European Guarantee for Children.
Finally, in the fourth quarter of 2021, special emphasis should be placed in:
I) The delivery of draft Law no. 116/XIV/3, approving the State Budget for 2022, by the Minister of State and Finance to the President of the Portuguese Parliament, and the consequent rejection of that draft Law, prepared by the Government, on 27 October 2021;
II) The Council of Ministers Communication of November 4 of 2021, which approved extraordinary and exceptional support for the public road passenger transport sector, to be supported by the Environmental Fund, with a view to mitigating the effects of the cyclical increase in fuel prices;
III) The approval, by the Council of Ministers, of 26 tax investment contracts, to be signed between the Portuguese State and several commercial companies, for the development of projects with particular interest for the national economy.
E-LEGAL® NEWSLETTER – JANUARY 2021
1.1. EDITORIAL – EXTRAORDINARY ECONOMIC SUPPORT MEASURES; LEGAL REGIME OF ECONOMIC OFFENCES; REGULATION OF THE STATE OF EMERGENCY
In the month of January we highlight, at the legislative level, the approval and publication, on the one hand, of Decree-Law no. 6-C/2021, of January 15, which extended the extraordinary support for the progressive recovery of activity in companies in a situation of business crisis, and, on the other, of Decree-Law no. 6-E/2021, of January 15, which created extraordinary support measures for workers and economic activity, taxpayers, the cultural sector, consumers and commerce, in the context of the state of emergency.
On a legislative level, the following diplomas should also be highlighted: i) Ordinance no. 19-A/2021, of 25 January, which regulates the procedures for the attribution of extraordinary income support to workers, in order to ensure the continuity of income of people in a situation of particular economic unprotection caused by the COVID-19 disease pandemic; ii) Decree-Law no. 9/2021, of 29 January, which approved the Legal Regime of Economic Administrative Offences, and finally; iii) Decree no. 3-D/2021, of January 29, which regulated the extension until 14 February of the state of emergency decreed by the President of the Republic.
Concerning case-law it is noteworthy the Judgement of the Justice Court of January 20, Case C-484/19, that clarified the correct interpretation of the Article 49 of the Treaty on the Functioning of the European Union (TFEU). It was provided that a company established in one Member State is not permitted to deduct interest payments made to a company belonging to the same group, established in another Member State, on the ground that the principal reason for the debt linking them appears to be the obtaining of a substantial tax benefit.
In turn, we highlight the Judgment of the Constitutional Court no. 25/2021 of 13 January, Case No. 99/2020, which, after a request for clarification from the President of the Court of Auditors to the Constitutional Court, decided “that the members of the Council for the Prevention of Corruption are not required to submit the single declaration of income, assets, interests, incompatibilities and impediments provided for in Article 13(1) of Law no. 52/2019 of July 31“.
Finally, in Miscellaneous, we would like to point out the Council of Ministers approval, on January 28, of the Decree that proceeds to a set of amends about the legal measures that regulate the extension of the state of emergency made under the Decree of the President of the Republic.
Ordinance no. 2/2021, of January 4: Defines the minimum coverage, conditions and capital applicable to the civil liability insurance provided for in Article 10 of Decree-Law no. 58/2018 of 23 July, to be concluded by operators of unmanned civil aircraft (“UAS operators” Unmanned Aircraft System).
https://dre.pt/application/conteudo/152810682
Council of Ministers Resolution no. 2/2021, of January 5: Extends the supply of programme services on digital terrestrial television.
https://dre.pt/application/conteudo/152850635
Decree-Law no. 1/2021, of January 6: Transposes Directive (EU) 2019/1831, which establishes a fifth list of work exposure limit values for chemical agents.
https://dre.pt/application/conteudo/153013704
Ordinance no. 5/2021, of January 6: Updates the annual reference value of the basic component of social assistance for inclusion and the annual limit on the accumulation of the basic component with earnings from work.
https://dre.pt/application/conteudo/153013705
Decree of the President of the Republic no. 6-A/2021, of January 6: Renews the declaration of a state of emergency on the basis of a public calamity situation.
https://dre.pt/application/conteudo/153138220
Assembly of the Republic Resolution no. 1-A/2021, of January 6: Authorises the renewal of the state of emergency.
https://dre.pt/application/conteudo/153138221
Decree-Law no. 2/2021, of January 7: Proceeds with the second amendment to Decree-Law no. 214/2003, of 18 September 2003, amended by Decree-Law no. 126/2015, of 7 July 2015, which transposes into national law Directive No. 2001/110/EC on honey.
https://dre.pt/application/conteudo/153138206
Decree-Law no. 3/2021, of January 7: Extends the deadline for the integration of the rules on special land-use plans.
https://dre.pt/application/conteudo/153138207
Ordinance no. 7/2021, of January 7: Fixes the percentage to be allocated to the Tax Stabilisation Fund.
https://dre.pt/application/conteudo/153138212
Ordinance no. 8/2021, of January 7: Approves the model forms for complying with the declaration obligation laid down in Article 57(1) of the IRS Code and the instructions for completing them.
https://dre.pt/application/conteudo/153138213
Regional Regulatory Decree no. 1-A/2021/A, of January 7: Regulates, in the Autonomous Region of the Azores, the application of the Decree of the President of the Republic no. 6-A/2021, of January 6, which renews the state of emergency.
https://dre.pt/application/conteudo/153341292
Decree no. 2-A/2021, of January 7: Regulates the extension of the state of emergency decreed by the President of the Republic.
https://dre.pt/application/conteudo/153341303
Decree-Law no. 4/2021, of January 8: Establishes the extension of ADSE to holders of individual employment contracts who perform functions in public legal entities.
https://dre.pt/application/conteudo/153341277
Ordinance no. 10/2021, of January 8: Establishes the system applicable to fishing authorisations for deep-sea species, listed in Annex I to regulation (EU) 2016/2336 of the European Parliament and of the Council of 14 December 2016.
https://dre.pt/application/conteudo/153341280
Ordinance no. 11/2021, of January 8: Amendment of the Regulation on compensation to fish farmers for the temporary suspension or reduction of production and sales as a result of the outbreak of COVID-19, adopted by Ordinance no. 162-B/2020, of June 30.
https://dre.pt/application/conteudo/153341281
Law no. 1/2021, of January 11: First amendment to Law no. 17/2014, of April 10, establishing the Basis of the National Maritime Space Planning and Management Policy.
https://dre.pt/application/conteudo/153519404
Decree-Law no. 5/2021, of January 11: Establishes: a) The rules applicable to real estate in the private domain of the State and of public institutes located abroad or to be assigned to other States or to international organisations; and b) The terms for the regularisation, between public entities, of situations requiring formalisation concerning the transmission, use or assignment of public real estate.
https://dre.pt/application/conteudo/153519406
Ordinance no. 12/2021, of January 11: Proceeds with the first amendment to Ordinance no. 178-C/2016, of July 1, which establishes the procedures, model and other conditions necessary for the application of the amendments to article 6 of Decree-Law no. 101/2011, of September 30, as currently worded, which creates a single and automatic model for the allocation of social tariffs for the supply of natural gas to economically vulnerable customers in the territory of continental Portugal.
https://dre.pt/application/conteudo/153519407
Ordinance no. 12-A/2021, of January 11: Proceeds with the first amendment to Ordinance no. 125-A/2019, of April 30, which regulates the processing of the tender procedure for recruitment, pursuant to article 37(2) of the General Law on Labour in Public Functions, approved by Law no. 35/2014, of June 20.
https://dre.pt/application/conteudo/153519418
Decree-Law no. 6/2021, of January 12: Ensures the implementation in national law of the provisions of Regulation (EU) 2019/515, of the European Parliament and of the Council, of 19 March 2019, on the mutual recognition of goods lawfully marketed in another Member State.
https://dre.pt/application/conteudo/153663456
Ordinance no. 13/2021, of January 12: Fixes the amounts of fees due under the administrative procedures laid down in Decree-Law no. 62/2020, of August 28, on activities relating to the production of gases of renewable origin, low-carbon gases and the marketing of gas.
https://dre.pt/application/conteudo/153663457
Law no. 1-A/2021, of January 13: Extends until 30 June 2021 the deadline for meetings of local government bodies and intermunicipal entities to be held by remote means of communication, amending Law no. 1-A/2020 of March 19, which approves exceptional and temporary measures in response to the epidemiological situation caused by the SARS-CoV-2 coronavirus and COVID-19 disease.
https://dre.pt/application/conteudo/153917285
Decree of the President of the Republic no. 6-B/2021, of January 13: Renews the declaration of a state of emergency, based on the verification of a public calamity situation.
https://dre.pt/application/conteudo/153917314
Assembly of the Republic Resolution no. 1-B/2021, of January 13: Modification of the declaration of a state of emergency and the authorisation of its renewal.
https://dre.pt/application/conteudo/153917315
Council of Ministers Resolution no. 3/2021, of January 14: Declares TAP, S.A., Portugália, S.A., and Cateringpor, S.A. in a difficult economic situation.
https://dre.pt/application/conteudo/153917309
Ordinance no. 15/2021, of January 14: a) Regulates the procedure for authorising the distribution and making available to the public of videograms, including video games, on a physical support medium; b) Approves the models for authorising the distribution and making available to the public of videograms, including video games, and their respective usage standards.
https://dre.pt/application/conteudo/153917310
Decree-Law no. 6-A/2021, of January 14: Amends the administrative offence regime in the context of the disaster, contingency and alert situation and aggravates the administrative offence relating to compulsory teleworking during the state of emergency.
https://dre.pt/application/conteudo/153959842
Decree no. 3-A/2021, of January 14: Regulates the modification and extension of the state of emergency made by the Decree of the President of the Republic no. 6-B/2021 of January 13.
https://dre.pt/application/conteudo/153959843
Ordinance no. 15-A/2021, of January 14: Fourth amendment to Ordinance no. 323/2017, of October 26, which lays down the rules for implementing the support scheme for restructuring and conversion of vineyards (VITIS) for the period 2019-2023.
https://dre.pt/application/conteudo/154200876
Regional Regulatory Decree no. 1-B/2021/A, of January 14: Regulates, in the Autonomous Region of the Azores, the implementation of the Decree of the President of the Republic no. 6-B/2021 of January 13, which renews the state of emergency.
https://dre.pt/application/conteudo/154200877
Council of Ministers Resolution no. 4/2021, of January 15: Authorises the issue of public debt, in execution of the State Budget for 2021.
https://dre.pt/application/conteudo/154193679
Decree-Law no. 6-B/2021, of January 15: Undertakes the third amendment to Decree-Law no. 14-C/2020, of April 7, which establishes the definition of procedures for the attribution of funding and compensation to essential transport operators, within the scope of the COVID-19 pandemic.
https://dre.pt/application/conteudo/154202309
Decree-Law no. 6-C/2021, of January 15: Undertakes: a) The third amendment to Decree-Law no. 10-G/2020, of March 26, which establishes an exceptional and temporary measure to protect jobs, within the scope of the COVID-19 pandemic; b) The fourth amendment to Decree-Law no. 46-A/2020, of July 30, which creates the extraordinary support for the progressive resumption of activity in companies in a situation of business crisis with a temporary reduction of the normal working period.
https://dre.pt/application/conteudo/154202310
Decree-Law no. 6-D/2021, of January 15: Undertakes: a) The extension of some articles of Law no. 1-A/2020, of 19 March, which establishes exceptional and temporary measures in response to the epidemiological situation caused by the SARS-CoV-2 coronavirus and the COVID-19 disease; b) The third amendment to Law no. 4-B/2020, of 6 April, which establishes an exceptional regime of compliance with the measures provided for in the Municipal Adjustment and Indebtedness Programmes of local authorities, in the context of the COVID-19 disease pandemic; c) The third amendment to Law no. 6/2020, of April 10, establishing an exceptional regime to promote the response capacity of local authorities within the scope of the COVID-19 pandemic; d) The twenty-sixth amendment to Decree Law no. 10-A/2020, of March 13, in its current wording, establishing exceptional and temporary measures regarding the epidemiological situation of the new coronavirus – COVID-19.
https://dre.pt/application/conteudo/154202311
Decree-Law no. 6-E/2021, of January 15: Creates extraordinary measures to support workers and economic activity, taxpayers, the cultural sector, consumers, and commerce, in the context of the state of emergency.
https://dre.pt/application/conteudo/154361179
Ordinance no. 15-B/2021, of January 15: Undertakes the first amendment to the Regulations of the APOIAR Programme, approved in annex to Ordinance no. 271-A/2020, of November 24, of which it is an integral part.
https://dre.pt/application/conteudo/154361181
Declaration of Rectification no. 2/2021, of January 18: Rectifies Ordinance no. 8/2021, of January 7, that approves the templates intended for the declarative obligation provided for in the Article 57 (1) of Personal Income Tax and its fulfilment instructions, published in the “Diário da República”, 1st series, no. 4, of 7 January 2021.
https://dre.pt/application/conteudo/154356479
Council of Ministers Resolution no. 5/2021, of January 19: Approves the pilot project model on prior evaluation of the legislative impact on climate action.
https://dre.pt/application/conteudo/154513235
Decree no. 3-B/2021, of January 19: Amends the regulation of the state of emergency decreed by the President of the Republic.
https://dre.pt/application/conteudo/154483156
Declaration of Rectification no. 3/2021, of January 21: Rectifies the Decree-Law no. 102-D/2020, of December 10, of the Environment and Climate Action, that approves the general waste management scheme, the legal regime for landfilling waste, and amends the regime for the management of specific waste streams, transposing the (EU) Directives 2018/849, 2018/850, 2018/851 and 2018/852.
https://dre.pt/application/conteudo/154820684
Decree-Law no. 8-A/2021, of January 22: Amends the national and administrative offence liability regime in the context of the situation of calamity, contingency and alarm and sets out the national administrative offence liability regime imposed by the state of emergency.
https://dre.pt/application/conteudo/154946851
Decree-Law no. 8-B/2021, of January 22: Establishes a set of support measures in the area of suspension of in-person and non-schooling activities.
https://dre.pt/application/conteudo/154946852
Decree no. 3-C/2021, of January 22: Amends the regulation of the state of emergency enacted by the President of the Republic.
https://dre.pt/application/conteudo/154946853
Regional Regulatory Decree no. n.º 1-C/2021/A, of January 22: Regulates, in the Autonomous Region of the Azores, the terms of the application of Decree of the President of the Republic no. 6-B/2021 of 13 January, which renews the state of emergency.
https://dre.pt/application/conteudo/155073561
Assembly of the Republic Resolution no. 4/2021, of January 25: Recommendation for the Government to prevent the risk of corruption during the pandemic.
https://dre.pt/application/conteudo/155084433
Ordinance no. 19-A/2021, of January 25: Regulates the procedures of extraordinary support allocation to the workers income, created with the aim of ensuring the income continuity of persons in particular economic unprotection, caused by the COVID-19 disease pandemic.
https://dre.pt/application/conteudo/155273784
Decree of the President of the Republic no. 9-A/2021, of January 28: Renewal of the state of emergency, based on the verification of a situation of public calamity.
https://dre.pt/application/conteudo/155737377
Assembly of the Republic Resolution no. 14-A/2021, of January 28: Authorization for the renewal of the state of emergency.
https://dre.pt/application/conteudo/155737378
Decree-Law no. 9/2021, of January 29: Approves the Legal Regime for Economic administrative offence liability.
https://dre.pt/application/conteudo/155732595
Decree no. 3-D/2021, of January 29: Regulates the state of emergency declared by the President of the Republic.
https://dre.pt/application/conteudo/155739190
1.3. CASE-LAW
1.3.1. Court of Justice of the European Union
Judgement of the Justice Court of January 14, Case C-393/19: Reference for a preliminary ruling. Article 17 of the Charter of Fundamental Rights of the European Union. Right to property. Article 47 of the Charter of Fundamental Rights. Right to an effective remedy. Framework Decision 2005/212/JHA. Confiscation of crime-related proceeds, instrumentalities and property. Directive 2014/42/EU. Freezing and confiscation of instrumentalities and proceeds of crime in the European Union. National legislation providing for the confiscation, for the benefit of the State, of property used to commit the offence of smuggling. Property belonging to a third party acting in good faith.
Summary:
“1. Article 2(1) of Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property, read in the light of Article 17(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a national law which permits the confiscation of an instrumentality used to commit an aggravated smuggling offence where that property belongs to a third party acting in good faith.
2. Article 4 of Framework Decision 2005/212/JHA, read in the light of Article 47 of the Charter of Fundamental Rights, must be interpreted as precluding a national law which permits the confiscation, in the context of criminal proceedings, of property belonging to a person other than the person who committed the criminal offence, without the former being afforded an effective remedy.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0393
Judgement of the Justice Court of January 20, Case C-288/19: Reference for a preliminary ruling. Taxation. Value added tax (VAT). Directive 2006/112/EC. Article 2(1)(c). Supplies of services for consideration. Article 26(1). Transactions treated as supplies of services for consideration. Article 56(2). Determination of the point of reference for tax purposes. Hiring of means of transport. Making cars available to employees.
Summary:
“On a proper construction of the first subparagraph of Article 56(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2008/8/EC of 12 February 2008, the act of making a vehicle forming part of the assets of the business of a taxable person available to one of that taxable person’s employees does not fall within the scope of that provision if that transaction does not constitute a supply of services for consideration within the meaning of Article 2(1)(c) of that directive. By contrast, the first subparagraph of Article 56(2) of Directive 2006/112 does apply to such a transaction if it involves a supply of services for consideration within the meaning of Article 2(1)(c) of that directive and if that employee has a permanent right to use that vehicle for private purposes and to exclude other persons from using it, in exchange for rent and for an agreed period of more than 30 days.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0288
Judgement of the Justice Court of January 20, Case C-484/19: Reference for a preliminary ruling. Article 49 TFEU. Freedom of establishment. Corporation tax. Taxation of associated companies. National tax legislation prohibiting a company which is established in one Member State from deducting interest paid to a company established in another Member State, belonging to the same group of companies, in the case where a substantial tax benefit is gained.
Summary:
“Article 49 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that a company established in one Member State is not permitted to deduct interest payments made to a company belonging to the same group, established in another Member State, on the ground that the principal reason for the debt linking them appears to be the obtaining of a substantial tax benefit, whereas such a tax benefit would not have been deemed to exist if both companies had been established in the first Member State, as in that situation they would have been covered by the provisions on intra-group financial transfers.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0484
Judgement of the Justice Court of January 20, Case C-655/19: Reference for a preliminary ruling. Taxation. Value added tax (VAT). Directive 2006/112/EC. Article 2. Article 9. Notions of “economic activity” and “taxable person”. Transactions intended to withdraw from a revenue having a permanent nature. Acquisition by a creditor of buildings seized within the framework of a compulsory execution procedure initiated for the recovery of loans accompanied by mortgage guarantees and sale of these buildings. Simple exercise of the right of ownership by its holder.
Summary:
“Article 2 (1) (a) and Article 9 (1) of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax, must be interpreted in the sense that the operation by which a person is awarded a building seized within the framework of a compulsory execution procedure initiated for the recovery of a loan previously granted and, subsequently, proceeds to the sale of this building does not constitute, in itself, an economic activity when this operation comes under the simple exercise of the right of ownership as well as of the good management of the private patrimony, so that the said person cannot, under the said operation, be considered as a taxable person.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0655
The Constitutional Court was asked for a clarification regarding the submission of the members of the Council for the Prevention of Corruption to the declaratory duties established in Law no. 52/2019, of 31 July.
The Constitutional Court ruled, in conclusion, “that the members of the Council for the Prevention of Corruption are not obliged to submit the single declaration of income, assets, interests, incompatibilities and impediments provided for in article 13, no. 1 of Law no. 52/2019, of 31 July.”.
https://www.tribunalconstitucional.pt/tc/acordaos/20210025.html
Judgement of the Porto Court of Appeal of January 12, Case no. 19639/18.1T8PRT.P1: Leasing. Contract prior to RAU. Transition to the new RAU. Communication requirements.
Summary:
“I – If the landlord’s letter communicating the transition to the NRAU has been received by someone other than the tenant to whom it was addressed, the communication will only be effective if the landlord sends a new registered letter with acknowledgement of receipt between 30 and 60 days after the first letter was sent.
II – For housing leases entered into prior to the NRAU, the possibility of termination ad nutum (Article 28 (2) of the NRAU) does not apply.”.
Judgement of the Évora Court of Appeal of January 14, Case no. 2479/20.5T8STR-A.E1: Suspension of company resolutions. Considerable damage.
Summary:
“The allegation, by the applicant of the injunction to suspend the corporate resolution, of the consequences foreseen by law for the case of non-compliance with the corporate duties to approve, in due time, the annual accounts, to dispose of the results of the financial year and to elect its managing bodies periodically – and which are precisely intended to be avoided with the requested injunction – already constitutes the invocation of the appreciable damage required for the decree of the injunction.”.
Judgement of the Évora Court of Appeal of January 14, Case no. 352/20.6T8STR-D.E1: Insolvency administrator. Removal. Just cause.
Summary:
“I – The doctrinal concept of “just cause” for insolvency proceedings, more specifically for the interpretation of Article 56 (1) of the CIRE, shall include all conduct of the Insolvency Administrator likely to jeopardize the relationship of trust with the judge in charge of the proceedings and with the creditors, hindering or making unfeasible the objective or purpose of the proceedings, set out in Article 1 of the CIRE.
II – Constitutes “just cause” for his dismissal, the Insolvency Administrator not having requested any consent from the meeting of creditors for the liquidation acts underway, who, for unknown reasons, opted to use the services of an auctioneer (whose contract was not attached), without informing the Court under the terms of art. For unknown reasons, it opted to use the services of an auctioneer (whose contract was not attached), without notifying the Court under the terms of article 55 (3) of the CIRE, instead of the legally imposed electronic auction, considering that this would better protect the interests of creditors and that it did not hear the guaranteed creditors as to the form of sale, nor as to the terms thereof.”.
1.3.4. Administrative and Tax Courts
Judgement of the Supreme Administrative Court of January 13, Case no. 02402/14.6BESNT: Tax execution reversion. Prior hearing. Nullity. Reversion order.
Summary:
“Article 23 (4) of the LGT imposes that the reversal of the tax execution be preceded by a hearing of the subsidiary responsible.
As the case-law of this Supreme Administrative Court has established, the omission of that right to be heard constitutes a violation of a procedural legal rule, to which corresponds the invalidity of the act (in this case the reversion order).”.
Monographs and Periodic Publications
João Ricardo Catarino, Vasco Branco Guimarães (Coord.), Lições de Fiscalidade – Princípios Gerais e Fiscalidade Interna, 7.ª Edição, Almedina, janeiro 2021
António Pinto Monteiro, Contrato de Agência, 9.ª Edição, Almedina, janeiro 2021
Salvador da Costa, A Injunção e as Conexas Ação e Execução, Almedina, janeiro 2021
Luís Manuel Teles de Menezes Leitão, Direito da Insolvência, 10.ª Edição, Almedina, janeiro 2021
Paulo de Tarso Domingues, O Financiamento Societário pelos Sócios (e o seu Reverso), Almedina, janeiro 2021
Isabel Mousinho de Figueiredo, Responsabilidade do Supervisor – Indemnização Devida por Fiscais e Auditores, Almedina, janeiro 2021
Maria Clara Sottomayor, Regulação do Exercício das Responsabilidades Parentais nos Casos de Divórcio, 7.ª Edição, Almedina, janeiro 2021
1.4.2. Generic Guidelines & Cia
Circulate letter no. 30230, of 05.01.2021, of Deputy-General Director of VAT Management Area
Subject: VAT – State Budget 2021; amendments to the VAT code and complementary legislation.
Circulate letter no. 15807, de 07.01.2021, of 07.01.2021, of Deputy-General Director of Customs tax management services
Subject: Trade and cooperation agreement between EU/ United Kingdom.
Circulate letter no. 20227/2021, of 13.01.2021, of Deputy-General Director of Income Tax and International Affairs
Subject: Pensions paid in 2017 or 2018 but reported to previous years – application of the alternative tax system provided in the Article 74 (3) of the Personal Income Tax Code.
Circulate letter no. 15810, de 15.01.2021 of Deputy-General Director of Deputy-General Director of Customs tax management services
Subject: guide about the status of approved exporter under the REX system.
Circulate letter no. 30231, of 28.01.2021, of Deputy-General Director of VAT Management Area
Subject: VAT – exemption of imports of intra-community goods transfers. Conditions exemption application – addition to the circulate letters no. 30218 and no. 30225, of February 3 and October 2, respectively.
Economy, Finance and Taxation
The Council of Ministers approved, on January 28, the Decree that proceeds to a set of amends about the legal measures that regulate the extension of the state of emergency made under the Decree of the President of the Republic.
The Decree shall enter into force on January 31, 2021, at 12AM, and remains into force until February 14, 2021, 11:59PM.
Among the approved amendments, we would highlight the following:
- The suspension of educational activities, of public, private, and cooperative schools and of the social and solidarity sector, pre-school education and primary and secondary education in force until February 5, 2021, these activities are resumed, from February 8, 2011, from distance.
- The travel limitation from mainland by Portuguese citizens, carried out by any means, namely road, rail, air, waterway, or sea.
- The replenishment of border control, on land borders, in accordance with the provisions of the Decree;
- The possibility of the flight’s suspension and the mandatory quarantine of passengers on arrival, when the epidemiological situation demands it;
- The possibility of the health care providers of the National Health Services, being exceptionally able to hire under a fixed-term contract up to a year limit, of academic degrees holders conferred by a foreign higher education institution in medicine and in the nursing area.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=398
On 1 January 2021 Portugal took over the rotating Presidency of the Council of the European Union (EU) for the fourth time. During the Portuguese Presidency of the Council of the European Union (PPEU), it will be up to the National Institute of Industrial Property (INPI) to continue the work developed by previous presidencies in matters such as Design, Enforcement, the Unified Patent Court, Supplementary Protection Certificates and Geographical Indications, with special attention to issues directly related to Small and Medium Enterprises (SMEs). On the agenda of PPUE 2021, the High Level Conference on Intellectual Property and the Digital Transition, entitled “The metamorphosis of Intellectual Property in the Age of the Digital Transition” is scheduled to take place on 11 February.
https://inpi.justica.gov.pt/Noticias-do-INPI/Presidencia-do-Conselho-da-Uniao-Europeia
A 20 million support fund (Ideas Powered for Business SME Fund) was launched on 18 December 2020, providing vouchers for Small and Medium-sized Enterprises (SMEs) based in the European Union to access and benefit from their Intellectual Property (IP) rights. The fund offers financial support in the form of reimbursements for trademark and design applications up to a maximum amount of €1,500 per company. Applications opened from 11 January 2021, starting with the first of five funding windows that will run throughout 2021. Applications from all EU companies that meet the official SME definition are admissible.
https://inpi.justica.gov.pt/Noticias-do-INPI/Lancamento-do-Fundo-para-as-PME
Enrolments are still open until 15.02.2021 for the European Patent Law Training Course, 2021-2022 edition, scheduled to start in the first quarter of 2021. The course is organised between CEIPI – Centre d’Études Internationales de la Propriété Intellectuelle (Centre for International Studies in Intellectual Property) and EPI (Institute of Professional Representatives Before the EPO), and will continue to be held in Lisbon, in collaboration with INPI.
https://inpi.justica.gov.pt/Noticias-do-INPI/Formacao-de-Base-Direito-Europeu-de-Patentes-do-CEIPI
As part of the containment measures to combat the pandemic, and the new state of emergency, the National Institute of Industrial Property (INPI) will give priority to digital services, namely by telephone, email or online (online booking).
https://inpi.justica.gov.pt/Noticias-do-INPI/INPI-Atendimento-online-por-marcacao-digital
The Statute “Innovative” (Inovadora) is an initiative promoted by COTEC Portugal, which brings new advantages to companies that realise their innovation potential in profitable growth and financial robustness, through a seal of reputation created by COTEC Portugal to distinguish national companies with a high innovation performance. COTEC’s “Innovative” (Inovadora) Statute was presented through an event that took place in digital format on 28 January.
https://inpi.justica.gov.pt/Noticias-do-INPI/Estatuto-Inovadora-COTEC
E-LEGAL® NEWSLETTER – FEBRUARY 2021
2.1. EDITORIAL – EXCEPTIONAL REGIME OF CONTRACTS FOR THE EXPLOITATION OF REAL ESTATE FOR COMMERCE AND SERVICES IN SHOPPING CENTRES; REGIME OF SUSPENSION OF JUDICIAL AND PROCEDURAL TIME LIMITS
The month of February was characterised, in legislative terms, by the approval and publication of Law no. 4-A/2021, of February 1, which clarified the exceptional regime applicable to contracts for the exploitation of real estate for commerce and services in shopping centres, through an interpretative rule of Law no. 2/2020, of March 31. On the other hand, it is worth highlighting Law no. 4-B/2021, of February 1, which established a regime of suspension of judicial and procedural time limits arising from measures adopted within the scope of the COVID-19 disease pandemic, amending Law no. 1-A/2020, of March 19.
It is also worth highlighting, on a legislative level, the following:
I) Law no. 4-C/2021, of February 17, which established a VAT exemption applicable to the transmissions of medical devices for in vitro diagnosis of COVID-19, to vaccines against the same disease and to the provision of services related to these products, transposing Council Directive (EU) 2020/2020, of 7 December 2020;
II) Law no. 7/2021, of February 26, which strengthened the guarantees for taxpayers and simplified procedures, amending the General Tax Law (LGT), the Code of Tax Procedure and Proceedings (CPPT), the General Regime of Tax Infractions (RGIT) and other legislative acts.
Concerning case-law, it is noteworthy the Judgement of the Constitutional Court no. 101/2021 of February 4, Case no. 1238/17, which decided to judge unconstitutional “for violation of the prohibition to create taxes with retroactive nature, set out in Article 103(3) of the Constitution of the Portuguese Republic the rule of article 135 of Law no. 7-A/2016, of March 30, in the part in which it attributes an interpretative nature to the new wording given to article 51(6) of the IRC Code by article 133 of that same Law.”.
In its turn, it is also noteworthy the Judgement of the Constitutional Court no. 100/2021 of February 4, Case no. 140/2017, which decided to judge unconstitutional “the rule resulting from the combination of articles 400(1)(e) and 432(1)(b), both of the Code of Criminal Procedure, in the wording introduced by Law no. 20/2013, of February 21, in the interpretation according to which it is not admissible to appeal, to the Supreme Court of Justice, judgments handed down in appeal, by the Relations, which, innovatively in the face of acquittal in the first instance, condemn the accused to a prison sentence not exceeding five years, suspended in its execution, for violation of Article 32, no. 1, of the Constitution.”.
Finally, in Miscellaneous, highlight goes to the approval by the Council of Ministers, on February 25, of the resolution approving the final version of the “Programa Internacionalizar 2030” and, on the other hand, to the approval of the decree-law that determines the ownership of the broadcasting rights of the 1st and 2nd League football championships and establishes the rules regarding their commercialisation.
Decree-Law no. 10/2021, of February 1: Establishes the update of the remuneration base of the Public Administration and the value of the monetary amounts corresponding to levels 5, 6 and 7 of the Single Remuneration Table («TRU»), approved by Ordinance no. 1553-C/2008, of December 31.
https://dre.pt/application/conteudo/155938993
Law no. 4-A/2021, of February 1: Clarifies the exceptional regime applicable to contracts for the exploitation of real estate for commerce and services in shopping centres, through an interpretative rule of Law no. 2/2020, of March 31.
https://dre.pt/application/conteudo/156125155
Law no. 4-B/2021, of February 1: Establishes a regime of suspension of judicial and procedural time limits due to the measures adopted in the scope of the COVID-19 disease pandemic, amending Law no. 1-A/2020, of March 19.
https://dre.pt/application/conteudo/156125156
Ordinance no. 26/2021, of February 2: Establishes the percentage of the amounts charged for each service in Citizen Spaces («EC») that constitutes revenue for the respective managing body.
https://dre.pt/application/conteudo/155939070
Ordinance no. 26-A/2021, of February 2: Undertakes the first 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, an exceptional regime for situations of delay in the payment of rents due to the epidemiological situation caused by the SARS-CoV-2 coronavirus and the COVID-19 disease, the terms under which the demonstration of the loss of income is made for the purposes 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.
https://dre.pt/application/conteudo/156252085
Assembly of the Republic Resolution no. 37-A/2021, of February 2: Approves the Decision (EU, Euratom) 2020/2053 of the Council, of 14 December 2020 on the system of own resources of the European Union and repealing Decision 2014/335/EU, Euratom.
https://dre.pt/application/conteudo/156296213
Decree-Law no. 10-A/2021, of February 2: Establishes exceptional mechanisms for the management of health professionals to carry out assistance activities, within the scope of the COVID-19 disease pandemic, in the health services and establishments of the National Health Service («SNS»).
https://dre.pt/application/conteudo/156296214
Council of Ministers Resolution no. 8-A/2021, of February 3: Approves the Long-Term Strategy for Building Renovation.
https://dre.pt/application/conteudo/156295372
Decree-Law no. 10-B/2021, of February 4: Establishes exceptional and temporary measures in the area of education, in the context of the COVID-19 disease pandemic, for 2021.
https://dre.pt/application/conteudo/156546167
Ordinance no. 27/2021, of February 5: Undertakes the fourth amendment to the general regulation of the Fund for European Aid to the Most Deprived Persons and to the specific regulation of the Operational Programme to Support the Most Deprived Persons in Portugal.
https://dre.pt/application/conteudo/156547110
Regional Regulatory Decree no. 1-E/2021/A, of February 5: Regulates the application, in the Autonomous Region of the Azores, of the Decree of the President of the Republic no. 9-A/2021, of January 28.
https://dre.pt/application/conteudo/156711998
Decree-Law no. 11/2021, of February 8: Produces the extension of the social benefit for inclusion to people whose incapacity results from an accident that occurred within the scope of duties related to protection and rescue missions providing for the accumulation with the informal caregiver subsidy and payment to a legal person in whose institution care is provided to a person with disability.
https://dre.pt/application/conteudo/156720777
Ordinance no. 28/2021, of February 8: Determines the extraordinary, temporary and transitional measures for the social and solidarity sector, with a view to supporting private social solidarity institutions, social solidarity cooperatives, non-governmental organisations for the disabled and similar organisations in the operation of social responses.
https://dre.pt/application/conteudo/156720778
Decree-Law no. 12/2021, of February 9: a) Ensures the implementation in the national legal system of Regulation (EU) 910/2014, on electronic identification and trust services for electronic transactions in the internal market; b) Regulates the validity, effectiveness and probative value of electronic documents, the recognition and acceptance, in the Portuguese legal order, of the means of electronic identification of natural and legal persons and provides the rules applicable to the State Electronic Certification System – Public Key Infrastructure («SECS»).
https://dre.pt/application/conteudo/156848060
Ordinance no. 29/2021, of February 9: Creates the National Housing Council, as a consulting body of the Government in the area of national housing policy.
https://dre.pt/application/conteudo/156848062
Council of Ministers Resolution no. 8-C/2021, of February 9: Authorises the Regional Health Administrations and the entities within their scope to incur in expenses with the acquisition of vaccines and tuberculin, within the scope of the National Vaccination Programme 2021.
https://dre.pt/application/conteudo/156872597
Official Map no. 1-A/2021, of February 9: Official map with the results of the election for President of the Republic held on 24 January 2021.
https://dre.pt/application/conteudo/156971146
Declaration no. 2-A/2021, of February 9: Election of Judge Counsellor João Pedro Barrosa Caupers as President of the Constitutional Court and Judge Counsellor Pedro Manuel Pena Chancerelle de Machete as Vice-President.
https://dre.pt/application/conteudo/156974198
Decree-Law no. 13/2021, of February 10: Creates the National Medicines Laboratory (LM) and approves its statute.
https://dre.pt/application/conteudo/156974201
Ordinance no. 30/2021, of February 10: Determines the conditions of access to the land area of the island of Berlenga, the respective management model and control and supervision mechanisms.
https://dre.pt/application/conteudo/156974204
Ordinance no. 31/2021, of February 10: Approves declaration model 39 (income and withholdings at flat rates), aimed at fulfilling the declaratory obligation referred to in paragraph b) of no. 12 of article 119 of the Personal Income Tax Code.
https://dre.pt/application/conteudo/156974205
Ordinance no. 32/2021, of February 10: Regulation of the accreditation process for municipal technicians responsible for assessing projects and self-protection measures and for carrying out inspections and surveys of the fire safety conditions in buildings (SCIE) of buildings and enclosures classified in the 1st risk category.
https://dre.pt/application/conteudo/156974206
Assembly of the Republic Resolution no. 63/2021, of February 11: Approves the Protocol on the Privileges and Immunities of the Unified Patent Court, made in Brussels on 29 June 2016.
https://dre.pt/application/conteudo/157116187
Ordinance no. 33/2021, of February 11: Makes the tenth amendment to Ordinance no. 57/2015, of February 27, which approved the implementing regulations for the basic payment scheme, the payment for agricultural practices beneficial for the climate and the environment (greening), the payment for young farmers, the specific payment for cotton and the small farming scheme.
https://dre.pt/application/conteudo/157116188
Decree of the President of the Republic no. 11-A/2021, of February 11: Renews the declaration of a state of emergency, based on the verification of a public calamity situation.
https://dre.pt/application/conteudo/157236766
Assembly of the Republic Resolution no. 63-A/2021, of February 11: Authorisation for renewal of the state of emergency.
https://dre.pt/application/conteudo/157236767
Assembly of the Republic Resolution no. 64/2021, of February 12: Approves the Convention on the Suppression of Unlawful Acts in Connection with International Civil Aviation, adopted in Beijing on 10 September 2010.
https://dre.pt/application/conteudo/157236755
Decree-Law no. 14/2021, of February 12: Amends the legal regime for the entry, stay, exit and removal of foreigners from national territory.
https://dre.pt/application/conteudo/157236756
Ordinance no. 34/2021, of February 12: Approves the monthly remuneration statement – AT (Tax Authority), and the respective instructions for completing it, for compliance with the reporting obligation referred to in sub-paragraph i) of paragraph c) and paragraph d) of no. 1 of Article 119 of the IRS (Personal Income Tax) Code.
https://dre.pt/application/conteudo/157236757
Ordinance no. 35/2021, of February 12: Sets the value of the “health and food safety plus tax” for the year 2021.
https://dre.pt/application/conteudo/154193679
Regional Regulatory Decree no. 1-F/2021/A, of February 12: Regulates, in the Autonomous Region of the Azores, the application of the Decree of the President of the Republic no. 11-A/2021, of February 11, which renews the state of emergency.
https://dre.pt/application/conteudo/157397585
Decree-Law no. 14-A/2021, of February 12: Establishes exceptional and temporary measures concerning the electronic communications sector in the context of the pandemic of the COVID-19 disease.
https://dre.pt/application/conteudo/157397590
Decree no. 3-E/2021, of February 12: Regulates the extension of the state of emergency effected by the Decree of the President of the Republic no. 11-A/2021, of February 11. https://dre.pt/application/conteudo/157397591
Assembly of the Republic Resolution no. 65/2021, of February 15: Approves the Agreement between the Republic of Portugal and the Republic of Paraguay on the Transfer of Sentenced Persons, signed in Lisbon on 11 May 2017.
https://dre.pt/application/conteudo/157362795
Ordinance no. 37/2021, of February 15: Provides for the amendment to the recognition and maintenance of the Informal Caregiver Statute.
https://dre.pt/application/conteudo/157362797
Ordinance no. 37-A/2021, of February 15: Approves the Regulation on Cultural Support Measures in the context of response to the pandemic disease COVID-19.
https://dre.pt/application/conteudo/157397604
Declaration no. 2-B/2021, of February 15: Declaration of resignation presented by Judge Counsellor Manuel da Costa Andrade.
https://dre.pt/application/conteudo/157575583
Ordinance no. 38/2021, of February 16: Approves the creation of carbon taxes on sea and air travels, as compensation for the emission of pollutant gases and other negative environmental externalities caused by these forms of transportation, and determines the conditions of its application.
https://dre.pt/application/conteudo/157567893
Law no. 4-C/2021, of February 17: a) Transposes Directive (EU) 2020/2020 of December 7, 2020 amending Directive 2006/112/EC regarding temporary value added tax (VAT) measures applied to vaccines against COVID-19 and medical devices for in vitro diagnosis of this disease in response to the COVID-19 pandemic; b) Establishes, with temporary effect, a VAT exemption for supplies of medical devices for in vitro diagnosis of COVID-19 and vaccines against the same disease, as well as for services closely related to these products.
https://dre.pt/application/conteudo/157772254
Law no. 5/2021, of February 19: Establishes an extraordinary period of voluntary delivery of unexpressed or registered firearms.
https://dre.pt/application/conteudo/157996084
Law no. 6/2021, of February 19: Extends the deadline for proof of safe keeping by firearms holders, provided for in Law no. 50/2019, of July 24.
https://dre.pt/application/conteudo/157996085
Ordinance no. 39/2021, of February 22: Sets the technical specifications for the marker of professional diesel used to supply eligible vehicles in private consumption facilities, as well as the mandatory concentration to be used in the marking, identifies the entity with exclusive competence for the respective supply and establishes the rules for the marking procedure.
https://dre.pt/application/conteudo/158052099
Ordinance no. 40/2021, of February 22: Modifies the regulations regarding the registration of applications for the Accessible Renting Programme.
https://dre.pt/application/conteudo/158052100
Ordinance no. 41/2021, of February 22: Modifies the regulations of Support Programme for Access to Housing.
https://dre.pt/application/conteudo/158052101
Ordinance no. 42/2021, of February 22: Modifies the regulations regarding the registration of housing in the Accessible Renting Programme.
https://dre.pt/application/conteudo/158052102
Decree-Law no. 14-B/2021, of February 22: It proceeds with the first amendment to Decree-Law no. 8-B/2021, of January 22, which establishes a set of support measures within the scope of the suspension of school activities and non-teaching presence.
https://dre.pt/application/conteudo/158054819
Regulatory Decree no. 1-A/2021, of February 22: Defines and regulates the extraordinary update of pensions established in article 75 of Law no. 75-B/2020, of December 31, which approves the State Budget for 2021.
https://dre.pt/application/conteudo/158054820
Decree-Law no. 15/2021, of February 23: Establishes a special regime applicable to expropriation and the creation of administrative easements in order to implement interventions that are considered, by order of the member of the Government responsible for the sector of activity in which the intervention in question falls, to be integrated within the scope of the Economic and Social Stabilisation Programme, approved in annex to Council of Ministers Resolution no. 41/2020, of June 6 (PEES).
https://dre.pt/application/conteudo/158146138
Ordinance no. 43/2021, of February 23: Proceeds to the ninth amendment to the Regulation establishing Common Rules on the European Social Fund.
https://dre.pt/application/conteudo/158146139
Ordinance no. 44/2021, of February 23: Amends the regulations of the programme that establishes the “Porta de Entrada – Programa de Apoio ao Alojamento Urgente” (Urgent Accommodation Support Programme).
https://dre.pt/application/conteudo/158146140
Declaration of Rectification no. 6/2021, of February 24: Rectification Declaration to Law no. 75-B/2020, of December 31, “State Budget for 2021”, published in the Diário da República, 1st Series, no. 253, supplement, of December 31 of 2020.
https://dre.pt/application/conteudo/158238384
Decree-Law no. 16/2021, of February 24: Amends the multi-municipal systems for the collecting, treatment and rejection of effluents and introduces measures regarding the generation and recovery of deviations from recovery of certain expenses.
https://dre.pt/application/conteudo/158238385
Ordinance no. 45/2021, of February 24: Establishes the price definition regime and the responsibility in the distribution and assumption of costs by the different entities involved and sets the respective prices for health, mental health and social support care provided in the units and teams of the National Network for Integrated Continued Care (RNCCI).
https://dre.pt/application/conteudo/158238387
Decree-Law no. 16-A/2021, of February 25: Amends the protection regime in case of invalidity and old age for beneficiaries of the general social security regime.
https://dre.pt/application/conteudo/158316443
Decree of the President of the Republic no. 21-A/2021, of February 25: Renews the declaration of a state of emergency, based on the verification of a public calamity situation.
https://dre.pt/application/conteudo/158368125
Assembly of the Republic Resolution no. 69-A/2021, of February 25: Authorization of the renewal of the state of emergency.
https://dre.pt/application/conteudo/158368126
Law no. 7/2021, of February 26: It reinforces taxpayer guarantees and procedural simplification, amending the General Tax Law, the Code of Tax Procedure and Process, the General Regime of Tax Infractions and other legislative acts.
https://dre.pt/application/conteudo/158368130
Ordinance no. 45-A/2021, of February 26: First amendment to Order no. 298/2020, of December 23, which establishes the rules for the extension of agri-environmental commitments in 2021.
https://dre.pt/application/conteudo/158398971
Regional Regulatory Decree no. 2-A/2021/A, of February 26: Regulates the application, in the Autonomous Region of the Azores, of the Decree of the President of the Republic no. 21-A/2021, of February 25.
https://dre.pt/application/conteudo/158480688
Decree no. 3-F/2021, of February 26: Regulates the state of emergency as declared by the President of the Republic.
https://dre.pt/application/conteudo/158507655
2.3.1. Court of Justice of the European Union
Judgement of the Justice Court of February 2, Case C-481/19: Reference for a preliminary ruling. Approximation of laws. Directive 2003/6/EC. Article 14(3). Regulation (EU) No 596/2014. Article 30(1)(b). Market abuse. Administrative sanctions of a criminal nature. Failure to cooperate with the competent authorities. Articles 47 and 48 of the Charter of Fundamental Rights of the European Union. Right to remain silent and to avoid self-incrimination.
Summary:
“Article 14(3) of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) and Article 30(1)(b) of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6 and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, read in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, must be interpreted as allowing Member States not to penalise natural persons who, in an investigation carried out in respect of them by the competent authority under that directive or that regulation, refuse to provide that authority with answers that are capable of establishing their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0481
Judgement of the Justice Court of February 24, Case C-95/19: Reference for a preliminary ruling. Directive 76/308/EEC. Articles 6 and 8 and Article 12(1) to (3). Mutual assistance for the recovery of certain claims. Excise duty payable in two Member States for the same transactions. Directive 92/12/EC. Articles 6 and 20. Release of products for consumption. Falsification of the accompanying administrative document. Offence or irregularity committed in the course of movement of products subject to excise duty under a duty suspension arrangement. Irregular departure of products from a suspension arrangement. ‘Duplication of the tax claim’ relating to the excise duties. Review carried out by the courts of the Member State in which the requested authority is situated. Refusal of the request for assistance made by the competent authorities of another Member State. Conditions.
Summary:
“Article 12(3) of Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures, as amended by Council Directive 2001/44/EC of 15 June 2001, read in conjunction with Article 20 of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1), as amended by Council Directive 92/108/EEC of 14 December must be interpreted as meaning that, in the context of an action disputing enforcement measures taken in the Member State in which the requested authority is situated, the competent body of that Member State may refuse to grant the request to recover excise duties submitted by the competent authority of another Member State in respect of goods which irregularly departed from a suspension arrangement, for the purposes of Article 6(1) of Directive 92/12, where that request is based on the facts relating to the same export transactions which are already subject to excise duty recovery in the Member State in which the requested authority is situated.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0095
Judgement of the Constitutional Court no. 100/2021 of February 4, Case no. 140/2017:
The Constitutional Court decided:
“a) To judge unconstitutional the rule resulting from the combination of articles 400, no. 1, paragraph e) and 432, no. 1, paragraph b), both of the Code of Criminal Procedure, in the wording introduced by Law no. 20/2013, of February 21, in the interpretation according to which an appeal to the Supreme Court of Justice is not admissible against judgements delivered on appeal, by the Courts of Appeal, which, innovatively in view of the acquittal in the first instance, sentence the defendant to a prison sentence not exceeding five years, suspended in its execution, for violation of Article 32, no. 1 of the Constitution.
b) Uphold the appeal and order the reform of the decision appealed against, in accordance with the present judgment of unconstitutionality.”.
https://www.tribunalconstitucional.pt/tc/acordaos/20210100.html
Judgement of the Constitutional Court no. 101/2021 of February 4, Case no. 1238/17:
The Constitutional Court decided:
“a) To deem unconstitutional, for violation of the prohibition of creating taxes with a retroactive nature, set forth in article 103, no. 3, of the Constitution, the rule of article 135 of Law no. 7-A/2016, of March 30, in the part in which it attributes an interpretative nature to the new wording given to article 51, no. 6 of the Corporate Income Tax Code by article 133 of that same Law; and, consequently,
b) Dismiss the appeals brought by the Autoridade Tributária e Aduaneira and by the Ministério Público.”.
https://www.tribunalconstitucional.pt/tc/acordaos/20210101.html
Judgement of the Constitutional Court no. 102/2021 of February 4, Case no. 1465/2017:
The Constitutional Court decided:
“a) To deem unconstitutional the rule resulting from article 400, no. 1, paragraph e), of the Code of Criminal Procedure, in the interpretation according to which it is not admissible to appeal, to the Supreme Court of Justice, judgments rendered in appeal, by the Courts of Appeal, which, reversing partial acquittal decision rendered by the 1st instance, aggravate, without exceeding the limit of five years, the unitary prison sentence.
b) To uphold the appeal and order the reform of the contested decision, in accordance with the present judgment of unconstitutionality.“.
https://www.tribunalconstitucional.pt/tc/acordaos/20210102.html
Judgement of the Lisbon Court of Appeal, of February 4, Case no. 11259/18.7 T8SNT.L1-6: Special action for division of common property. Mortgage creditor. Counterclaim. Instalments.
Summary:
“1- The mortgage creditor in relation to the loan for the acquisition of the property subject to special proceedings for division of the common property does not have legal standing to intervene in the declaratory phase of this action, his intervention being compulsory only in the eventual case of sale of the property in the enforcement phase, as the rules established for enforcement proceedings are applicable to the sale of property in special proceedings.
2- In the action of division of common property, the counterclaim is admissible in order to take into account the payments of the instalments of the bank loan made by the defendant for the acquisition of the property subject to division, with a view to its adjudication, bearing in mind that although the claims in the action and in the counterclaim follow different procedural forms, there is relevant interest for the joint examination of the claims, which appears to be indispensable for the fair composition of the litigation, and it should be determined that the case will follow the terms of the common process under the terms of articles 37 (2) and (3) and 926 (3) of the CPC. “.
Judgement of the Lisbon Court of Appeal, of February 9, Case no. 233/20.3T8VFX.L1-1: Public limited company. Dominant company. Supervening total control. Extinctive deliberation.
Summary:
“1 – In order to ascertain a situation of supervening total domination under the terms of the provisions of article 489 of the CSC, because the law establishes as a criterion that the controlling company “totally dominates another company, as there are no other partners”, own shareholdings or self-shareholdings are not counted.
2 – In the case of supervening total domination, the group relationship is formed with the acquisition of total domination, in accordance with the provisions of article 489 (3) of the CSC.
3 – Even if an abrogating interpretation of article 489 (3) of the CSC is considered, the group relation is formed whenever, none of the deliberations foreseen in paragraphs a) and b) of (2) of article 489 of the CSC occur, 6 months after the acquisition of total domain.
4 – The resolutions foreseen in paragraph 2 of art. 489 of the CSC are subject to mandatory registration and shall not produce effects in relation to third parties prior to the respective registration.
5 – The lapse of the six-month period provided for in paragraph 2 and the final part of paragraph 1 of art. 489 of the CSC without registration of any extinctive resolution, resulting from an authentic document attached to the records, can and should be evaluated by the court, considering the provisions of art. 11 of the CIRE, even if not alleged by any of the parties.
6 – The burden of alleging and proving a resolution that extinguishes the group relationship, taken under the terms of paragraphs a) and b) of (2) and the final part of (1 )of art. 489 of the CSC, belongs to the defendant, as it is a matter of peremptory exception.”.
Judgement of the Lisbon Court of Appeal, of February 11, Case no. 955/20.9YLPRT.L1-2: Special eviction procedure.
Summary:
“I – The acts to be practised by the judge in the special eviction proceedings are urgent, although the proceedings are not qualified as urgent.
II – Special eviction proceedings shall be suspended during the period in which the exceptional and transitory regime in response to the SARS-CoV-2 epidemic is in force; however, this suspension is not automatic as it depends on whether or not the tenant, by virtue of the final judicial decision to be pronounced, may be placed in a situation of fragility due to the lack of adequate housing or for other imperative social reasons.
III – Which may only be assessed by the court if raised by the party that has an interest therein, in this case, the tenant.
IV – Insofar as the court, before the question is put to it, does not have elements to know whether the judicial decision to be handed down is likely to place the tenant in a situation of frailty and, therefore, suspend the proceedings.
V – Thus, special eviction proceedings must not be suspended before the tenant raises the question that the final decision to be handed down is likely to place him in a situation of fragility due to lack of his own housing or for another imperative social reason.”.
2.3.4. Administrative and Tax Courts
Judgement of the Supreme Administrative Court, of February 17, Case no. 0164/13.3BEALM: Capital gains. Reinvestment. Owner-occupied housing. Permanent residence.
Summary:
“I – The concept of reinvestment underlying Article 10 (5) is an “economic concept” and, therefore, what is essential is to prove that “the proceeds of the disposal obtained in the onerous transfer of property intended for the dwelling of the taxpayer or his household are reinvested in the acquisition of another property intended for the same purpose”.
II – As the law expressly allows for the reinvestment to consist of the acquisition of “land for the construction of a property and/or the respective construction” and for this acquisition and construction “to take place between 24 months before and 36 months after the date on which it takes place”, it is logical and reasonable that during the period between the sale of the “initial property” and the obtaining (acquisition of the land and construction) of the “final property” the family unit should reside in another dwelling, either rented or owned.
III – The necessary interspersed residence does not constitute an interruption of the causal link between the “real estate of departure” and the “real estate of arrival” which prevents the normative provision of the exemption set out in Article 10 (5) of the CIRS from being fulfilled, provided that the factuality is reducible to a reasonable and plausible life situation, assessed on a case-by-case basis.”.
Judgement of the Supreme Administrative Court, of February 17, Case no. 01400/13.1BELRA 0375/18: Reform of judgment. Relationship of preliminary rulings. Authority of res judicata.
Summary:
“Having been decided, in an action for recognition of rights in tax matters, that the taxable person was entitled to be taxed by the organised accounting regime in a given year and that decision having become res judicata, the appeal against the decision that upheld the judicial challenge to the assessment for that year, supported by the classification of the taxable person under the simplified taxation regime, must be dismissed.”.
Monographs and Periodic Publications
José Augusto Mouteira Guerreiro, Atuais e Dissonantes Temas de Registo Predial, Almedina, fevereiro 2021
Fernando Gama Lobo, Droga, 2.ª Edição, Almedina, fevereiro 2021
Carlos Ferreira de Almeida, Contratos II – Conteúdo, Contratos de Troca, 5.ª Edição, Almedina, fevereiro 2021
Jorge Manuel Coutinho de Abreu, Curso de Direito Comercial – Volume 2, 7.ª Edição, Almedina, fevereiro 2021
Susana Aires de Sousa, Os Crimes Fiscais – Análise Dogmática e Reflexão Sobre a Legitimidade do Discurso Criminalizador, Almedina, fevereiro 2021
António Menezes Cordeiro, Código Civil Comentado – Volume 2: Das Obrigações em Geral, Almedina, fevereiro 2021
Maria João Antunes, Direito Processual Penal, 3.ª Edição, Almedina, fevereiro 2021
Salvador da Costa, Apoio Judiciário, 10.ª Edição, Almedina, fevereiro 2021
Ana Prata, Contratos de Adesão e Cláusulas Contratuais Gerais, 2.ª Edição, Almedina, fevereiro 2021
Luís Couto Gonçalves, Código da Propriedade Industrial – Anotado, Almedina, fevereiro 2021
Isabel Celeste M. Fonseca (Coordenação), Estudos de E. Governação, Transparência e Proteção de Dados, Almedina, fevereiro 2021
Sérgio Coimbra Henriques, A Crise Empresarial Enquanto Situação de Pré-Insolvência, Almedina, fevereiro 2021
Mário Aroso de Almeida, A Anulação de Actos Administrativos no Contexto das Relações Jurídico-Administrativas, Almedina, fevereiro 2021
Glória Teixeira, Glossário Fiscal, Almedina, fevereiro 2021
Catarina Serra, Lições de Direito da Insolvência, 2.ª Edição, Almedina, fevereiro 2021
2.4.2. Generic Guidelines & Cia
Circulate Letter no. 20228, of 03.02.2021, by order of the Deputy Director-General for IR and International Relations
Subject: Amendments to the Model 10 Declaration.
Order no. 42/2021-XXII, of 12.02.2021, by order of the Deputy Secretary of State and Tax Affairs
Subject: Monthly Stamp Duty Declaration (DMIS).
Order no. 43/2021-XXII, of 15.02.2021, by order of the Deputy Secretary of State and Tax Affairs
Subject: Extension of deadlines.
Circulate Letter no. 20229, of 16.02.2021, by order of the Deputy Director-General for IR and International Relations
Subject: IRC – Rates of municipal tax levied on taxable income for the 2020 tax period.
Circulate Letter no. 30232, of 17.02.2021, by order of the Subdirector General of the Tax Management Area-IVA
Subject: IVA – Amendment to the deadlines for filing the Periodic Declaration and payment of the respective tax, set out in Circulate Letter no. 30227, of November 10 of 2020.
Order no. 52/2021-XXII, of 25.02.2021, by order of the Deputy Secretary of State and Tax Affairs
Subject: A more flexible tax calendar within the framework of the principle of mutual collaboration between the Tax Administration and citizens and businesses.
Circulate Letter no. 20230, of 26.02.2021, by order of the Deputy Director-General of the Directorate of Personal Income Tax
Subject: Amendments to Model 25, Model 39 and Model DMR Declarations.
Economy, Finance and Taxation
The Council of Ministers approved, on February 25th, the resolution that approves the final version of the “Programa Internacionalizar 2030”, which in its turn establishes as priorities and objectives for the internationalization of the Portuguese economy:
- the promotion of exports of goods and services;
- the increase in the number of exporters;
- the diversification of export markets;
- the increase in the volume of foreign direct investment;
- and strengthening Portuguese direct investment abroad and national added value.
The Council of Ministers also approved, on the same date, the decree-law that determines the ownership of the transmission rights of the football championships of the I and II Leagues and establishes rules regarding its commercialization, seeking to promote a greater balance in the sector.
Therefore, television and multimedia broadcasting rights for the sports seasons following the 2027/2028 season will be the object of centralised marketing, without prejudice to the possibility of sports agents and operators reaching an agreement at an earlier date, subject to approval by the Competition Authority.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=402
The 32nd edition of the Technological Surveillance Bulletin (“BVT Energias Oceânicas“), published within the scope of the Iberian project between the Portuguese Industrial Property Institute (INPI) and the Spanish Patent and Trademark Office (OEPM), is now available. The purpose of this publication is to provide quarterly updates on the latest news and publications of international (PCT) and European (EP) patent applications in the technical field of ocean energy.
https://inpi.justica.gov.pt/Noticias-do-INPI/32%C2%AA-edicao-do-BVT-Oceanicas-ja-esta-disponivel
After 10 years classified as a Moderate Innovator, according to the European Innovation Scoreboard (EIS), Portugal joins the group of Strong Innovators for the first time in 2020, appearing in 12th place among the most innovative countries of the European Union (EU). The favourable environment for innovation and the attractive research systems are pointed out as the main factors that place Portugal at the forefront in this area, having been one of the countries that most improved its performance between 2012 and 2019.
The European Union Intellectual Property Office (EUIPO) and the European Patent Office (EPO) have published a joint report entitled “Intellectual Property Rights and business performance in the EU” which analysed the role of Intellectual Property rights at the business level, examining over 127,000 companies, from all 28 member states, as of 1 January 2020.
The report found that companies that own Intellectual Property rights generate 20% more revenue than their competitors that do not own any IP assets and also that companies that own these IP assets pay, on average, 19% higher wages than those that do not own IP rights.
INPI has become a partner of WIPO GREEN, an online platform of the World Intellectual Property Organization (WIPO) that promotes innovation and diffusion of green technologies. WIPO GREEN is a marketplace for sustainable technologies, aimed at encouraging innovation and diffusion of environment-related technologies, bringing together technology suppliers with technology seekers and offering a series of services to encourage mutually beneficial commercial transactions.
https://inpi.justica.gov.pt/en-gb/INPI-News/INPI-joins-WIPO-GREEN
The High Level Conference on Industrial Property under the theme “The Metamorphosis of Intellectual Property in the Age of Digital Transition” took place on 11 February. More than 800 people participated and 1255 registered.
https://inpi.justica.gov.pt/en-gb/INPI-News/High-Level-Conference-Considerations
The new application round for the SME (Small and Medium-Sized Enterprises) Support Fund, launched by the EUIPO and the European Commission to encourage SME’s to use Industrial Property, starts on 1 March. The Fund is open to all EU companies falling under the official SME definition and offers financial support in the form of reimbursements for trademark and design applications, up to a maximum amount of €1,500 per company. The 2nd funding window will close on 31 March.
https://inpi.justica.gov.pt/Noticias-do-INPI/Candidaturas-ao-Fundo-europeu-para-as-PME
The annual meeting of public sector representatives from the 27 EU Member States, on Intellectual Property, promoted by the EUIPO Observatory, was held on February 23. As Portugal holds the Presidency of the Council of the European Union, the President of INPI’s Board of Directors made a speech during the opening session on the Priorities of the Portuguese Presidency in the field of Intellectual Property, focusing on the various initiatives planned in this area and Portugal’s commitment to combat counterfeiting and piracy.
INPI was present in the Seminar “The Process of Nullity and Revocation of the Mark“, held within the scope of the Master in Intellectual Property and Digital Innovation (Magister Lvcentinvs) taught by the University of Alicante. INPI’s interventions took place within the panel on “National Institutes Perspectives“. The Seminar had as main objective to deepen the procedures set out in the Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015, specifically the revocation and nullity of registered trademarks.
E-LEGAL® NEWSLETTER – MARCH 2021
3.1. EDITORIAL – EXCEPTIONAL SUSPENSION OF COLLECTIVE LABOUR AGREEMENT SUBSISTENCE TERMS; EXTENSION OF THE TERMS OF EXCEPTIONAL AND TEMPORARY MEASURES; EXCEPTIONAL AND TEMPORARY REGIME FOR OBLIGATIONS AND TAX DEBTS AND SOCIAL SECURITY CONTRIBUTIONS
The month of March was characterised, in legislative terms, by the approval and publication, on the one hand, of Law no. 11/2021, of March 9, which exceptionally suspended the terms of subsistence of the collective labour agreement and, on the other hand, of Decree-Law no. 22-A/2021, of March 17, which, within the scope of the COVID-19 disease pandemic, established new exceptional and temporary measures and extended the terms of the exceptional and temporary measures already established.
On the legislative sphere, reference should also be made to:
I) Decree-Law no. 22-C/2021, of March 22, which extended the grace periods on public sector guaranteed loans and approved a special scheme for the provision of guarantees by the Mutual Counter-Guarantee Fund, within the scope of the COVID-19 disease pandemic;
II) Decree-Law no. 23-A/2021, of March 24, which established support measures for workers and companies, within the scope of the COVID-19 disease pandemic;
III) Decree-Law no. 24/2021, of March 26, which established an exceptional and temporary regime regarding tax obligations and debts and social security contributions.
In the scope of case law, we highlight the Judgement of the Constitutional Court no. 123/2021 of 15 March, Case no. 173/2021, which decided, with reference to Decree no. 109/XIV of the Assembly of the Republic, sent to the President of the Republic for promulgation as law, and which regulates the special conditions under which the anticipation of medically assisted death is not punishable, amending the Criminal Code:
“a) To pronounce the unconstitutionality of the rule contained in its article 2, no. 1, on the grounds of violation of the principle of determinability of the law as a corollary of the principles of the democratic rule of law and of the reservation of parliamentary law, arising from the combined provisions of articles 2 and 165, no. 1, paragraph b), of the Constitution of the Portuguese Republic, by reference to the inviolability of human life enshrined in article 24, no. 1, of the same normative; and, consequently
b) To pronounce on the unconstitutionality of the norms contained in articles 4, 5, 7 and 27 of the same Decree.”
Finally, in Miscellaneous, it is worth highlighting the approval by the Council of Ministers, on 25 March, of the decree-law, subsequently published as Decree-Law no. 25-A/2021, of 30 March, which extends the exceptional and transitory regime of work reorganisation and minimisation of risks of transmission of the COVID-19 disease within the scope of labour relations.
Law no. 8/2021, of March 1: Authorises the Government to approve the system of sanctions applicable to the violation of the provisions of Council Regulation (EC) No. 2271/96 of 22 November 1996, regarding protection against the effects of the extra-territorial application of legislation adopted by a third country, and against measures based thereon or resulting therefrom.
https://dre.pt/application/conteudo/158507583
Regional Legislative Decree no. 2/2021/A, of March 1: Deferral of the obligation to return outstanding instalments related to the refundable incentive granted under the “Competir+” and “SIDER” incentive schemes.
https://dre.pt/application/conteudo/158507584
Regional Legislative Decree no. 3/2021/A, of March 1: Suspends, until 31 December 2021, the Regional Legislative Decree no. 25/2020/A, of 14 October, which created the System for Collection and Management of Cadastral Information.
https://dre.pt/application/conteudo/158507585
Ordinance no. 45-B/2021, of March 1: Undertakes the first amendment to Ordinance no. 178-B/2016, of July 1, which establishes the procedures, model and other conditions necessary for the application of the social tariff for the supply of electricity to economically vulnerable customers.
https://dre.pt/application/conteudo/158545440
Law no. 9/2021, of March 2: Undertakes the second amendment to Decree-Law no. 45/2019, of April 1, which approves the organic structure of the National Authority for Emergency and Civil Protection, extending the composition of the National Firefighters Council to the participation of the Portuguese Association of Volunteer Firefighters.
https://dre.pt/application/conteudo/158545433
Ordinance no. 46/2021, of March 2: Amends Ordinance no. 285/2017, of September 28, which regulates the forms of delivery of the Citizen’s Card and the respective activation codes, the personal code (PIN) and the personal code for unlocking (PUK), to citizens residing abroad, as well as the security conditions required for such delivery and sets the associated fees.
https://dre.pt/application/conteudo/158545434
Ordinance no. 47/2021, of March 2: Establishes the exceptional and temporary measures in response to the pandemic caused by the COVID-19 disease in the context of financial support allocated to youth associations in the year 2021 regarding: a) The financial support programmes for youth associations, created by Ordinance no. 1230/2006 of November 15, amended by Ordinance no. 286/2020 of December 14; b) The Formar+ Programme, created by Ordinance no. 382/2017 of December 20.
https://dre.pt/application/conteudo/158545435
Decree-Law no. 17/2021, of March 3: Undertakes the first amendment to Decree-Law no. 51/2019, of April 17, which regulates the enhancement and promotion of the “Caminho de Santiago”, through the certification of its itineraries.
https://dre.pt/application/conteudo/158698040
Ordinance no. 48/2021, of March 4: Establishes the procedures for bringing forward European funds for budgetary inscription and for taking on multiannual charges.
https://dre.pt/application/conteudo/158772231
Ordinance no. 49/2021, of March 4: Undertakes the eighth amendment to Ordinance no. 31/2015, of February 12, and the third amendment to Ordinance no. 118/2018, of April 30, of the Continent Rural Development Programme (PDR2020).
https://dre.pt/application/conteudo/158772232
Law no. 10/2021, of March 5: Confers to the Agency for Development and Cohesion, I. P. (Agency, I. P.) the possibility of requesting from the Tax and Customs Authority (AT) information on data in its possession, for the purpose of verifying the specific access requirements to the support measure named “Apoiar Rendas“, under the scope of the APOIAR Programme.
https://dre.pt/application/conteudo/158903595
Ordinance no. 50/2021, of March 5: Approves the model of declaration of the extraordinary contribution on the suppliers of the National Health Service (SNS) of medical devices and in vitro diagnostic medical devices and their accessories (model 56) and respective filling instructions, to be in force from the year 2021.
https://dre.pt/application/conteudo/158903600
Legislative Assembly of the Azores Autonomous Region Resolution no. 10/2021/A, of March 5: Exemptions from fees, tariffs and licences at port and airport facilities.
https://dre.pt/application/conteudo/158903602
Assembly of the Republic Resolution no. 72/2021, of March 8: Approves for accession the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations, concluded in Vienna on 21 March 1986.
https://dre.pt/application/conteudo/158991606
Regulatory Decree no. 1/2021, of March 8: Establishes the universe of taxpayers of personal income tax covered by the automatic declaration of income, in accordance with the provisions of paragraph 8 of Article 58-A of the Personal Income Tax Code (IRS Code).
https://dre.pt/application/conteudo/158991607
Legislative Assembly of the Azores Autonomous Region Resolution no. 11/2021/A, of March 8: Approves the Budget of the Legislative Assembly of the Autonomous Region of the Azores for the year 2021.
https://dre.pt/application/conteudo/158991610
Law no. 11/2021, of March 9: Provides for the exceptional suspension of the time limits for the subsistence of a collective labour agreement, under the terms foreseen in article 501 of the Labour Code.
https://dre.pt/application/conteudo/159087819
Ordinance no. 52/2021, of March 9: Establishes the differentiated levels of access to information registered on the National Portal for State Suppliers (Portal), referred to in Article 5(6) of Decree-Law no. 72/2018, of September 12, depending on whether its recipients are public entities, companies managing electronic public procurement platforms, suppliers, supervisory bodies or citizens in general.
https://dre.pt/application/conteudo/159087822
Law no. 12/2021, of March 10: Undertakes the first amendment to Decree-Law no. 81/2020, of October 2, which adapts the instruments created within the scope of the New Generation of Housing Policies and the Organic Law of the IHRU, I. P., to the Basic Housing Law, within the scope of the Economic and Social Stabilisation Programme.
https://dre.pt/application/conteudo/159174076
Ordinance no. 53/2021, of March 10: Establishes the normal age of access to the old age pension of the general social security regime in 2022.
https://dre.pt/application/conteudo/159174081
Ordinance no. 54/2021, of March 10: Establishes an exceptional incentive for the recovery of face-to-face consultations in primary health care, regulating the provisions of no. 1 of article 277 of Law no. 75-B/2020, of December 31.
https://dre.pt/application/conteudo/159174082
Ordinance no. 55/2021, of March 11: Establishes rules on the evaluation criteria and procedures to be observed in the selection and ranking of applications for tenders under the Promotion Plan for Efficiency in Energy Consumption (PPEC), and revokes Ordinance no. 26/2013 of January 24.
https://dre.pt/application/conteudo/159219301
Assembly of the Republic Resolution no. 77-B/2021, of March 11: Authorisation for renewal of the state of emergency.
https://dre.pt/application/conteudo/159304331
Decree-Law no. 18/2021, of March 12: Undertakes the first amendment to Decree-Law no. 15/2020, of 15 April, which creates a credit line with subsidised interest rates for fishing sector operators.
https://dre.pt/application/conteudo/159304335
Ordinance no. 56/2021, of March 12: Establishes an exceptional and temporary regime for the self-testing of rapid antigen tests, intended by their manufacturers to be performed on samples from the anterior internal nasal area.
https://dre.pt/application/conteudo/159304338
Ordinance no. 57/2021, of March 12: Defines the production and trade regime for wines and other grape and wine products entitled to the Protected Designations of Origin (PDO) “Alenquer“, “Arruda“, “Torres Vedras“, “Bucelas“, “Carcavelos“, “Colares“, “Encostas d’Aire“, including the indication of the sub-regions of “Alcobaça” and “Ourém“, through the designation of “Medieval de Ourém“, “Lourinhã” and “Óbidos“, maintaining their recognition.
https://dre.pt/application/conteudo/159304339
Regional Regulatory Decree no. 2-B/2021/A, of March 12: Regulates the application, in the Autonomous Region of the Azores, of the Decree of the President of the Republic no. 25-A/2021, of March 11.
https://dre.pt/application/conteudo/159432400
Decree no. 4/2021, of March 13: a) Regulates the renewal of the state of emergency carried out by Decree of the President of the Republic no. 25-A/2021, of March 11; b) Amends the regulations on the renewal of the state of emergency carried out by Decree of the President of the Republic no. 21-A/2021, of February 25.
https://dre.pt/application/conteudo/159432418
Council of Ministers Resolution no. 19/2021, of March 13: Establishes a strategy for the lifting of containment measures in the framework of the fight against the pandemic disease COVID-19.
https://dre.pt/application/conteudo/159432419
Decree-Law no. 19/2021, of March 15: a) Amends the education and training model within the Public Administration; b) Creates the «Instituto Nacional de Administração, I. P.» (INA, I. P.), and approves its respective statutes, which are annexed to this decree-law and are an integral part of it; c) Extinguishes the General Directorate for the Qualification of Workers in Public Functions (DGQTFP); d) Produces the eighth amendment to Decree-Law no. 117/2011, of December 15, which approves the Organic Law of the Ministry of Finance.
https://dre.pt/application/conteudo/159432382
Decree-Law no. 20/2021, of March 15: Approves the organic structure of the General Secretariat of the Presidency of the Council of Ministers.
https://dre.pt/application/conteudo/159432383
Decree-Law no. 21/2021, of March 15: Approves the organic structure of the Competencies Centre for Planning, Policy and Foresight of the Public Administration.
https://dre.pt/application/conteudo/159432384
Decree-Law no. 22/2021, of March 15: Approves the Organic Law of the Inspectorate-General of Internal Administration.
https://dre.pt/application/conteudo/159432385
Ordinance no. 58/2021, of March 16: Approves the model of the monthly global statement referred to in paragraph a) of no. 11 of article 28 of the VAT Code, as well as the respective instructions for completion.
https://dre.pt/application/conteudo/159539837
Ordinance no. 59/2021, of March 16: Makes the fourth amendment to the Regulations on Harvest Insurance and Claims Compensation, hereinafter referred to as the Regulations, approved in annex to Ordinance no. 65/2014, of March 12.
https://dre.pt/application/conteudo/159539838
Decree-Law no. 22-A/2021, of March 17: It extends deadlines and establishes exceptional and temporary measures in the framework of the pandemic disease COVID-19.
https://dre.pt/application/conteudo/159707135
Ordinance no. 62/2021, of March 17: Establishes the requirements of the civil liability insurance contract arising from the activity of providing trust services.
https://dre.pt/application/conteudo/159614839
Ordinance no. 67-A/2021, of March 17: Defines the terms for the attribution of the extraordinary risk subsidy to combat the pandemic disease COVID-19, provided for in article 291 of Law no. 75-B/2020, of December 31.
https://dre.pt/application/conteudo/159707136
Order no. 3046-A/2021, of March 19: It sets limits on the marketing of certain products.
https://dre.pt/application/conteudo/159869079
Order no. 3046-B/2021, of March 19: It defines the measures applicable to passengers on flights originating in South Africa who have stopped over or transited through countries for which air traffic to Portugal is authorised.
https://dre.pt/application/conteudo/159869083
Council of Ministers Resolution no. 20/2021, of March 19: Approves the Internationalisation 2030 Programme.
https://dre.pt/application/conteudo/159792487
Assembly of the Republic Resolution no. 82/2021, of March 19: Approves the Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Japan, of the other part, signed in Tokyo on 17 July 2018.
https://dre.pt/application/conteudo/159792482
Council of Ministers Resolution no. 26/2021, of March 22: Approves the Investment Plan for the Forest Territories under Management of the Institute for Nature Conservation and Forests, I. P., and authorises the respective expenditure.
https://dre.pt/application/conteudo/159841268
Decree-Law no. 22-B/2021, of March 22: Determines the ownership of broadcasting rights of the football championships of the I and II Leagues and establishes rules regarding their commercialisation.
https://dre.pt/application/conteudo/159869156
Decree-Law no. 22-C/2021, of March 22: Extends the grace periods on public sector guaranteed loans and approves a special regime for the granting of guarantees by the Mutual Counter-guarantee Fund, within the framework of the COVID-19 disease pandemic.
https://data.dre.pt/application/conteudo/159869157
Decree-Law no. 22-D/2021, of March 22: Undertakes the first amendment to Decree-Law no. 10-B/2021, of February 4, which establishes exceptional and temporary measures in the area of education, within the scope of the COVID-19 disease pandemic for 2021.
https://dre.pt/application/conteudo/159869158
Council of Ministers Resolution no. 30/2021, of March 23: Authorises the granting of a personal State guarantee under the Portugal-Angola Convention.
https://dre.pt/application/conteudo/159993991
Ordinance no. 68/2021, of March 24: Approves the percentages of the exchange rate correction mechanism created by Decree-Law no. 35-B/2016, of June 30, for the second half of 2020.
https://dre.pt/application/conteudo/160076723
Ordinance no. 69/2021, of March 24: Defines the terms for granting the extraordinary risk subsidy to combat the pandemic disease COVID-19 and revokes Ordinance no.67-A/2021, of March 17.
https://dre.pt/application/conteudo/160076724
Decree-Law no. 23-A/2021, of March 24: Establishes support measures for workers and companies, in the context of the pandemic of the disease COVID-19.
https://dre.pt/application/conteudo/160149401
Resolution of the Council of Ministers no. 33-A/2021, of March 24: Establishes support measures in the framework of the pandemic disease COVID-19.
https://dre.pt/application/conteudo/160149402
Rectification Declaration no. 9-B/2021, of March 24: Rectifies Decree no. 4/2021, of March 13, of the Presidency of the Council of Ministers, which regulates the extension of the state of emergency decreed by the President of the Republic, published in the Official Gazette, 1st Series, no. 50-A, of March 13, 2021.
https://dre.pt/application/conteudo/160149403
Order no. 3191-B/2021, of March 24: Identifies the Protocols covered by the regime for extending grace periods on loans guaranteed by mutual guarantee companies or the Mutual Counter-Guarantee Fund.
https://dre.pt/application/conteudo/160154136
Ordinance no. 69-A/2021, of March 24: Amends the Regulations of the APOIAR Programme.
https://dre.pt/application/conteudo/160195066
Resolution of the Assembly of the Republic no. 90-A/2021, of March 25: Authorisation for renewal of the state of emergency.
https://dre.pt/application/conteudo/160316742
Decree of the President of the Republic no. 31-A/2021, of March 25: Renews the declaration of a state of emergency, based on the verification of a public calamity situation.
https://dre.pt/application/conteudo/160316741
Decree-Law no. 24/2021, of March 26: Establishes an exceptional and temporary regime regarding tax obligations and debts and social security contributions.
https://dre.pt/application/conteudo/160316757
Decree no. 5/2021, of March 28: Regulates the state of emergency decreed by the President of the Republic.
https://dre.pt/application/conteudo/160422311
Decree-Law no. 25/2021, of March 29: Amends the Legal Regime of Territorial Management Instruments.
https://dre.pt/application/conteudo/160422285
Decree-Law no. 25-A/2021, of March 30: Extends the exceptional and transitory regime of work reorganisation and minimisation of risks of COVID-19 disease transmission within the scope of labour relations.
https://dre.pt/application/conteudo/160534623
Decree-Law no. 25-B/2021, of March 30: Establishes a transitional regime for the recognition and exchange of UK driving licences.
https://dre.pt/application/conteudo/160534624
Decree-Law no. 26/2021, of March 31: Proceeds with: a) The creation of the National Urgent and Temporary Accommodation Stock (Housing Stock); b) The definition of the National Urgent and Temporary Accommodation Plan (National Accommodation Plan); c) The definition of the way in which the Urgent and Temporary Accommodation Inventory (Housing Inventory) is to be carried out; d) The definition of the modalities and conditions of support for the promotion of urgent and temporary accommodation solutions.
https://dre.pt/application/conteudo/160631105
Ordinance no. 75-A/2021, of March 31: Fixes the form of application of the net results of the 2019 financial year of the National Communications Authority.
https://dre.pt/application/conteudo/160627124
Regional Regulatory Decree no. 2-C/2021/A, of March 31: Regulates the application, in the Autonomous Region of the Azores, of the Decree of the President of the Republic no. 31-A/2021, of March 25.
https://dre.pt/application/conteudo/160627125
3.3.1. Court of Justice of the European Union
Judgement of the Justice Court of March 3, Case C-7/20: Reference for a preliminary ruling. Customs union. Union Customs Code. Regulation (EU) No 952/2013. Article 87(4). Place where the customs debt is incurred. Value added tax (VAT). Directive 2006/112/EC. Article 2(1). Articles 70 and 71. Chargeable event and place where the import VAT becomes chargeable. Place where the tax debt is incurred. Finding of a failure to comply with an obligation imposed by EU customs legislation. Goods which were physically introduced into the customs territory of the Union in a Member State but entered the economic network of the Union in the Member State where that finding was made.
Summary:
“The second subparagraph of Article 71(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that import VAT on goods subject to customs duties arises in the Member State in which it is established that an obligation imposed by EU customs legislation has not been complied with, where the goods in question, even if they have been physically introduced into the customs territory of the Union in another Member State, entered the economic network of the Union in the Member State where that finding was made.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62020CJ0007
Judgement of the Justice Court of March 4, Case C-581/19: Reference for a preliminary ruling. Taxation. Value added tax (VAT). Directive 2006/112/EC. Article 2(1)(c). Supplies subject to VAT. Exemptions. Article 132(1)(c). Provision of medical care in the exercise of the medical and paramedical professions. Nutrition monitoring and advice. Sports, physical well-being and fitness activities. Concepts of a single complex supply, a supply ancillary to the main supply, and independent supplies. Criteria.
Summary:
“Council Directive 2006/112 of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, subject to verification by the referring court, a nutrition monitoring service provided by a certified and authorised professional in sports facilities, potentially in the context of programmes that also include physical well-being and fitness services, constitutes a separate and independent supply of services and is not capable of falling under the exemption laid down in Article 132(1)(c) of that directive.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0581
Judgement of the Constitutional Court no. 123/2021 of March 15, Case no. 173/2021:
The Court has decided, with reference to Decree no. 109/XIV of the Assembly of the Republic, which regulates the special conditions under which the anticipation of medically assisted death is not punishable and amends the Penal Code, published in the Official Gazette of the Assembly of the Republic, Series II-A, number 76, of 12 February 2021, and sent to the President of the Republic for promulgation as law:
“a) To pronounce for the unconstitutionality of the rule contained in its article 2, paragraph 1, on the grounds of the violation of the principle of determinability of the law as a corollary of the principles of the democratic rule of law and of the reservation of parliamentary law, arising from the combined provisions of articles 2 and 165, paragraph 1(b), of the Constitution of the Portuguese Republic, by reference to the inviolability of human life enshrined in article 24, paragraph 1, of the same normative; and, consequently,
b) To pronounce for the unconstitutionality of the norms contained in articles 4, 5, 7 and 27 of the same Decree.”.
https://www.tribunalconstitucional.pt/tc/acordaos/20210123.html
Judgement of the Constitutional Court no. 173/2021 of March 24, Case no. 728/2020:
The Court has decided:
“a) To judge unconstitutional, for violation of the provisions of Article 165(1)(b) and (p) of the Constitution of the Portuguese Republic, the rule contained in paragraph 6 of the Resolution of the Council of the Government no. no. 207/2020, of July 31, 2020, issued by the Regional Government of the Autonomous Region of the Azores, which creates a procedure for judicial validation of mandatory quarantine or prophylactic isolation ordered by the regional health authority in relation to passengers disembarking at airports on the islands of Santa Maria, São Miguel, Terceira, Pico and Faial from airports located in areas considered by the World Health Organisation to be areas of active community transmission or with active chains of transmission of the SARS-CoV-2 virus.
b) Dismiss the present action, confirming the contested decision.”
http://www.tribunalconstitucional.pt/tc/acordaos/20210173.html
Judgement of the Guimarães Court of Appeal of March 4, Case no. 278/19.7T8BCL.G1: Extinction of company and/or closure of a business. Partner. Liquidator. Non-contractual liability.
Summary:
“I – After the winding up of the company, if there are still unpaid or unprovided for liabilities, the company creditors have two distinct protection regimes within their reach: the liability of the liquidators if the requirements of article 158, CSC are met, or the liability of the former shareholders if the requirements of article 163, CSC are met.
II – In both cases, it is up to the creditors to prove the respective assumptions, including the existence of assets that were shared or, in some way, received by the former shareholders who benefited from them to the detriment of the creditors.
III – The liability regime for “false declarations” of inexistence of liabilities or inexistence of assets drawn up in minutes by a shareholder and/or liquidator is based on extra-contractual civil liability for an illicit fact. Therefore, the creditor has to prove the assumptions constituting his right, namely: the fact, the illegality, the fault, the damage and the causal link between the illegality derived from the false declarations of non-existence of assets/liabilities and the damage of the creditor not receiving his credit.”.
Judgement of the Lisbon Court of Appeal of March 25, Case no. 3630/18.0T9OER-A.L1-2: Rendering of accounts. Obligation to provide information. Bank statements.
Summary:
“I) An action for the provision of accounts is primarily concerned with an obligation to provide information. The obligation to provide accounts is structurally an obligation to provide information, which exists whenever the holder of a right has reasonable doubt about its existence or content and another person is in a position to provide the necessary information (Article 573 of the Civil Code) and whose purpose is to establish the amount of revenue received and expenses incurred, in order to obtain the definition of a balance and to determine the credit or debit situation.
II) As the heir of the estate – in relation to whom the rendering of accounts is requested – has been, for several years, carrying out bank transactions, both with reference to personal accounts and to the account opened by him as administrator of the estate, it is of full relevance and pertinence to the cause, that he be notified to attach to the records the respective bank statements, for the period of time to which the obligation to render accounts of his administration relates.”.
3.3.4. Administrative and Tax Courts
Judgment of the Supreme Administrative Court, of March 10, Case no. 0997/12.8BEBRG 0182/18: Opposition to tax execution. Insolvency. Company recovery process. Prescription.
Summary:
“I – The Constitutional Court decided “to declare the unconstitutionality, with general mandatory force, of the rule of article 100 of the Insolvency and Corporate Recovery Code, approved by Decree-Law 53/2004, of 18 March, interpreted in the sense that the declaration of insolvency provided for therein suspends the limitation period for tax debts attributable to the subsidiary liable party within the scope of the tax proceedings, due to a violation of article 165(1)(i) of the Constitution of the Portuguese Republic”.
II – This judgment of unconstitutionality with generally binding force, even if formulated after the judgment has been handed down, is necessary, given that the declaration of unconstitutionality with generally binding force of a rule produces effect as from the entry into force of the rule declared unconstitutional (Article 282(1) of the CRP).”.
Judgement of South Administrative Central Court, of March 11, Case no. 1365/13.0BESNT: Share purchase option agreement. IRS. Category A income.
Summary:
“The compensation awarded by the employer to the employee under an agreement to waive the option to purchase shares of that employer constitutes taxable income in category A of IRS.”.
Monographs and Periodical Publications
Edgar Valles, Nacionalidade e Estrangeiros, Almedina, março 2021
Sérgio Vasques (Coord.), Cadernos IVA 2020, Almedina, março 2021
José Mouraz Lopes, Tiago Caiado Milheiro, Crimes Sexuais, Almedina, março 2021
Luís Menezes Leitão, Código da Insolvência e da Recuperação de Empresas – Anotado, 11.ª Edição, Almedina, março 2021
José Gaspar Schwalbach, Direito da Imigração, Almedina, março 2021
António Menezes Cordeiro, Tratado de Direito Civil – Livro 2, 5.ª Edição, Almedina, março 2021
João Paulo F. Remédio Marques, Direito Europeu das Patentes e Marcas, Almedina, março 2021
Alcides Martins, Código dos Regimes Contributivos e Legislação Complementar – Anotados, Almedina, março 2021
Fernando Sousa Magalhães, Estatuto da Ordem dos Advogados – Anotado e Comentado, 14.ª Edição, Almedina, março 2021
Mário Aroso de Almeida, Manual de Processo Administrativo, 5.ª Edição, Almedina, março 2021
Simão de Sant’ Ana, Vitorino Gouveia, O RGPD e os Recursos Humanos – Guia Prático para a Conformidade, Almedina, março 2021
Mário Aroso de Almeida, Teoria Geral do Direito Administrativo, 7.ª Edição, Almedina, março 2021
Jorge Manuel Coutinho de Abreu (Coord.), Código das Sociedades Comerciais em Comentário – Livro 7, 2.ª Edição, Almedina, março 2021
Alexandre de Soveral Martins, Um Curso de Direito de Insolvência – Livro 1, 3.ª Edição, Almedina, março 2021
3.4.2. Generic Guidelines & Cia
Circular no. 2, of 03.03.2021:
Subject: Wind Power Stations / Wind Power Stations and Solar Plants. Assessment and Taxation in IMI.
Order no. 72/2021-XXII, of 10.03.2021, by order of the Deputy Secretary of State and Tax Affairs
Subject: Tax Calendar 2020/2021: Adjustment – Invoices in PDF and DMR.
Circulate Letter no. 20231, of 12.03.2021, by order of the Deputy Director-General for IR and International Relations
Subject: IRS Form 3 Declaration in effect in 2021.
Order no. 90/2021-XXII, of 16.03.2021, by order of the Deputy Secretary of State and Tax Affairs
Subject: Flexibilization of the obligations laid down in Article 98 of the IRS Code, in Article 94 of the IRC Code and in Article 27, no. 1, a) of the VAT Code.
Circulate Letter no. 90032, of 22.03.2021, by order of the Deputy Director-General of the Collection Area of the Tax and Customs Authority
Subject: Electronic registration as a non-regular resident – no. 10 of article 16 of the IRS Code – Creation of new features.
Order no. 99/2021-XXII, of 26.03.2021, by order of the Deputy Secretary of State and Tax Affairs
Subject: Tax Calendar 2020/2021: Depreciations (flexibilization of the communication referred to in no. 5 of article 31-A of the IRC Code).
Economy, Finance and Taxation
The Council of Ministers approved, on 25 March, the decree-law that extends, until 31 December 2021, the exceptional and transitional regime of work reorganization and minimization of risks of transmission of the infection of COVID-19 disease in the context of labour relations, without prejudice to the possibility of additional extension after consultation with social partners.
The Council of Ministers also approved, on the same date, the decree-law establishing a transitional regime, in force until 31 December 2021, for the recognition and exchange of driving licences issued by the United Kingdom. This transitional regime allows the recognition of driving licences issued by the UK to citizens resident in Portugal under the same terms as driving licences issued by EU member states.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=410
WIPO’s annual publication – WIPO GREEN Year in Review – providing an overview of WIPO GREEN’s work in the green technology space, has been published, highlighting updates and statistics from WIPO GREEN’s online database, green technology success stories, as well as the multiple partnerships for climate-friendly innovation established in 2020.
https://inpi.justica.gov.pt/Noticias-do-INPI/WIPO-GREEN-Year-in-Review-2020
The World Intellectual Property Organization (WIPO) has published data on patent, trademark and industrial design applications filed at WIPO in 2020. In 2020, compared to 2019, the number of international patent applications filed (275,900 applications) grew by about 4%. On the other hand, the number of international trademark applications (63,800 applications) decreased by 0.6%, and a 15% decrease was also recorded for the number of applications (18,580 applications) for the registration of industrial designs.
https://inpi.justica.gov.pt/en-gb/INPI-News/WIPO-2020-Figures
Patent applications originating in Portugal with the European Patent Office (EPO) decreased by 8.5% in 2020, ending two consecutive years of sharp growth (+23.1% in 2019 and +47.3% in 2018), according to the 2020 Patent Index published by the EPO.
INPI’s Industrial Property Academy has made available its training catalogue for 2021, which foresees the implementation of 12 training courses organized in two main thematic areas: “Protection of Industrial Property” and “Guarantee and Valuation of Industrial Property”.
https://inpi.justica.gov.pt/Noticias-do-INPI/Catalogo-de-Formacao-2021
INPI joined Centromarca – Portuguese Association of Trademark Product Companies, which launched, for the third consecutive year, the ‘Journalism that Marks’ award, worth 2,500 euros, with the aim of recognising journalistic works that address important themes in the area of trademarks and their economic and social environment. Applications are open until April 9 and the winner of the award will be announced on April 26, on Intellectual Property Day.
https://inpi.justica.gov.pt/Noticias-do-INPI/Terceira-edicao-do-Premio-Jornalismo-que-Marca
The new phase (Window 2) of applications for the SME Support Fund – financial support from EUIPO and the Commission worth 20 million euros – closed at the end of this month. However, the project still foresees the opening of three more funding windows that will run throughout 2021.
https://inpi.justica.gov.pt/en-gb/INPI-News/Applications-to-the-European-SME-Fund
The National Innovation Agency (ANI) presented the 1st edition of the National Innovation Report, under the Strategy for Technological and Business Innovation 2018-2030. The Report, which will have a biennial periodicity, presents quantitative and qualitative information on the evolution of different areas of knowledge and innovation that are worked by public, private, horizontal and sectoral entities.
https://inpi.justica.gov.pt/Noticias-do-INPI/Primeira-edicao-do-Relatorio-Nacional-de-Inovacao
Applications for the 15th edition of the European Enterprise Promotion Awards (EEPA) are open until 10 May. This is an initiative of the European Commission that aims to distinguish activities identified as good practices in business promotion in various areas, according to the specificity of their contribution to development, economic growth and employment promotion.
E-LEGAL® NEWSLETTER – APRIL 2021
4.1. EDITORIAL – TERMINATION OF THE SUSPENSION OF JUDICIAL AND PROCEDURAL DEADLINES; EXTRAORDINARY INCOME SUPPORT FOR WORKERS AND FOR THE REDUCTION OF ECONOMIC ACTIVITY OF WORKERS; TAX CHANGES AND EXTRAORDINARY MEASURE ON DEADLINE COUNTING UNDER THE IRC
The month of April was characterised, in legislative terms, by the approval and publication, on the one hand, of Law no. 13-B/2021, of April 5, ending the regime of the suspension of judicial and procedural deadlines adopted in the context of the COVID-19 disease and, on the other hand, of Decree-Law no. 26-C/2021, of April 13, which, within the scope of the COVID-19 disease, has regulated extraordinary support for workers’ income and the extraordinary support for the reduction of the economic activity of workers.
On the legislative sphere, reference should also be made to:
I) Ordinance no. 85/2021, of April 16, which defined the activities of the tourism, culture, events and shows sectors, covered by the amendments introduced by Decree-Law no. 23-A/2021, of March 24, to Decree-Law no. 46-A/2020, of July 30, and Decree-Law no. 6-E/2021, of January 15;
II) Law no. 21/2021, of April 20, which amended the Statute of Tax Benefits, the Stamp Duty Code, the Investment Tax Code, the Vehicle Tax Code and the Single Circulation Tax Code, and created an extraordinary measure for calculating deadlines within the scope of the Corporate Income Tax (IRC).
In the scope of case law, we highlight the Judgment of the Justice Court of April 22, Case C-73/20, which clarified the interpretation to be given to Article 13 of Council Regulation (CE) no. 1346/2000 on insolvency proceedings and Article 12, 1, b) of Regulation (CE) no. 593/2008, on the law applicable to contractual obligations (Rome I), establishing that the law applicable to the contract under the latter regulation also applies to payment made by a third party in performance of the contractual obligation of one of the parties to the contract where, in the context of insolvency proceedings, that payment is contested as an act prejudicial to all the creditors.
Finally, in Miscellaneous, it is worth highlighting the approval by the Council of Ministers, on 29 April, the decree-law that creates an exceptional measure to compensate employers for the increase in the minimum monthly wage (RMMG) by granting a cash subsidy.
Ordinance no. 76/2021, of April 1: Establishes: a) the elements to be included in applications for production licenses and operating licenses for biomass power plants; b) the bidding procedure to be promoted by the Directorate-General for Energy and Geology (DGEG).
https://dre.pt/application/conteudo/160686627
Regional Regulatory Decree no. 3/2021/A, of April 1: Regulates the application, in the Autonomous Region of the Azores, of the Presidential Decree no. 31-A/2021, of March 25, providing for specific measures for the Easter period.
https://dre.pt/application/conteudo/160686628
Decree no. 6/2021, of April 3: Regulates the state of emergency decreed by the President of the Republic.
https://dre.pt/application/conteudo/160801889
Regional Legislative Decree no. 7/2021/A, of April 5: Undertakes the second amendment to Regional Legislative Decree no. 19/2011/A, of June 16, which regulates the activity of tourism information professionals in the Autonomous Region of the Azores.
https://dre.pt/application/conteudo/160769663
Regional Legislative Decree no. 8/2021/A, of April 5: Approves the Program of Support to Restaurants and Hotels for the Acquisition of Azorean Products.
https://dre.pt/application/conteudo/160769664
Regional Legislative Decree no. 9/2021/A, of April 5: Creates an Extraordinary Support Program for Private Media Organs.
https://dre.pt/application/conteudo/160769665
Law no. 13-A/2021, of April 5: Renews the transitory imposition of the obligation to wear masks in public spaces, extending, for the second time, the validity of Law no. 62-A/2020, of October 27.
https://dre.pt/application/conteudo/160772362
Law no. 13-B/2021, of April 5: Ceases the regime of suspension of judicial and procedural deadlines adopted within the scope of the COVID-19 disease pandemic, amending Law no. 1-A/2020, of 19 March.
https://dre.pt/application/conteudo/160893638
Decree-Law no. 26-A/2021, of April 5: Undertakes the fifth amendment to Decree-Law no. 10-I/2020, of 26 March, establishing exceptional and temporary measures in response to the COVID-19 disease pandemic in the cultural and artistic sphere, especially in relation to non-performed shows.
https://dre.pt/application/conteudo/160923378
Law no. 14/2021, of April 6: Transitory regime for the issue of the medical certificate of multi-purpose incapacity for cancer patients and the attribution of the corresponding social, economic and tax benefits foreseen by law, in the context of the COVID-19 disease pandemic.
https://dre.pt/application/conteudo/160893668
Council of Ministers Resolution no. 37/2021, of April 6: Approves the National Anti-Corruption Strategy 2020-2024.
https://dre.pt/application/conteudo/160893669
Ordinance no. 77/2021, of April 6: Establishes the regulatory norms for the distribution of the net operating results of social games assigned to the Ministry of Health, under the terms of Decree-Law no. 56/2006, of 15 March.
https://dre.pt/application/conteudo/160893670
Ordinance no. 78/2021, of April 6: Makes the first amendment to the Regulation on the Support Scheme for the Storage of Fishery Products.
https://dre.pt/application/conteudo/160893671
Law no. 15/2021, of April 7: Undertakes the second amendment, by parliamentary appreciation, to Decree-Law no. 6-E/2021, of January 15, which establishes support mechanisms within the scope of the state of emergency.
https://dre.pt/application/conteudo/160994171
Law no. 16/2021, of April 7: Amendment, by parliamentary appreciation, to Decree-Law no. 8-B/2021, of January 22, which establishes a set of support measures within the scope of the suspension of in-person teaching and non-teaching activities.
https://dre.pt/application/conteudo/160994172
Law no. 17/2021, of April 7: Amendment, by parliamentary appreciation, of Decree-Law no. 10-A/2021, February 2, establishing exceptional management mechanisms for health professionals to perform assistance activities, within the scope of the COVID-19 disease pandemic.
https://dre.pt/application/conteudo/160994173
Ordinance no. 79/2021, of April 7: Defines the criteria to be applied for the purpose of distributing to the municipalities the participation in the VAT revenue collected in the accommodation, catering, communications, electricity, water and gas sectors.
https://dre.pt/application/conteudo/161014477
Ordinance no. 80/2021, of April 7: Regulates the conditions and procedures related to the payment in instalments to the social security for the regularization of debts of contributions and levies.
https://dre.pt/application/conteudo/161014478
Ordinance no. 80-A/2021, of April 7: Makes the first amendment to the Regulation of Cultural Support Measures in the context of response to the pandemic disease COVID-19, approved in annex to the Ordinance no. 37-A/2021, of February 15.
https://dre.pt/application/conteudo/161056648
Law no. 18/2021, of April 8: Extends the legal regime applicable to the transfer of a company or establishment to situations of transfer by awarding of supply of services that are materialized by public tender, direct award or any other means, amending the Labour Code.
https://dre.pt/application/conteudo/161091058
Law no. 19/2021, of April 8: Defines the conditions for the accumulation of permanent disability benefits with the portion of remuneration earned by workers in the event of partial disability resulting from an accident or occupational disease, amending Decree-Law no. 503/99, of November 20, which approves the legal regime for accidents on duty and occupational diseases within the scope of the Public Administration.
https://dre.pt/application/conteudo/161091059
Ordinance no. 81/2021, of April 8: Establishes the regulatory norms necessary for the distribution of the net operating results of social games assigned to the Ministry of Labour, Solidarity and Social Security.
https://dre.pt/application/conteudo/161091061
Decree-Law no. 26-B/2021, of April 13: Clarifies the nature of social supports created as part of the response to the pandemic disease COVID19.
https://dre.pt/application/conteudo/161351312
Decree-Law no. 26-C/2021, of April 13: Regulates the extraordinary support for workers’ income, created by Law no. 75-B/2020, of December 31, and the extraordinary support for the reduction of the economic activity of workers, in accordance with the provisions of Decree-Law no. 6-E/2021, of January 15.
https://dre.pt/application/conteudo/161351313
Decree of the President of the Republic no. 41-A/2021, of April 14: Renews the declaration of a state of emergency, based on the verification of a public calamity situation.
https://dre.pt/application/conteudo/161433529
Assembly of the Republic Resolution no. 114-A/2021, of April 14: Authorization of the renewal of the state of emergency.
https://dre.pt/application/conteudo/161433530
Ordinance no. 83/2021, of April 15: Defines requirements and procedures for granting authorisations for the exercise of activities related to the cultivation, manufacture, wholesale trade, transport, circulation, import and export of medicines, preparations and substances based on the cannabis plant.
https://dre.pt/application/conteudo/161433504
Regional Regulatory Decree no. 3-A/2021/A, of April 15: Regulates the application, in the Autonomous Region of the Azores, of the Presidential Decree no. 41-A/2021, of April 14.
https://dre.pt/application/conteudo/161518649
Decree no. 6-A/2021, of April 15: Regulates the state of emergency decreed by the President of the Republic.
https://dre.pt/application/conteudo/161521806
Law no. 20/2021, of April 16: Amendments, by parliamentary appreciation, to Decree-Law no. 92/2020, of October 23, which amends the general regime for waste management, approved by Decree-Law no. 178/2006, of September 5.
https://dre.pt/application/conteudo/161518655
Ordinance no. 85/2021, of April 16: Defines the activities of the tourism, culture, events, and entertainment sectors, covered by the amendments introduced by Decree-Law no. 23-A/2021, of March 24, to Decree-Law no. 46-A/2020, of July 30, and Decree-Law no. 6-E/2021, of January 15.
https://dre.pt/application/conteudo/161518658
Ordinance no. 86/2021, of April 16: Regulates the activity of the Public Support System for Conciliation in Over-indebtedness (SISPACSE), created by Decree-Law no. 105/2020, of December 23, and establishes the rules on the registration, remuneration and training of conciliators to work in that System, as well as the organisation of the SISPACSE public lists.
https://dre.pt/application/conteudo/161518659
Decree no. 7/2021, of April 17: Regulates the state of emergency decreed by the President of the Republic.
https://dre.pt/application/conteudo/161663896
Ordinance no. 87/2021, of April 19: Determines that the Family and Minor Court of Maia will start operating.
https://dre.pt/application/conteudo/161587771
Law no. 21/2021, of April 20: Amends the Statute of Tax Benefits, the Code of Stamp Duty, the Investment Tax Code, the Vehicle Tax Code and the Single Circulation Tax Code and creates an extraordinary measure for counting deadlines within the scope of IRC.
https://dre.pt/application/conteudo/161766414
Regional Legislative Decree no. 11/2021/A, of April 20: The deferment of the obligation to return past-due and future payments related to the refundable incentive granted within the scope of the Autonomous Region of the Azores Tourism Incentive Scheme (SITRAA).
https://dre.pt/application/conteudo/161766417
Legislative Assembly of the Azores Autonomous Region Resolution no. 17/2021/A, of April 20: Extraordinary support for agricultural producers on the islands of Flores and Corvo.
https://dre.pt/application/conteudo/161766418
Rectification Declaration no. 12-A/2021, of April 21: Rectifies Decree no. 7/2021, of April 17, of the Presidency of the Council of Ministers, which regulates the state of emergency decreed by the President of the Republic, published in the Official Gazette, 1st Series, no. 74-A, of April 17, 2021.
https://dre.pt/application/conteudo/161904536
Regional Legislative Decree no. 12/2021/A, of April 22: First amendment to Regional Legislative Decree no. 26/2019/A, of November 22 – Legal Regime of the Civil Protection System of the Autonomous Region of the Azores.
https://dre.pt/application/conteudo/161904521
Ordinance no. 90/2021, of April 23: Establishes the conditions for access to the credit line with subsidised interest rates for fishing sector operators.
https://dre.pt/application/conteudo/162025488
Regional Regulatory Decree no. 4/2021/A, of April 26: Regulates the attribution of financial incentives for the introduction into consumption of new electric vehicles as well as the attribution of financial incentives for the acquisition of charging points for electric vehicles and establishes the values and conditions for the attribution of financial incentives.
https://dre.pt/application/conteudo/162067645
Ordinance no. 92/2021, of April 27: Creates the Civil Registry Office of Porto, by merging the 1st, 2nd, 3rd and 4th Civil Registry Offices of Porto, which are now extinct.
https://dre.pt/application/conteudo/162159137
Ordinance no. 93/2021, of April 27: Extension of the collective contract amendments between the Ribatejo Farmers’ Association – Employers’ Organisation of the Districts of Santarém, Lisbon and Leiria and the National Union of Workers in Agriculture, Forestry, Fishing, Tourism, Food Industry, Beverages and Related Fields – SETAAB.
https://dre.pt/application/conteudo/162159138
Ordinance no. 94/2021, of April 29: Integrates the General Inspection of Agriculture, Sea, Environment and Territorial Planning in the Unique Criminal Case Identifier Number system (NUIPC).
https://dre.pt/application/conteudo/162314517
Decree-Law no. 29-A/2021, of April 29: Creates an exceptional and temporary regime for the daily registration of workers on agricultural holdings and in the construction sector, making the fourth amendment to Decree-Law no. 79-A/2020, of October 1.
https://dre.pt/application/conteudo/162450400
Council of Ministers Resolution no. 45-C/2021, of April 30: Declares the situation of calamity, in the context of the pandemic of the disease COVID-19.
https://dre.pt/application/conteudo/162570903
4.3.1. Court of Justice of the European Union
Judgement of the Justice Court of April 15, Case C-846/19: Reference for a preliminary ruling. Value added tax (VAT). Directive 2006/112/EC. Economic activity. Supply of services for consideration. Article 2(1)(c) and Article 9(1). Exemptions. Article 132(1)(g). Supply of services closely linked to welfare and social security work. Services performed by a lawyer under powers of representation for the protection of adults lacking legal capacity. Body recognised as being devoted to social wellbeing.
Summary:
“Article 9(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the supply of services for the benefit of adults lacking legal capacity and intended to protect them in civil matters, the performance of which is entrusted to the person supplying services by a judicial authority in pursuance of the law and remuneration for which is fixed by the same authority as a fixed amount or is based on a case-by-case assessment by taking into account in particular the financial situation of the person lacking legal capacity – and such remuneration may moreover be borne by the State in the event that that person is indigent – where that supply is for consideration, the person supplying services obtains income therefrom on a continuing basis and the overall amount of the compensation for that activity is determined on the basis of criteria intended to ensure that the operating costs incurred by the person supplying services are covered, constitutes an economic activity within the meaning of that provision.
Article 132(1)(g) of Directive 2006/112 must be interpreted as meaning, first, that the supply of services for the benefit of adults lacking legal capacity and intended to protect them in civil matters constitutes a ‘supply of services closely linked to welfare and social security work’, and, secondly, that it is not excluded that a lawyer supplying such services of a social nature may benefit, for the purposes of the business he or she operates and within the limits of those supplies, from recognition as a body devoted to social wellbeing, and such recognition must however necessarily be granted by a judicial authority only if the Member State concerned, by refusing that recognition, exceeded the limits of the discretion which it enjoys in that regard.
The principle of the protection of legitimate expectations does not preclude the tax authority from imposing value added tax (VAT) on certain transactions relating to a previous period, in a situation where that authority has, over a number of years, accepted the taxable person’s VAT returns which do not include transactions of the same kind in its taxable transactions and where the taxable person is unable to recover the VAT due from those who have remunerated those transactions, with the remuneration already paid then deemed to include this VAT already.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0846
Judgement of the Justice Court of April 15, Case C-935/19: Reference for a preliminary ruling. Common system of value added tax (VAT). Directive 2006/112/EC. Article 273. Overvaluation, in the tax return, of the amount of the VAT refund. Error of assessment by the taxable person as to the taxable nature of the transaction. Correction of the tax declaration following an audit. Penalty of an amount equal to 20% of the amount of the overstatement of the amount of the VAT refund. Principle of proportionality.
Summary:
“Article 273 of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax and the principle of proportionality must be interpreted as meaning that they preclude a national regulation which imposes on a taxable person, having wrongly qualified a transaction exempt from value added tax (VAT) as a transaction subject to this tax, a penalty equal to 20% of the amount of the overstatement of the amount of the refund of VAT unduly claimed, insofar as this sanction applies indifferently to a situation in which the irregularity results from an error of assessment made by the parties to the transaction as to the taxable nature of the latter, which characterized by an absence of evidence of fraud and loss of revenue for the Public Treasury, and to a situation in which such special circumstances are lacking.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0935
Judgement of the Justice Court, of April 22, Case C-73/20: Reference for a preliminary ruling. Regulation (CE) no. 1346/2000. Insolvency proceedings. Article 4. Law applicable to insolvency proceedings. Law of the Member State within the territory of which the proceedings are opened. Article 13. Acts detrimental to all creditors. Exception. Requirements. Act governed by the law of a Member State other than the State of the opening of proceedings. Act not subject to challenge based on that law. Regulation (CE) no. 593/2008. Law applicable to contractual obligations. Article 12, 1, b). Scope of applicable law. Fulfilment of contractual obligations. Payment made in performance of a contract governed by the law of a Member State other than the State of the opening of proceedings. Performance by a third party. Action for recovery of that payment in the context of insolvency proceedings. Law applicable to that payment.
Summary:
“Article 13 of Council Regulation (CE) no. 1346/2000 of 29 May 2000 on insolvency proceedings and Article 12, 1, b) of Regulation (CE) no. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) must be interpreted as meaning that the law applicable to the contract under the latter regulation is the law applicable to the payment made by a third party in performance of the contractual obligation of a party to the contract to pay, where, in the context of insolvency proceedings, that payment is challenged as an act prejudicial to all the creditors.”
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62020CN0073
Judgement of the Constitutional Court no. 196/2021 of April 8, Case no. 1077/2019:
The Public Prosecutor’s Office filed an appeal to the Constitutional Court, requesting the assessment of the rule contained in article 154 of Law no. 7-A/2016, and the Constitutional Court decided:
“a) To deem unconstitutional, for violation of the prohibition on the creation of taxes with a retroactive nature set forth in article 103, no. 3, of the Constitution, the rule in article 154 of Law no. 7-A/2016, of March 30, in the part in which it attributes an interpretative nature to the wording that article 153 of the same Law gave to item 17.3.4 of the General Stamp Tax Table, annexed to the Stamp Tax Code; and, consequently,
b) Dismiss the appeal.”.
https://www.tribunalconstitucional.pt/tc/acordaos/20210196.html
Judgement of the Constitutional Court no. 247/2021, of April 28, Case no. 168/2021:
The Court has decided:
“To declare the unconstitutionality, with mandatory general force, of the rules contained in paragraphs 4 and 5 of article 19, when read together with paragraph 6 of the same article, of Organic Law no. 1/2001, of August 14, which regulates the election of the office holders of the local authority bodies, in the wording given to it by Organic Law no. 1-A/2020, of August 21, on the grounds of infringement of the provisions of paragraph 1 of article 48, in conjunction with paragraph 4 of article 239 and paragraph 2 of article 18, all of the Constitution”.
https://www.tribunalconstitucional.pt/tc/acordaos/20210247.html
Judgement of the Coimbra Court of Appeal, of April 7, Case no. 292/06.1IDBRG.C1: Tax crime. Tax fraud. Suspension of the tax criminal procedure. Time limit of the criminal procedure. Suspension of the prescription.
Summary:
“I – The suspension of tax criminal proceedings, provided for in Article 47 of the RGIT (wording of Law No. 53/-A/2006 of 29-12), based on the pendency of a judicial challenge or opposition to tax execution, is only justified in cases where the existence of the criminal offence depends on the resolution of a tax matter.
II – This requires prior analysis, by means of a court order, of the grounds, in the case in question, for the appeal lodged.
III – Therefore, in order to determine the suspension of the statute of limitations for criminal proceedings, as a result of the suspension of the criminal proceedings, the order that sets this suspension is relevant.
IV – If it is necessary to issue an order that, considering the grounds of the challenge or opposition to enforcement pending in the administrative or tax courts, verifies whether they are relevant to the issue raised in the criminal proceedings, determining the suspension of those proceedings if it is concluded that such relevance exists, then the suspension of the statute of limitations can only occur from the moment that such an order is issued.”.
Judgement of the Lisbon Court of Appeal, of April 13, Case no. 3011/19.9YLPRT.L1-7: Special eviction procedure. Opposition to renewal. Suspension of judicial proceedings. Covid-19 legislation.
Summary:
“1. In a PED brought in December 2019, following opposition to the renewal of the term of the residential lease by the landlord, and failure to hand over the leased premises by the tenant on expiry of the term, article 8 of Law no. 1-A/2020, of 19.03, does not apply.
2. The PED will only be suspended during the term of the exceptional and transitory regime created by Law 1-A/2020 of 19.03 (both in its initial version and in that resulting from the alterations made by Laws nº 4-A/2020 of 6.4 and 16/2020 of 29. 5), when, due to the final decision to be issued in the referred procedure, the tenant may be placed in a situation of frailty due to lack of proper housing or due to other imperative social reason, situation that must be alleged and proved by the tenant, and evaluated by the court, in order to justify the referred suspension, the suspension in question not operating automatically, ope legis.”.
Judgement of the Lisbon Court of Appeal, of April 22, Case no. 414/19.5T8MDL.L1-8: Bank liability. Time limit. Interruption. Calculation of the deadline. Judicial holidays.
Summary:
“I- The interruption of the limitation period may occur in Court by means of a summons or judicial notification, but the interruption is only conceivable while the limitation period has not occurred in its entirety, not understanding that, once consummated, its interruption may still be applicable.
II- The limitation period is verified by the simple passing of the time limit, irrespective of the practice of any act or business declaration; it is not an act that is covered by paragraph e) of Article 279 of the Civil Code.”.
4.3.4. Administrative and Tax Courts
Judgement of the Supreme Administrative Court, of April 7, Case no. 0835/13.4BELRS: IVA. Regularisation.
Summary:
“The applicable time limit for claiming Value Added Tax (VAT) over-delivered, in a situation falling within the so-called error of law, is four years, under the terms provided for in Article 98(2) of the VAT Code.”.
Judgement of the Supreme Administrative Court, of April 7, Case no. 0635/15.7BEVIS: General Regime. Administrative offence. Time limit.
Summary:
“I – The statute of limitation for proceedings for an administrative offence provided for and punished by article 114 of the General Taxation Infringements Law always takes place when, since its commencement and save for the time of suspension, a period of six years has elapsed – article 28(3) of the General Taxation Infringements Law;
II – The suspension of the statute of limitations in pending procedures cannot exceed six months – Article 27-A, paragraph 2, of the same diploma;
III – Therefore, the statute of limitations in proceedings for an administrative offence provided for and punished under Article 114 of the General Taxation Infringements Law always runs when a period of six years and six months has elapsed since it began;
IV – The statute of limitations for the administrative offence procedure must be declared ex officio by any judicial authority at any time or stage of the proceedings as long as it has not been completed.”.
Judgement of North Administrative Central Court, of April 15, Case no. 00606/09.2BEBRG: Stamp duty. Donation to the son and his spouse. Renunciation of donation. Public Rectification Deed. Material errors.
Summary:
“1. For the purposes of item 1.2 of the General Table, the following are considered to be gratuitous transfers, namely those which have as their object: Right of ownership or parcels of this right over immovable property, including acquisition by usucaption;(…) Acquisition derived from the invalidity, distrain, renunciation or withdrawal, resolution, or revocation of the gift between living persons with or without usufruct reservation;
2.The CIS, in its article 6, (e) provides that the spouse, descendants and ascendants are exempt from stamp duty, when it constitutes a charge, in gratuitous transfers of which they are beneficiaries;
3.The very special treatment provided by the rule in article 249 is explained by the fact that the error committed is manifest. In fact, there should be no reasonable doubt about what was intended to be stated. Clerical errors or lapses are clearly defined in the procedural law, in article 667 (now 614), where errors are only those which have a material expression of the will of the contracting parties, clerical or calculation errors or inaccuracies and not errors which may have influenced the formation of the will declared. The errors will have to be perfectly perceptible in the context of the deed.
4.The public deed in which the donee renounces the undivided half of the property, consolidating the total ownership in a single person, is subject to stamp duty.”.
Monographs and Periodic Publications
Susana Amaral Ramos, Recuperação de Empresas – Regimes Legais Anotados, Almedina, abril 2021
Barreto Menezes Cordeiro (Coord.), Comentário ao Regulamento Geral de Proteção de Dados e à Lei N.º 58/2019, Almedina, abril 2021
António Gama et al., Comentário Judiciário do Código de Processo Penal – Livro 2: Artigos 124º a 190º, 3.ª Edição, Almedina, abril 2021
António Menezes Cordeiro, Código das Sociedades Comerciais – Anotado, 4.ª Edição, Almedina, abril 2021
José Braz, Ciência, Tecnologia e Investigação Criminal, 2.ª Edição, Almedina, abril 2021
Jorge Pinto Furtado, Comentário ao Regime do Arrendamento Urbano, 2.ª Edição, Almedina, abril 2021
Joaquim Miranda Sarmento, Ricardo Nunes, Marta Morais Pinto, Manual Teórico-Prático de IRC, 4.ª Edição, Almedina, abril 2021
Joaquim Miranda Sarmento, Catarina Matos, Manual Teórico-Prático de IVA, 3.ª Edição, Almedina, abril 2021
António Martins (Coord.), Daniel Taborda (Coord.), Ensaios Sobre Regimes de Simplificação Tributária, Almedina, abril 2021
Luís Manuel Teles de Menezes Leitão, Direito de Autor, 4.ª Edição, Almedina, abril 2021
Virgínio da Costa Ribeiro, Sérgio Rebelo, A Ação Executiva Anotada e Comentada, 3.ª Edição, Almedina, abril 2021
António da Silva Henriques Gaspar et al., Código de Processo Penal Comentado, 3.ª Edição, Almedina, abril 2021
4.4.2. Generic Guidelines & Cia
Order no. 125/2021-XXII, of 14.04.2021, by order of the Deputy Secretary of State and Tax Affairs
Subject: Financial leasing contracts. Legal moratorium.
Circulate Letter no. 20232, of 16.04.2021, by order of the Direction of Corporate Income Tax Services
Subject: IRC – Rates of municipal surcharge applicable to taxable income for the 2020 tax period.
Circulate Letter no. 30233, of 19.04.2021, by order of the Deputy Director-General of the Tax Management Area-IVA
Subject: IVA –”Balcão Único” or “OSS – One Stop Shop”. Pre-registration or updating of registration data.
Order no. 133/2021-XXII, of 22.04.2021, by order of the Deputy Secretary of State and Tax Affairs
Subject: Readjustment of the fiscal calendar 2021.
Circulate Letter no. 30234, of 23.04.2021, by order of the Deputy Director-General of the Tax Management Area-IVA
Subject: IVA –Deadline for filing the periodic declaration and payment of the respective tax.
Circulate Letter no. 30235, of 27.04.2021, by order of the Deputy Director-General of the Tax Management Area-IVA
Subject: IVA – Non-resident taxable persons. Its relationship with the inversion rules provided for in Article 2, 1, e), g) and h) of the VAT Code.
Economy, Finance and Taxation
The Council of Ministers approved, on 29 April, a set of diplomas for the prevention and fight against corruption, as well as an amendment to the extraordinary support to the progressive recovery in companies in crisis with temporary reduction of the normal working period (PNT).
The Council of Ministers also approved on the same date, the decree-law that creates an exceptional measure of compensation for employers, given the increase in the value of minimum monthly salary guaranteed (RMMG), through the allocation of a cash grant. This measure aims to reinforce the importance that the increase of the RMMG value assumes in the promotion of a more dignified work and in the promotion of growth, without neglecting the financial weight that it represents in the current economic situation for companies.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=416
The Statistics Report on Inventions, Design, Trademarks and Other Distinctive Signs of Commerce for the year 2020 has been published.
Technological Incidence Rights registered a significant growth when compared to the same period of the previous year, while the levels of demand were lower than in 2019. A positive note for the number of national applications in the field of Inventions (1,124), leading to a growth of 16.5% compared to the same period of the previous year.
https://inpi.justica.gov.pt/en-gb/INPI-News/Annual-Statistical-Report-2020
After being unanimously adopted by the EUIPO Management Board, PC12 (Common Practice/Recommendations on – Evidence in Trademark Appeal Proceedings) has recently been published throughout the EU.
https://inpi.justica.gov.pt/Noticias-do-INPI/PC12-Publicacao-da-Comunicacao-Comum
INPI’s Monthly Statistics for March 2021 were published, with the Monthly Evolution of INPI’s Industrial Property Rights.
Note for trademark applications and other distinctive signs of commerce, which registered the highest monthly value of the last two years, with 2963 applications.
https://inpi.justica.gov.pt/Noticias-do-INPI/Estatisticas-INPI-de-marco-de-2021
CP11 Common Practice (New types of marks: Examination of formal requirements and grounds for refusal), adopted by the Board in October 2020, has been published, which provides a set of general principles and examples on the examination of formal requirements and grounds for refusal and/or invalidity of new types of marks.
https://inpi.justica.gov.pt/en-gb/INPI-News/CP11-Common-Communication
After a year of pandemic and mandatory confinements, the United Nations is proposing to mark 2021 as the International Year of Creative Economy for Sustainable Development.
https://inpi.justica.gov.pt/Noticias-do-INPI/Dia-Mundial-da-Criatividade-e-da-Inovacao
On April 14, it was held the 14th High Level Meeting of the Anti-Counterfeiting Group (GAC), in digital format, in which the 2020 Activity Report and the Activity Plan for 2021 were unanimously approved. The 2020 Activities Report reveals data on seizures made by the Tax Authority (AT), the Public Security Police (PSP), the National Republican Guard (GNR) and the Food and Economic Security Authority (ASAE), which amounted to a total of 1,390,379 units of counterfeit or pirated products.
The Centromarca – Portuguese Association of Companies of Branded Products, awarded the third edition of the ‘Jornalismo que Marca’ prize, worth 2,500 euros, to journalist Inês Rocha, from Rádio Renascença, for the work “Dropshipping. Estes produtos “portugueses” afinal vinham da China“, published in September 2020.
https://inpi.justica.gov.pt/Noticias-do-INPI/Terceira-edicao-do-Premio-Jornalismo-que-Marca-1
As of May 1, Small and Medium-sized Enterprises (SMEs) will be able to apply for the third funding window of the European SME Fund, which will close on May 31, 2021. The Fund is open to all EU companies that fall under the official SME definition, offering financial support in the form of reimbursements up to a maximum amount of €1,500 per company.
https://inpi.justica.gov.pt/Noticias-do-INPI/Candidaturas-ao-Fundo-europeu-para-as-PME-1
E-LEGAL® NEWSLETTER – MAY 2021
5.1. EDITORIAL – INJUNCTION PROCEDURE ON LEASES; LIMITATIONS ON THE REDACTION OF GENERAL CONTRACTUAL CLAUSES; PORTUGUESE CHARTER OF HUMAN RIGHTS IN THE DIGITAL AGE; EXCEPTIONAL AND TEMPORARY SUSPENSION OF ESSENTIAL SERVICES SUPPLY CONTRACTS
The month of May was marked, at the legislative level, by the approval and publication, on the one hand, of the Decree-Law no. 34/2021, of May 14, approving the Injunction Procedures for Leases (IMA) and, on the other hand, of Law no. 32/2021, of May 27, which establishes limitations on the redaction of contractual clauses and provides for the creation of a system for the control and prevention of abusive clauses, amending Decree-Law no. 446/85 of 25 October 1985, which establishes the legal framework for general contractual clauses.
On the legislative sphere, reference should also be made to:
I) Law no. 27/2021, of May 17, which approved the Portuguese Charter of Human Rights in the Digital Era;
II) Law no. 29/2021, of May 20, which established the exceptional and temporary suspension of contracts for the supply of essential services in the context of the pandemic of the disease COVID-19.
In the scope of case law, we highlight the Judgement of the Justice Court of May 12, Case C‑844/19, which clarified that Article 90(1) and Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with the principle of fiscal neutrality, must be interpreted as meaning that a refund resulting from an adjustment of the taxable amount under Article 90(1) of that directive must, like a refund of excess value added tax under Article 183 of that directive, give rise to the payment of interest where it is not made within a reasonable period of time. It is for the referring court to do whatever lies within its jurisdiction to give full effect to those provisions by interpreting national law in conformity with EU law.
Finally, in Miscellaneous, it is worth highlighting the approval by the Council of Ministers, on May 27, of the Decree-Law that reviews the regime applicable to energy efficiency management contracts to be signed between public administration services and organisms and service providers.
Law no. 22/2021, of May 3: Grants the Government legislative authorisation to approve the legal regime applicable to individual teaching and home teaching.
https://dre.pt/application/conteudo/162562463
Council of Ministers Resolution no. 46-A/2021, of May 3: Authorises “Infraestruturas de Portugal, S. A.”, to develop procedures for the implementation of five road projects.
https://dre.pt/application/conteudo/162666782
Assembly of the Republic Resolution no. 134/2021, of May 4: Approves, for ratification, the amendment to be added to Article 8 of the Rome Statute of the International Criminal Court, adopted in The Hague on 6 December 2019.
https://dre.pt/application/conteudo/162666816
Regional Legislative Decree no. 13/2021/A, of May 4: Establishes an Extraordinary Cultural Support Programme in the Autonomous Region of the Azores and defines the terms and conditions of access to it.
https://dre.pt/application/conteudo/162666817
Decree-Law no. 29-B/2021, of May 4: Establishes the governance model for the European funds allocated to Portugal through the Recovery and Resilience Plan (RRP) under the European Union’s Recovery and Resilience Mechanism (RRM) for the period 2021-2026.
https://dre.pt/application/conteudo/162756795
Council of Ministers Resolution no. 46-B/2021, of May 4: Creates the “Recuperar Portugal” Mission Structure as the entity responsible for the technical coordination and management coordination of the execution of the Recovery and Resilience Plan (RRP).
https://dre.pt/application/conteudo/162756796
Ordinance no. 98/2021, of May 5: Approves the model 30 declaration – income paid or placed at the disposal of non-resident taxpayers, and the respective instructions for completing it, in order to comply with the reporting obligation set out in paragraph a) of no. 7 of article 119 of the Personal Income Tax (IRS) Code and article 128 of the Corporate Income Tax (IRC) Code.
https://dre.pt/application/conteudo/162753746
Regional Legislative Decree no. 14/2021/A, of May 5: Undertakes the fifth amendment to Regional Legislative Decree no. 21/2009/A, of December 2, which establishes the legal regime of support to sports associations.
https://dre.pt/application/conteudo/162753747
Council of Ministers Resolution no. 46-C/2021, of May 6: Amends the measures applicable to certain municipalities in the context of the disaster situation.
https://dre.pt/application/conteudo/162939983
Law no. 23/2021, of May 7: Re-establishes the functioning of the independent technical observatory for the analysis, monitoring and evaluation of forest and rural fires occurring in the national territory.
https://dre.pt/application/conteudo/162940680
Decree-Law no. 30/2021, of May 7: Provides for the regulation of Law no. 54/2015, of June 22, with regard to mineral deposits.
https://dre.pt/application/conteudo/162940682
Decree-Law no. 31/2021, of May 7: Creates the State Foreign Policy Support Skills Centre (CAPE), as a service integrated in the General Secretariat of the Ministry of Foreign Affairs.
https://dre.pt/application/conteudo/162940683
Law no. 24/2021, of May 10: Clarifies the legal nature of the employment relationship of staff appointed to perform duties in the offices of parliamentary groups, single Deputies representing one party and unenrolled Deputies, amending the Law on the Organisation and Functioning of the Services of the Assembly of the Republic, approved by Law no. 77/88, of July 1.
https://dre.pt/application/conteudo/163012626
Ordinance no. 99/2021, of May 10: Regulates the private insurance system for cooperation agents contracted by public entities.
https://dre.pt/application/conteudo/163012628
Ordinance no. 100/2021, of May 10: Defines the game species that can be hunted during the 2021-2024 hunting seasons, as well as the periods, proceedings and other constraints.
https://dre.pt/application/conteudo/163012629
Law no. 25/2021, of May 11: Includes new psychoactive substances in the definition of drugs, transposing Commission Delegated Directive (EU) 2020/1687, of 2 September 2020, and amending Decree Law no. 15/93, of January 22, which approves the legal regime applicable to the trafficking and consumption of narcotic drugs and psychotropic substances.
https://dre.pt/application/conteudo/163092604
Council of Ministers Resolution no. 49/2021, of May 11: Approves the Cultural Heritage Investment Programme.
https://dre.pt/application/conteudo/163092607
Council of Ministers Resolution no. 50/2021, of May 11: Creates the Portuguese Contemporary Art Network and the Curator of the State Collection of Contemporary Art.
https://dre.pt/application/conteudo/163092608
Council of Ministers Resolution no. 51/2021, of May 11: Amends the guidelines for the National Arts Plan.
https://dre.pt/application/conteudo/163092609
Council of Ministers Resolution no. 52-A/2021, of May 11: Amends the special measures applicable to the parishes of São Teotónio and Longueira/Almograve, in the municipality of Odemira.
https://dre.pt/application/conteudo/163191184
Decree-Law no. 32/2021, of May 12: Undertakes the seventh amendment to Decree-Law no. 46-A/2020, of July 30, which creates the extraordinary support for the progressive resumption of activity in companies in a situation of business crisis with a temporary reduction of the normal working period.
https://dre.pt/application/conteudo/163158834
Decree-Law no. 33/2021, of May 12: Creates the Vila Franca de Xira Hospital, E. P. E.
https://dre.pt/application/conteudo/163158835
Assembly of the Republic Resolution no. 139/2021, of May 13: Recommends that the Government adopt measures to regulate social support activity for elderly people without accommodation.
https://dre.pt/application/conteudo/163240323
Regulatory Decree no. 6/2021/A, of May 13: Regulates the Extraordinary Support Programme for Private Media Organs, approved by the Regional Legislative Decree no. 9/2021/A, of April 5.
https://dre.pt/application/conteudo/163240325
Decree-Law no. 34/2021, of May 14: Undertakes: a) To define the regime of the injunction procedure in matters of lease (IMA), provided for in Article 15-T of Law no. 6/2006, of 27 February 2006, in its current wording, which approves the New Urban Rental Regime (NRAU); b) To regulate the Leasehold Injunction Service (SIMA).
https://dre.pt/application/conteudo/163332285
Council of Ministers Resolution no. 59/2021, of May 14: Reviews and approves the guiding principles of the programme “Iniciativa Nacional Competências Digitais e.2030 – INCoDe.2030“.
https://dre.pt/application/conteudo/163332292
Ordinance no. 102-A/2021, of May 14: Regulates the new incentive to the normalization of business activity, provided for in Decree-Law no. 23-A/2021, of March 24, and the simplified support for micro-enterprises to maintain jobs, provided for in Decree-Law no. 46-A/2020, of July 30.
https://dre.pt/application/conteudo/163332280
Decree-Law no. 34-A/2021, of May 14: Undertakes the first amendment to Decree-Law no. 46/2016, of August 18, which establishes the transitional regime for the titles of private use of water resources for aquaculture purposes in transitional waters.
https://dre.pt/application/conteudo/163442522
Decree-Law no. 34-B/2021, of May 14: Defines the transitional model for the management, operation, maintenance, modernisation and extension of the SIRESP network.
https://dre.pt/application/conteudo/163442523
Council of Ministers Resolution no. 59-A/2021, of May 14: Grants compensatory indemnity to “SIRESP – Gestão de Redes Digitais de Segurança e Emergência, S. A.”.
https://dre.pt/application/conteudo/163442524
Ordinance no. 102-C/2021, of May 14: It identifies for the year 2021 coastal and transitional bathing waters and inland bathing waters, fixing the respective bathing seasons, as well as identifying bathing beaches where lifeguards are ensured.
https://dre.pt/application/conteudo/163442525
Council of Ministers Resolution no. 59-B/2021, of May 14: Declares the situation of calamity, in the context of the pandemic of the disease COVID-19.
https://dre.pt/application/conteudo/163442517
Order no. 4957-A/2021, of May 14: Approves the list of countries and international sports competitions where the rules on air traffic, airports, land and river borders apply.
https://dre.pt/application/conteudo/163442529
Law no. 26/2021, of May 17: Authorises the Government to establish the rules ensuring the implementation of Regulation (EU) 2017/2394 of the European Parliament and of the Council of December 12 of 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws.
https://dre.pt/application/conteudo/163442503
Law no. 27/2021, of May 17: Approves the Portuguese Charter on Human Rights in the Digital Age.
https://dre.pt/application/conteudo/163442504
Decree-Law no. 35-A/2021, of May 18: Regulates the access, occupation and use of bathing beaches, in the context of the COVID-19 disease pandemic, for the 2021 bathing season.
https://dre.pt/application/conteudo/163551454
Decree-Law no. 36/2021, of May 19: Prohibits the advertising of discounts on the price of medicines whose advertising is prohibited.
https://dre.pt/application/conteudo/163631333
Law no. 29/2021, of May 20: Exceptional and temporary suspension of contracts for the supply of essential services in the context of the pandemic disease COVID-19.
https://dre.pt/application/conteudo/163724385
Law no. 30/2021, of May 21: Approves special measures for public contracting and amends the Public Contracts Code, approved in annex to Decree-Law no. 18/2008, of January 29, the Procedure Code for Administrative Courts, approved in annex to Law no. 15/2002, of February 22, and Decree-Law no. 200/2008, of October 9.
https://dre.pt/application/conteudo/163728569
Assembly of the Republic Resolution no. 148/2021, of May 21: First supplementary budget of the Assembly of the Republic for the year 2021.
https://dre.pt/application/conteudo/163728571
Decree-Law no. 37/2021, of May 21: Creates an exceptional measure to compensate the increase in the value of the minimum monthly salary guaranteed.
https://dre.pt/application/conteudo/163728573
Council of Ministers Resolution no. 62-A/2021, of May 21: Amends the measures applicable to certain municipalities in the context of the calamity situation.
https://dre.pt/application/conteudo/163863274
Order no. 108/2021, of May 25: Defines out the criteria to be considered when proving disability for the purposes of awarding the disability allowance for child benefit.
https://dre.pt/application/conteudo/163994098
Law no. 32/2021, of May 27: Establishes limitations on the redaction of contractual clauses and provides for the creation of a system for the control and prevention of abusive clauses, amending Decree-Law no, 446/85 of 25 October 1985, which establishes the legal framework for general contractual clauses.
https://dre.pt/application/conteudo/164144641
Order no. 114-A/2021, of May 27: Approves the Statutes of the Housing and Urban Rehabilitation Institute, I.P.
https://dre.pt/application/conteudo/164144651
Law no. 33/2021, of May 28: It extends the exemption from value added tax on intra-Community transfers and acquisitions of goods needed to combat the effects of the pandemic disease COVID-19.
https://dre.pt/application/conteudo/164234014
Decree-Law no. 37-A/2021, of May 28: Guarantees the non-reduction of remuneration and the right to national social protection for prosecutors appointed Delegated European Public Prosecutors.
https://dre.pt/application/conteudo/164321571
Implementing Decree no. 2-A/2021, of May 28: It defines the scope and specific conditions for the operation of the “IVAucher” programme.
https://dre.pt/application/conteudo/164321572
Council of Ministers Resolution no. 64-A/2021, of May 28: Extends the disaster situation and modifies the measures applicable to certain municipalities in the context of the disaster situation.
https://dre.pt/application/conteudo/164321573
Ordinance no. 115-A/2021, of May 28: Establishes the implementation regime for the new exceptional and temporary measure provided for in Article 39b of Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 17 December under the Rural Development Programme for Mainland Portugal (RDP 2020).
https://dre.pt/application/conteudo/164321574
Law no. 33-A/2021, of May 28: Establishes the temporary tax regime applicable to the organisers of the final of the UEFA Champions League 2020 -2021 competition, as well as to sports clubs, their players and technical teams, by virtue of their participation in that competition.
https://dre.pt/application/conteudo/164258752
Assembly of the Republic Resolution no. 156-A/2021, of May 28: Extension of the term of operation of the Parliamentary Eventual Enquiry Commission into the losses recorded by Novo Banco and imputed to the Resolution Fund.
https://dre.pt/application/conteudo/164258753
Council of Ministers Resolution no. 65/2021, of May 30: Recognises the need for the civil requisition of workers in the investigation and inspection career of the Foreigners and Borders Service who work at border posts.
https://dre.pt/application/conteudo/164258774
Ordinance no. 116/2021, of May 30: Effectuates the civil requisition whose necessity was recognized by the Resolution of the Council of Ministers No. 65/2021, of 27 May.
https://dre.pt/application/conteudo/164390775
Decree-Law no. 38/2021, of May 31: Approves the legal regime applicable to the protection and conservation of wild flora and fauna and of natural habitats of species listed in the Berne and Bonn Conventions.
https://dre.pt/application/conteudo/164258742
Decree-Law no. 39/2021, of May 31: It extends the deadlines for the procedures for allocating funding and compensation to essential transport operators in the framework of the pandemic disease COVID-19.
https://dre.pt/application/conteudo/164258743
Regional Legislative Decree no. 15-A/2021/A, of May 31: Approves the Budget of the Autonomous Region of the Azores for the year 2021.
https://dre.pt/application/conteudo/164454929
5.3.1. Court of Justice of the European Union
Judgement of the Justice Court of May 12, Case C-709/19: Reference for a preliminary ruling. Jurisdiction and the enforcement of judgments in civil and commercial matters. Regulation (EU) No 1215/2012. Article 7(2). Jurisdiction in tort, delict or quasi-delict. Place where the harmful event occurred. Damage consisting in purely financial loss.
Summary:
“Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the direct occurrence in an investment account of purely financial loss resulting from investment decisions taken as a result of information which is easily accessible worldwide but inaccurate, incomplete or misleading from an international listed company does not allow the attribution of international jurisdiction, on the basis of the place of the occurrence of the damage, to a court of the Member State in which the bank or investment firm in which the account is held has its registered office, where that firm was not subject to statutory reporting obligations in that Member State.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0709
Judgement of the Justice Court of May 12, Case C‑844/19: Reference for a preliminary ruling. Common system of value added tax (VAT). Directive 2006/112/EC. Article 90. Reduction of the taxable amount. Article 183. Refund of excess VAT. Default interest. No national rule. Principle of fiscal neutrality. Direct effect of provisions of EU law. Principle that national law must be interpreted in conformity with EU law.
Summary:
“Article 90(1) and Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with the principle of fiscal neutrality, must be interpreted as meaning that a refund resulting from an adjustment of the taxable amount under Article 90(1) of that directive must, like a refund of excess value added tax under Article 183 of that directive, give rise to the payment of interest where it is not made within a reasonable period of time. It is for the referring court to do whatever lies within its jurisdiction to give full effect to those provisions by interpreting national law in conformity with EU law.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0844
Judgement of the Justice Court of May 20, Case C‑8/20: Reference for a preliminary ruling. Area of freedom, security, and justice. Border controls, asylum, and immigration. Asylum policy. Directive 2013/32/EU. Common procedures for granting and withdrawing international protection status. Application for international protection. Grounds for inadmissibility. Article 2(q). Concept of “subsequent application”. Article 33(2)(d). Rejection by a Member State of an application for international protection on the ground of inadmissibility because of the rejection of a previous application made by the person concerned in a non-member State which has concluded an agreement with the European Union on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in one of the States party to that agreement. Final decision taken by the Kingdom of Norway.
Summary:
“Article 33(2)(d) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June of 2013 on common procedures for granting and withdrawing international protection status, read in conjunction with Article 2(q) thereof, must be interpreted as precluding legislation of a Member State which provides for the possibility of rejecting, on grounds of inadmissibility, an application for international protection, within the meaning of Article 2(b) of that directive, submitted to that Member State by a third country national or a stateless person whose previous application for refugee status, submitted to a third State implementing Regulation (EU) no. 604/2013 of the European Parliament and of the Council of June 26 of 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person in accordance with the Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining an application for asylum lodged in a Member State or in Iceland or Norway – Statements, has been rejected by that third State.”
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62020CJ0008
Judgement of the Constitutional Court no. 272/2021 of May 5, Case no. 1161/2019:
The Public Prosecutor’s Office filed an appeal to the Constitutional Court, requesting the assessment of the rule contained in article 334 of the Labour Code and in article 481, no. 2, introductory part, of the Commercial Companies Code, in the part that prohibits the solidary responsibility of a company registered outside national territory, in a relation of reciprocal participations, dominium or group with a Portuguese company, for credits arising from the subordinate labour relationship established with the latter, or from its rupture, and the Constitutional Court decided:
“To declare the unconstitutionality, with binding general force, of the conjugated interpretation of the norms contained in article 334 of the Labour Code and in article 481, no. 2, introductory wording, of the Commercial Companies Code, in the part in which it prohibits the solidary responsibility of a company registered outside of national territory, in a relationship of reciprocal participations, of dominion or of group with a Portuguese company, for credits arising from the subordinate work relationship established with the latter, or from its rupture, due to the violation of the principle of equality, enshrined in article 13 of the Constitution.”
https://www.tribunalconstitucional.pt/tc/acordaos/20210272.html
Judgement of the Coimbra Court of Appeal, of May 4, Case no. 4422/17.0T8VIS-B.C1: Verification of claims. List of acknowledged creditors. Notification. Secondary nullity. Correction.
Summary:
“I) Within 15 days following the expiry of the time limit for claims in insolvency proceedings, the insolvency administrator shall file at the registry a list of all creditors recognised by him and a list of those not recognised.
II) The failure to notify the insolvency administrator of the list of claims acknowledged by the insolvency administrator may result in a secondary nullity, which shall invalidate all subsequent procedural steps.
III) This nullity is cured if the insolvent party was notified of the objections to the list of non-recognised claims and did not challenge it within the time period available for that purpose.”.
Judgement of the Coimbra Court of Appeal, of May 4, Case no. 142/19.9T8FND-B.C2: Capacity. Claims under resolutive condition. Claims under suspensive condition. Judicial decision. Joint and several debtors. Intention to novate. Own interest of the company. Novation. Burden of proof. Burden of allegation. Provision of guarantees. Commercial companies.
Summary:
“I) The requirements for novation are: the intention to novate, expressly declared; the validity and subsistence of the original obligation at the time when the second one is contracted.
II) The intention to novate and the express expression of such intention must be alleged and proven by the person invoking it.
III) It is contrary to the purpose of a commercial company to provide real or personal guarantees for the debts of other entities, unless there is a justified interest on the part of the guaranteeing company or if the company is in a controlling or group relationship.
IV) The burden of alleging and proving the non-existence of a self-interest lies with the company claiming that the guarantee provided by it is void in order to avoid having to perform the guaranteed obligation.
V) Since claims subject to suspensive and resolutive condition are those whose constitution or subsistence are subject to the occurrence or non-occurrence of a future and uncertain event by virtue of law, court decision or legal transaction, this does not mean that the court decision itself constitutes a condition, but rather that the conditions stated in the very wording of a court decision are taken into account.
VI) A claim subject to a resolutive condition is a claim the source of which produces immediate legal effects but which may be terminated if the condition is fulfilled, which is why, in insolvency proceedings, insolvency claims subject to a resolutive condition shall be treated as unconditional until the time when the condition is fulfilled, without prejudice to the duty to return payments received, whatever the condition may be.
VII) In the case of a plurality of joint debtors, the creditor may claim the whole of his claim from the insolvent debtor and claim full payment from the other joint debtors, and may do so both in enforcement proceedings and in insolvency proceedings of joint debtors, with the limit that he may not receive twice.”.
5.3.4. Administrative and Tax Courts
Judgement of the Supreme Administrative Court, of May 12, Case no. 0261/19.1BELLE: Insolvency. Notification.
Summary:
“I – The combination of the provisions of Articles 81 (4) of the Insolvency and Corporate Recovery Code (CIRE) and 41 (3) of the Tax Procedure and Process Code (CPPT) unavoidably leads to the conclusion, with no other escape route, that legal persons and companies, after the declaration of insolvency, are served with and/or notified of any tax-related effect, in principle/as a rule, in the person of the “liquidator”, now the insolvency administrator.
II – If it is not proven that the assessments supporting the enforceable debt have been notified (to the insolvency administrator), the situation of unenforceability of the latter [basis for opposition to tax execution, set out in article 204 (1) (i) of the CPPT] unreservedly occurs.”.
Judgement of the Supreme Administrative Court, of May 12, Case no. 0237/17.3BELLE: Usufruct. Capital Gains. Exclusion.
Summary:
“I-The law expressly and unequivocally provides for the exclusion from taxation of capital gains on the sale of usufruct rights over a property used as the usufructuary’s main permanent dwelling, provided that the other conditions set out in Article 10(5) of the CIRS are met, namely reinvestment in the acquisition of full ownership of another property used exclusively as the main permanent dwelling of the taxpayer or of his household, which is the case here.
II – This solution allows the elimination of tax obstacles to the change of dwelling, in a dwelling of one’s own, thus making effective the fundamental right of the individual to housing, objectives that guide the rule of exclusion from taxation provided for in Article 10(5) of the CIRS.
III – Bearing in mind that the legislator’s intention was not to make it difficult for families and their households to acquire their own permanent home, it is imperative to conclude that in the case in question, the appellant sold the asset – usufruct right – that was his own permanent home and acquired a property from scratch for his own permanent home, the exclusion from taxation of the portion of capital gains being fully justified.”.
Judgement of South Administrative Central Court, of May 6, Case no. 102/20.7BCLSB: Sport Arbitration Court. Sports Discipline. Disciplinary Responsibility. Sport Clubs. Presumptions.
Summary:
“I – The disciplinary liability of clubs and sports societies provided for in Article 187 of the Disciplinary Regulations of the LPFP for the socially or sportively incorrect conducts or behaviours that are described therein and that were held by the members or supporters of a club or sports society and for which they are liable does not constitute an objective liability violating the principles of guilt and presumption of innocence.
II – The disciplinary sports responsibility provided for therein appears to be, in casu, subjective, since it is based on a breach of the legal and regulatory duties incumbent upon clubs and sports societies in this field and in which the criterion for delimitation of authorship of the unlawful act appears to be cut off by appealing not to that of the field of the fact, but to that of the ownership of the duty that was omitted or neglected.”.
Monographs and Periodic Publications
Alexandre de Soveral Martins, Compra e Venda Internacional de Mercadorias: a CISG, Almedina, maio 2021
Letícia Marques Costa, A Insolvência de Pessoas Singulares, Almedina, maio 2021
Joaquim Freitas da Rocha, João Damião Caldeira, Regime Complementar do Procedimento de Inspeção Tributária e Aduaneira – Anotado e Comentado, 2ª Edição, Almedina, maio 2021
Jorge Miranda, Aperfeiçoar a Constituição, Almedina, maio 2021
Dário Moura Vicente (Coord.), Lei da Arbitragem Voluntária Anotada, 5ª Edição, Almedina, maio 2021
Madalena Perestrelo de Oliveira, Tutela do Investidor Perante o Emitente no Mercado de Capitais – Um Modelo Dinâmico de Proteção, Almedina, maio 2021
João A. Alves, O Novo Modelo de Proteção de Dados Pessoais Europeu, Almedina, maio 2021
Sara Luís Dias, O Crédito Tributário no Processo de Insolvência e nos Processos Judiciais de Recuperação, Almedina, maio 2021
José Gaspar Schwalbach, Direito Digital, Almedina, maio 2021
5.4.2. Generic Guidelines & Cia
Circulate Letter no. 90033, of 13.05.2021, by order of the Deputy Director-General of the Collections Area
Subject: Brexit – Tax Representation – Updating of Point 1.1 of Circular Letter No 90031 of 11.01.2021.
Circulate Letter no. 20233, of 07.05.2021, by order of the Deputy Director-General of the of the IRC Services Directorate
Subject: IRC – Rates of Municipal Surcharge on Taxable Profit for the 2020 Tax Period.
Economy, Finance and Taxation
The Council of Ministers approved, on May 27, the resolution that extends the situation of calamity in all continental national territory until 23:59h of 13 June 2021, introducing changes with respect to municipalities covered by each phase of deconfinement, considering the data on the incidence by county on May 26.
The Council of Ministers also approved on the same date, the resolution establishing the National Action Programme (PNA) of the National Plan for Integrated Management of Rural Fires (PNGIFR), materialising four strategic guidelines: valuing rural spaces; caring for rural spaces; changing behaviours; and managing risk efficiently.
Finally, the decree-law which reviews the regime applicable to energy efficiency management contracts to be signed between public administration services and organisms and service providers was approved. The decree-law seeks to simplify the formation of the contract, reducing the bureaucratic burden to be faced by companies and individuals who wish to collaborate with Public Administration services and organisms, promoting their capacity and the energy efficiency of the buildings and equipment they use, contributing to the reduction of consumption and emissions.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=424
Data regarding the annual evolution of Industrial Property Rights (IPR) for the last decade has been made available. Regarding applications for Trade Marks and other Distinctive Trade Signs (OSDCs), in the national and European channels there was a slight decrease compared to the last three years, while the international channel had the lowest number of applications in 2020 of the decade. In turn, the figures for IPRs in force in 2020 for Trademarks and OSCs remained within the average for the entire decade, with International Trademark IPRs recording the highest figure since 2011.
https://inpi.justica.gov.pt/en-gb/INPI-News/Annual-Evolution-of-Industrial-Property-Rights
The 33rd edition of the “BVT Ocean Energies”, published within the scope of the Iberian project between the National Institute of Industrial Property (INPI) and the Spanish Patent and Trademark Office (OEPM), is now available. It presents the statistics on international patent applications published in the 1st quarter of 2021, under the PCT (Patent Cooperation Treaty), by country of most frequent priority.
https://inpi.justica.gov.pt/Noticias-do-INPI/33%C2%AA-edicao-do-BVT-Oceanicas-ja-esta-disponivel
The European Patent Office (EPO) has released the list of 15 inventors and teams of inventors as finalists for the 2021 edition of the European Inventor Prize, which comprises five categories: Industry, Research, Non-EPO Member Countries, SMEs and Lifetime achievement. The winner of the sixth category, the People’s Prize, will be chosen by the public through voting that is already open and will close during the ceremony on 17 June 2021.
https://inpi.justica.gov.pt/en-gb/INPI-News/European-Inventor-Award-2021-finalists-announced
April 2021 saw a significant increase (51.3%) in applications for trademarks and other distinctive signs of commerce (OSDC) compared to the same period in the previous year, with a total of 2,599 applications filed in April. The same situation was seen in relation to Trademark and OSDC concessions, which recorded a 40.4% increase compared to the first four months of 2020, with 1786 concessions in the month of April alone.
https://inpi.justica.gov.pt/en-gb/INPI-News/Industrial-Property-numbers-in-April-2021
The European Union Intellectual Property Office (EUIPO) has published a call for proposals to support initiatives to raise awareness about the value and benefits of Intellectual Property (IP) and the damage caused by infringements of IP rights. The total amount of funding available for 2021 is €1,000,000 and the deadline for submissions will be 8 June 2021.
https://inpi.justica.gov.pt/en-gb/INPI-News/EUIPO-Call-for-proposals-2021
As of 19 May 2021, China’s National Institute for Intellectual Property Administration (CNIPA) has made its Trademark data available to the TMview search tool. With the addition of the CNIPA and over 32 million trademarks, TMview now contains the data of 75 participating offices and provides information and access to over 96.4 million trademarks.
https://inpi.justica.gov.pt/en-gb/INPI-News/China-joins-TMview
INPI has made available several brochures with the objective of clarifying contents regarding Industrial Property (IP), informing about the advantages and importance of IP and helping all interested parties to create a solid base of knowledge on the subjects covered by IP.
A public consultation will be held until 24 June on the potential harmonisation of substantive patent law, with the aim of establishing uniform and global standards that benefit both users and patent offices through increased cooperation between them.
https://inpi.justica.gov.pt/Noticias-do-INPI/Consulta-Publica-Questionario-sobre-o-Periodo-de-Graca
Applications for the third phase of the SME Fund, financial support granted by the EUIPO and the Commission worth 20 million euros in the form of reimbursements, closes at the end of this month.
https://inpi.justica.gov.pt/Noticias-do-INPI/Fundo-PME-Candidaturas-encerram-a-31-de-maio
E-LEGAL® NEWSLETTER – JUNE 2021
6.1. EDITORIAL – «IVAUCHER» PROGRAMME; PUBLIC UTILITY STATUS FRAMEWORK LAW; ENERGY EFFICIENCY MANAGEMENT CONTRACTS; RECOVERY AND RESILIENCE PLAN; EUROPEAN UNION COVID DIGITAL CERTIFICATE
The month of June was marked, at the legislative level, by the approval and publication, on the one hand, of the Ordinance no. 119/2021, of June 7, determined the starting date and duration of each phase of the “IVAucher” programme, created by Implementing Decree no. 2-A/2021, of May 28, in compliance with the provisions of no. 14 of article 405 of Law no. 75-B/2020, of December 31 and, on the other hand, of Law no. 36/2021, of June 14, which approved the Framework Law on Public Utility Status.
On the legislative sphere, reference should also be made to:
I) Decree-Law no. 50/2021, of June 15, which established the legal regime applicable to the formation and execution of energy efficiency management contracts to be signed between the services and organisms of the direct, indirect and autonomous Public Administration and energy service companies;
II) Decree-Law no. 53-B/2021, of June 23, which established the exceptional regime of budget execution and simplification of procedures for projects approved under the Recovery and Resilience Plan.
In the scope of case law, we highlight the Judgement of the Justice Court of June 3, Case C‑182/20, which clarified that articles 184 to 186 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation or practice whereby the initiation of insolvency proceedings in respect of an economic operator, entailing the liquidation of its assets for the benefit of its creditors, automatically places an obligation on that operator to adjust the value added tax deductions which it has made in respect of goods and services acquired before it was declared insolvent, where the initiation of those proceedings is not such as to prevent that operator’s economic activity, within the meaning of Article 9 of that directive, from being continued, in particular for the purposes of the liquidation of the undertaking concerned.
Finally, in Miscellaneous, it is worth highlighting the approval by the Council of Ministers, on June 24, of the decree-law which implements in internal legal order the European Union COVID Digital Certificate Regulations and of the decree-law that establishes the regime and defines the governance model for the promotion of technology-based innovation through the creation of Technology Free Zones (TFZ).
Decree-Law no. 40/2021, of June 1: Ensures the implementation in the internal legal order of Regulation (EEC) No. 2919/85 laying down the conditions of access to the regime reserved by the Revised Convention for Rhine Navigation for vessels belonging to the Rhine navigation.
https://dre.pt/application/conteudo/164501451
Decree-Law no. 41/2021, of June 1: Establishes the sanctioning regime applicable to the infringement of the provisions of Regulation (EC) No. 2271/96 protecting against the effects of the extra-territorial application of third-country legislation and actions based thereon or resulting therefrom.
https://dre.pt/application/conteudo/164501452
Ordinance no. 117/2021, of June 1: Approves the regulation for the classification and evaluation of information produced during the performance of duties by the entities integrated in the governmental area of agriculture, and the respective selection table, as well as the elimination record and delivery record forms.
https://dre.pt/application/conteudo/164501455
Ordinance no. 118/2021, of June 2: Approves the regulation for the classification and evaluation of information produced during the performance of duties by the entities integrated in the governmental areas of agriculture and sea and the respective selection table, as well as the forms for the elimination report and the delivery report.
https://dre.pt/application/conteudo/164586283
Organic Law no. 1/2021, of June 4: Amends the Electoral Law for the President of the Republic, clarifies and simplifies the presentation of candidacies by groups of voting citizens and ensures adequate procedures for the holding of elections for local authority bodies in the context of the COVID-19 disease pandemic, amending several laws.
https://dre.pt/application/conteudo/164590039
Council of Ministers Resolution no. 68/2021, of June 4: Approves the National Strategy for the Sea 2021-2030.
https://dre.pt/application/conteudo/164590045
Council of Ministers Resolution no. 70/2021, of June 4: Establishes the commemorations for the 50th anniversary of the 25th of April 1974 Revolution and creates the mission structure that promotes and organises them.
https://dre.pt/application/conteudo/164590047
Council of Ministers Resolution no. 70-A/2021, of June 4: Amends the measures applicable to certain municipalities within the framework of the calamity situation.
https://dre.pt/application/conteudo/164712103
Council of Ministers Resolution no. 70-B/2021, of June 4: Continues the strategy of lifting containment measures in the framework of the fight against the pandemic disease COVID-19.
https://dre.pt/application/conteudo/164712104
Decree-Law no. 42/2021, of June 7: Undertakes the second amendment to Decree-Law nr. 138/2009, of June 15th, which creates the Fund for Safeguarding Cultural Heritage.
https://dre.pt/application/conteudo/164712109
Decree-Law no. 43/2021, of June 7: Creates the Saber Fazer (Know How) Association.
https://dre.pt/application/conteudo/164712110
Decree-Law no. 44/2021, of June 7: Undertakes the first amendment to Decree-Law no. 45/2018, of 19 June, which creates the Support Fund for Tourism and Cinema.
https://dre.pt/application/conteudo/164712111
Decree-Law no. 45/2021, of June 7: Creates and regulates the programme of support to the programming of the theatres and cinetheatres of the Network of Portuguese Theatres and Cinetheatres (RTCP).
https://dre.pt/application/conteudo/164712112
Ordinance no. 119/2021, of June 7: Determines the starting date and duration of each phase of the “IVAucher” programme, created by Regulatory Decree no. 2-A/2021, of 28 May, in compliance with the provisions of no. 14 of article 405 of Law no. 75-B/2020, of December 31.
https://dre.pt/application/conteudo/164712120
Law no. 34/2021, of June 8: Amends Decree-Law no. 25/2019, of February 11, which establishes the remuneration regime applicable to the special career of senior technician in the diagnosis and therapeutic areas, as well as the rules of transition of workers to this career, and Decree-Law no. 111/2017, of August 31, which establishes the regime of the special career of senior technician in the diagnosis and therapeutic areas.
https://dre.pt/application/conteudo/164798789
Law no. 35/2021, of June 8: Approves support measures for public higher education students and amends Law no. 38/2020, of August 18.
https://dre.pt/application/conteudo/164798790
Ordinance no. 120/2021, of June 8: Defines the operation and management model of the National Urgent and Temporary Accommodation Stock Exchange, created under Decree-Law no. 26/2021, of March 31.
https://dre.pt/application/conteudo/164798793
Council of Ministers Resolution no. 71-A/2021, of June 8: Approves the National Action Programme of the National Plan for Integrated Management of Rural Fires.
https://dre.pt/application/conteudo/164798802
Decree no. 16/2021, of June 9: Approves the Amendment to the Protocol to the Convention on Long-Range Transboundary Air Pollution relating to Heavy Metals, signed in Aarhus, Denmark, on 24 June 1998, adopted in Geneva on 13 December 2012.
https://dre.pt/application/conteudo/164870233
Ordinance no. 121/2021, of June 9: Regulates: a) The electronic archiving of documents drawn up by notaries and other documents filed at the registry offices and their respective availability through a permanent notarial certificate; b) The electronic communication, by notaries, of acts to the Central Registry Office.
https://dre.pt/application/conteudo/164870237
Council of Ministers Resolution no. 74-A/2021, of June 9: Amends the measures applicable in situations of calamity, in the context of the pandemic of the disease COVID-19.
https://dre.pt/application/conteudo/164955319
Decree-Law no. 46/2021, of June 11: Amends the organic structures of the Agency for the Integrated Management of Rural Fires, I. P., the Institute for Nature Conservation and Forests, I. P., and the National Authority for Emergency and Civil Protection.
https://dre.pt/application/conteudo/164955304
Decree-Law no. 47/2021, of June 11: Undertakes the second amendment to Decree-Law no. 103/2017, of August 24, which establishes the regime for the allocation of State financial support to the visual and performing arts.
https://dre.pt/application/conteudo/164955305
Ordinance no. 122/2021, of June 11: Undertakes the first amendment to Ordinance no. 200/2020, of 19 August, and the Regulation of the Accessibility Programme for Public Services and the Public Road.
https://dre.pt/application/conteudo/164955308
Law no. 36/2021, of June 14: Approves the Framework Law of the Public Utility Status.
https://dre.pt/application/conteudo/165036155
Decree-Law no. 48/2021, of June 14: Establishes the safety of toys with regard to aluminium and formaldehyde by transposing Directives (EU) 2019/1922, 2019/1929, 2020/2088 and 2020/2089.
https://dre.pt/application/conteudo/165036158
Decree-Law no. 49/2021, of June 14: Establishes the sanctioning regime applicable to the violation of the rules on cross-border parcel delivery services.
https://dre.pt/application/conteudo/165036159
Regional Legislative Decree no. 16/2021/A, of June 14: Amends the transitional periods provided for in Law no. 76/2019, of September 2, and determines the approval of measures for the reduction of the consumption of single-use products and the promotion of reuse and recycling.
https://dre.pt/application/conteudo/165036162
Ordinance no. 122-A/2021, of June 14: Undertakes the first amendment to Ordinance no. 206/2020, of August 27, which regulates the ATIVAR.PT Internships measure, and the first amendment to Ordinance no. 207/2020, of August 27, which regulates the ATIVAR.PT Incentives measure.
https://dre.pt/application/conteudo/164955365
Law no. 36-A/2021, of June 14: Determines the renewal of the transitory imposition of the obligation to wear a mask when accessing, circulating or remaining in public spaces and public roads, extending, for the third time, the validity of Law no. 62-A/2020, of October 27.
https://dre.pt/application/conteudo/165095962
Law no. 37/2021, of June 15: Creates a measure to support electricity costs in the activities of production, storage, preservation and marketing of agricultural and livestock products, in accordance with Regulation (EU) 2019/316 of the Commission of 21 February 2019.
https://dre.pt/application/conteudo/165129786
Decree-Law no. 50/2021, of June 15: Establishes the legal regime applicable to the formation and execution of energy efficiency management contracts to be signed between the services and organisms of the direct, indirect and autonomous Public Administration and energy service companies.
https://dre.pt/application/conteudo/165129789
Decree-Law no. 51/2021, of June 15: Approves the Consular Regulation.
https://dre.pt/application/conteudo/165129790
Decree-Law no. 52/2021, of June 15: Proceeds with the third amendment to Law no. 31/2014, of May 30, which establishes the general bases of public policy for soil, spatial planning and urbanism; b) Approves the legal regime for the forced lease of rural properties that are the subject of an integrated landscape management operation.
https://dre.pt/application/conteudo/165129791
Council of Ministers Resolution no. 76/2021, of June 16: Approves the Plan Reactivate Tourism | Build the Future.
https://dre.pt/application/conteudo/165228578
Decree-Law no. 53-A/2021, of June 16: It amends several measures in the framework of the pandemic disease COVID-19.
https://dre.pt/application/conteudo/165228627
Regional Legislative Decree no. 17/2021/A, of June 17: Medium Term Guidelines 2021-2024.
https://dre.pt/application/conteudo/165228634
Regional Legislative Decree no. 18/2021/A, of June 17: Annual Regional Plan for 2021.
https://dre.pt/application/conteudo/165228635
Council of Ministers Resolution no. 76-A/2021, of June 17: Amends the measures applicable to certain municipalities within the framework of the calamity situation.
https://dre.pt/application/conteudo/165373331
Declaration of Rectification no. 18-B/2021, of June 18: Rectifies the Council of Ministers Resolution no. 70-B/2021, of June 4, which pursues the strategy of raising containment measures in the context of the struggle against the pandemic disease COVID-19.
https://dre.pt/application/conteudo/165459125
Decree-Law no. 53-B/2021, of June 23: Establishes the exceptional regime of budget execution and simplification of procedures for projects approved under the Recovery and Resilience Plan.
https://dre.pt/application/conteudo/165721068
Ordinance no. 126/2021, of June 24: Regulates the direct consultation, by judicial administrators, of the databases of the tax administration, social security, Caixa Geral de Aposentações, Salary Guarantee Fund, land registry, commercial registry, automobile registry, civil registry and other similar registries or archives.
https://dre.pt/application/conteudo/165723202
Ordinance no. 128/2021, of June 24: Amends Ordinance no. 82-C/2020 of March 31, amended by Ordinances no. 162/2020 of June 30, 218/2020, of September 16, and 302/2020 of December 24.
https://dre.pt/application/conteudo/165723204
Council of Ministers Resolution no. 77-A/2021, of June 24: Amends the measures applicable to certain municipalities within the framework of the calamity situation.
https://dre.pt/application/conteudo/165797150
Decree-Law no. 54/2021, of June 25: Amends the organization and functioning regime of the 22nd Constitutional Government.
https://dre.pt/application/conteudo/165797123
Regional Legislative Decree no. 3/2021, of June 25: Creates the Animal Provider with the mission of guaranteeing the defence and promotion of animal welfare.
https://dre.pt/application/conteudo/165797124
Council of Ministers Resolution no. 78/2021, of June 25: It approves a set of measures for autonomous and enhanced treatment in the field of pet animal welfare.
https://dre.pt/application/conteudo/165797125
Ordinance no. 129/2021, of June 25: Fifth amendment to the regulation of the Entrepreneurship and Employment Incentive System, approved by Ordinance no. 105/2017, of March 10.
https://dre.pt/application/conteudo/165797127
Ordinance no. 130/2021, of June 25: Eighth amendment to the Specific Regulations of the Human Capital Domain, approved in annex to Ordinance no. 60-C/2015, of March 2.
https://dre.pt/application/conteudo/165797128
Decree-Law n.º 54-A/2021, of June 25: It implements in national law Regulation (EU) 2021/953 on the EU Digital Certificate COVID.
https://dre.pt/application/conteudo/165865578
Declaration of Rectification no. 9/2021/A, of June 28: Rectifies Regional Legislative Decree no. 15-A/2021/A, of May 31, Budget of the Autonomous Region of the Azores for the year 2021.
https://dre.pt/application/conteudo/165865622
Regional Legislative Decree no. 10-A/2021/A, of June 28: Execution of the Budget of the Autonomous Region of the Azores for 2021.
https://dre.pt/application/conteudo/165865626
Ordinance no. 135/2021, of June 29: Establishes the temporary cash compensation to be granted to workers covered by the incentive programme for the setting up of State employees in the interior of the State.
https://dre.pt/application/conteudo/165950847
Ordinance no. 20/2021/A, of June 29: Creation of the figure of the Regional Animal Provider.
https://dre.pt/application/conteudo/165950849
Decree-Law no. 56/2021, of June 30: Transposes Directive (EU) 2019/2177 on insurance and reinsurance activity and Directive (EU) 2020/1504 on collaborative finance providers.
https://dre.pt/application/conteudo/166099792
Ordinance no. 136/2021, of June 30: Undertakes the first amendment to Ordinance no. 166/2019, of May 29, which approved the statutes of the Institute for Nature Conservation and Forests, I. P.
https://dre.pt/application/conteudo/166099797
Ordinance no. 137/2021, of June 30: Undertakes the first amendment to Ordinance no. 358/2019, of October 8, regulating electronic communications between the enforcement agent and the Social Security, the Salary Guarantee Fund and the General Retirement Fund when (Caixa Geral de Aposentações) carrying out adjudications and between the judicial courts and these entities when obtaining information from the databases of these entities and when making deductions of amounts in social benefits and pensions.
https://dre.pt/application/conteudo/166099798
Ordinance no. 138/2021, of June 30: Defines the methodology to calculate the remuneration rate to be applied to the intertemporal transfer of allowed revenues regarding the over costs with the acquisition of electricity from producers in special regime.
https://dre.pt/application/conteudo/166099799
Ordinance no. 138-A/2021, of June 30: Regulates the Framework Law of the Public Utility Status, approved in annex to Law no. 36/2021, of 14 June.
https://dre.pt/application/conteudo/166025458
Ordinance no. 138-B/2021, of June 30: Establishes the exceptional co-payment scheme for rapid antigen tests (TRAg) for professional use carried out on National Health Service (NHS) users.
https://dre.pt/application/conteudo/166158054
Ordinance no. 138-C/2021, of June 30: Defines the model and complementary elements that applications must obey in order to finance the Support Programme for Access to Housing and the National Urgent and Temporary Accommodation Fund.
6.3.1. Court of Justice of the European Union
Judgement of the Justice Court of June 3, Case C-931/19: Reference for a preliminary ruling. Taxation. Value added tax (VAT). Directive 2006/112/EC. Articles 43 and 45. Directive 2006/112/EC, as amended by Directive 2008/8/EC. Articles 44, 45 and 47. Provision of services. Point of reference for tax purposes. Concept of a ‘fixed establishment’. Letting a property in a Member State. Owner of a property with its registered office on the island of Jersey.
Summary:
“A property which is let in a Member State, in the circumstance where the owner of that property does not have his or her own staff to perform services relating to the letting does not constitute a fixed establishment within the meaning of Article 43 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and of Articles 44 and 45 of Directive 2006/112, as amended by Council Directive 2008/8/EC of 12 February 2008.”.
https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62019CJ0931
Judgement of the Justice Court of June 3, Case C-182/20: Reference for a preliminary ruling. Value added tax (VAT). Directive 2006/112/EC. Right to deduct. Adjustment of deductions. Insolvency proceedings. National legislation providing for automatic refusal to allow deduction of VAT in respect of taxable transactions that occurred prior to the initiation of those proceedings.
Summary:
“Articles 184 to 186 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation or practice whereby the initiation of insolvency proceedings in respect of an economic operator, entailing the liquidation of its assets for the benefit of its creditors, automatically places an obligation on that operator to adjust the value added tax deductions which it has made in respect of goods and services acquired before it was declared insolvent, where the initiation of those proceedings is not such as to prevent that operator’s economic activity, within the meaning of Article 9 of that directive, from being continued, in particular for the purposes of the liquidation of the undertaking concerned.”.
https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62020CJ0182
Judgement of the Constitutional Court no. 418/2021 of June 15, Case no. 1101/2020:
The Public Prosecutor’s Office filed an appeal to the Constitutional Court, requesting the assessment of the rule contained in article 248(4) of the Insolvency and Corporate Recovery Code (CIRE), in the part that it prevents debtors who, having been discharged of their remaining liabilities and whose insolvent estate and disposable income were insufficient to fully pay the costs and expenses of the discharge proceedings, from obtaining legal aid in the form of a waiver of the court fee and other procedural costs, without taking into account their specific economic situation, and the Constitutional Court decided:
“To declare, with mandatory general force, the unconstitutionality, due to the violation of Articles 20(1) and 13(2) of the Constitution, of the rule set out in Article 248(4) of the Insolvency and Company Recovery Code, in the part in which it prevents debtors who, having obtained exoneration of the remaining liabilities and whose insolvent estate and disposable income were insufficient to fully pay the costs and expenses of the exoneration proceedings, without taking into account their specific economic situation, from obtaining legal aid in the form of a waiver of the judicial fee and other procedural costs.”
https://www.tribunalconstitucional.pt/tc/acordaos/20210418.html
Judgement of the Coimbra Court of Appeal, of June 1, Case no. 3553/20.3T8CBR.C1: Suspension of corporate resolutions. Precautionary procedure. Presuppositions. Burden of allegation and proof. Periculum in mora.
Summary:
“1. – The precautionary procedure for suspension of corporate resolutions (Article 380, no. 1 of the NCPCiv.) depends on the fulfilment of three cumulative assumptions: the applicant is a partner of the association or company that made the resolution; that resolution is contrary to the law, the Articles of Association or the company’s memorandum of association; and that an appreciable damage may result from its execution.
2. – The applicant of the injunction procedure shall have the burden of alleging and proving the concrete facts in order to demonstrate, even in terms of summary evidence, the periculum in mora, the existence of the danger of damage and its gravity.
3. – A social expulsion resolution (of a company or association), taking into account its nature and its practical and legal effects, causes a total removal of the excluded person, who is prevented from exercising any rights as a member of the collective entity (as to resolutions, monitoring/information and control/supervision).
4. – Which advises the adoption of special precautions as to the danger – and its prevention – of appreciable damage in the case of deliberation on the exclusion of a partner or associate, as it is a situation that typically involves an aggravated risk for the excluded party, as he/she remains unaware of the management and direction of the collective entity.
5. – As this is an association of acknowledged public interest, with more than 500 students, that has made significant real estate acquisitions, there is a climate of conflict between associates and the expelled associate is prevented, for this reason, from scrutinising the acquisitions and management of the corporate body, it is necessary to conclude, in a precautionary prognosis, by the possibility of appreciable damage for the purposes of suspension of that expelling resolution“.
Judgement of the Lisboa Court of Appeal, of June 17, Case no. 25713/19.0T8LSB.L1-2: Lease contract. Penalty clause. Prohibited clauses. Early termination of contract.
Summary:
“Also in the lease contract [as in consumer credit contracts, leasing contracts, long term rental contracts, contracts for the supply of goods, service contracts and lift maintenance contracts, among others, with the necessary adaptations] it is prohibited, as being abusive (art. 19/c of the RJCCG), and therefore null and void, the general contractual term (clause 16/1 of the contract between GR-SA and the plaintiff, referred to as “classical lease”) which provides, by way of penalty clause, that, “in the event of early termination of the contract, the lessor may demand an amount equivalent to all rents that would have been due until the end of the contract”, since, in essence, it provides for a payment without consideration, calling into question the synallagm existing between them“.
6.3.4. Administrative and Tax Courts
Judgement of the Supreme Administrative Court, of June 9, Case no. 0953/16.7BEBRG: Social Security contributions. Prescription. Citation. Lasting effect.
Summary:
“I – With regard to Social Security debts (contributions or quotations), and respective interest for late payment, the statute of limitations was ten years (art.14 of Decree-Law 103/80 of 9/3; art.53, no.2 of Law 28/84 of 14/8), being the limitation period currently five years, calculated from the date on which the same obligation should have been fulfilled, whereby the limitation period is interrupted by any administrative action, carried out with the knowledge of the party responsible for the payment, which leads to the payment or collection of the debt, namely the commencement of a tax enforcement procedure (cf, Article 63, paragraphs 2 and 3 of Law 17/2000, of 8/8; Article 49, paragraphs 1 and 2 of Law 32/2002, of 20/12; Article 60 of Law 4/2007, of 16/1; Article 187 of the Social Security Welfare Contributions Code).
II – The statute of limitations for debts owed to the Social Security System is subsidiarily applicable to the regime provided for in the LGT, in accordance with the provisions of Article 3(a) of the current Code of Contributory Regimes of the Social Security Welfare System.
III – The tax laws provide for facts to which interruptive effects of the tax liability are attributed, and thus there is no need to resort to Civil Code rules as regards the determination of interruptive facts. However, the effects of the interruption of the statute of limitations are not completely regulated and, as such, the Civil Code must be applied subsidiarily.
IV – With these assumptions, the application of the regime consecrated in art.327, no.1, of the Civil Code (applicable normative “ex vi” of art.2, d) of the LGT), is legal in relation to the interruptive act that is embodied in the summons in tax enforcement proceedings, which has a long-lasting effect as the new limitation period does not start to run until the decision terminating the proceedings becomes final and unappealable, given that in tax enforcement proceedings the default declaration provided for in Article 272 of the CPCT should also be considered the same as the decision terminating the proceedings.
V – The jurisprudence of this Court also goes in the sense that the regime contained in article 49, of the LGT, as well as the subsidiary application of the regime consecrated in the aforementioned article 327, no.1, of the Civil Code, are applicable to the examination of the statute of limitations for debts owed to the Social Security“.
Judgement of South Administrative Central Court, of June 9, Case no. 1162/16.0BESNT: IRC – Company in liquidation. Economic activity.
Summary:
“I – Companies in liquidation are subject to the regime provided for in IRC.
II – They are subject to IRC when they exercise an economic activity.
III – If no economic activity occurs there may be no place for taxation, due to the inexistence of a taxable event, and the rules of art. 79 et seq. of the IRC Code do not apply to the liquidation of assets of the insolvent estate”.
Monographs and Periodic Publications
Paula Quintas, Hélder Quintas, Código do Trabalho – Anotado e Comentado, 6ª Edição, Almedina, junho 2021
Cristina M. Araújo Dias, Responsabilidade por Dívidas do Casal – Volume 1, Almedina, junho 2021
Tiago Serrão (Coord.), José Duarte Coimbra (Coord.), Contencioso Administrativo Especial, Almedina, junho 2021
José Manuel Sérvulo Correia, Francisco Paes Marques, Noções de Direito Administrativo – Volume 1, 2ª Edição, Almedina, junho 2021
Ana Perestrelo de Oliveira, Desvinculação Programada do Contrato, Almedina, junho 2021
Cristina Araújo Dias (Coord.), João Nuno Barros (Coord.), Rossana Martingo Cruz (Coord.), Regime Geral do Processo Tutelar Cível – Anotado, Almedina, junho 2021
António Paulo Santos, Victor Castro Rosa, Os Direitos dos Produtores Audiovisuais Independentes em Portugal e na Europa, Almedina, junho 2021
Cristina M. Araújo Dias, Responsabilidade por Dívidas do Casal – Volume 2, Almedina, junho 2021
Mário Aroso de Almeida, Carlos Alberto Fernandes Cadilha, Comentário ao Código de Processo nos Tribunais Administrativos, 5ª Edição, Almedina, junho 2021
6.4.2. Generic Guidelines & Cia
Order no. 191, of 15.06.2021, by order of the Deputy Secretary of State of the Tax Affairs
Subject: Adjustment of the fiscal calendar of 2021. https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/Despachos_SEAF/Documents/Despacho_SEAAF_191_2021_XXII.pdf
Circulate Letter no. 30237, of 22.06.2021, by order of the Deputy Director-General of the Tax Management Area – IVA
Subject: IVA – alteration of the rates applicable to operations regarded as having been carried out in the Autonomous Region of the Azores.
Circulate Letter no. 30238, of 25.06.2021, by order of the Deputy Director-General of the Tax Management Area – IVA
Subject: IVA – new rules applicable to e-commerce: distance selling.
Circulate Letter no. 30239, of 25.06.2021, by order of the Deputy Director-General of the Tax Management Area – IVA
Subject: IVA – new rules on the IVA treatment of e-commerce via electronic interfaces.
Circulate Letter no. 30240, of 25.06.2021, by order of the Deputy Director-General of the Tax Management Area – IVA
Subject: IVA – new one-stop shop scheme.
Economy, Finance and Taxation
The Council of Ministers approved, on June 24, the resolution that extends the situation of calamity in all continental national territory until 11:59 pm on July 11, 2021, changing the measures applicable to certain municipalities under the disaster situation.
The Council of Ministers also approved, on the same date, the decree-law that implements in the internal legal order the Regulations relating to the Digital Certificate COVID of the European Union, an interoperable certificate that contains information about the vaccination, test results or recovery of the holder, issued in the context of the pandemic COVID-19 disease.
Finally, it was approved the decree-law that establishes the regime and defines the governance model for the promotion of technology-based innovation through the creation of Technology Free Zones (TFZ). The implementation of TFZs aims to boost innovation and the creation of a true digital society, enabling the speeding up of research, demonstration and testing processes in the country and, consequently, its competitiveness and attractiveness for research and innovation projects.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=428
According to the study “Cidadãos Europeus e Propriedade Intelectual” (PI), conducted by the European Union Intellectual Property Office (EUIPO) between 1 June and 6 July 2020, a decrease in IP infringements in the European Union was observed from 7% in 2017 to 5% in 2020 for the intentional purchase of counterfeits, and from 10% in 2017 to 8% in 2020 for intentional piracy.
https://inpi.justica.gov.pt/Noticias-do-INPI/Cidadaos-Europeus-e-a-Propriedade-Intelectual
World Anti-Counterfeiting Day was celebrated on June 5, with the aim of raising society’s awareness of the phenomenon of counterfeiting and piracy and the economic damage caused by this type of illicit activity.
https://inpi.justica.gov.pt/Noticias-do-INPI/Dia-Mundial-Anti-Contrafacao-3
June 9 was International Archives Day, established by the General Assembly of the International Council on Archives (CIA), held in Quebec in November 2007. This date was chosen because it was on June 9, 1948, that UNESCO created the CIA.
https://inpi.justica.gov.pt/Noticias-do-INPI/Dia-Internacional-dos-Arquivos
The new Table of Industrial Property Fees was published in the Official Journal of the Republic on June 8, updating the fees for the various types of Industrial Property for the year 2021.
https://inpi.justica.gov.pt/Noticias-do-INPI/Tabela-de-Taxas-2021
The data of IPR applications and grants registered in the month of May 2021 were published, with highlight to the growth trend in the number of grants for Trade Marks and Other Distinctive Signs of Commerce (OSDC) compared to the same period in the previous year, with an increase of 33.2% compared to the first five months of 2020.
https://inpi.justica.gov.pt/Noticias-do-INPI/Direitos-de-Propriedade-Industrial-de-maio-de-2021
Through Notice no. 10859/2021, of 14 June, the competition for the aptitude test for recognition and/or acquisition of the quality of official industrial property agent (AOPI) was opened until 15 October.
https://inpi.justica.gov.pt/Noticias-do-INPI/Concurso-para-novos-AOPI-2
The University of Lisbon Law School (FDUL), in partnership with the Portuguese Intellectual Property Association (APDI), will hold the Lisbon International Summer Course on Intellectual Property from 5 to 9 July, online, with the theme “The State of the Issues in 2021”.
https://inpi.justica.gov.pt/Noticias-do-INPI/Curso-Internacional-de-Verao-online-de-PI-de-Lisboa
The European Patent Office (EPO) has announced the winners of the European Inventor Award 2021, with several contributions recognised in the areas of nasal medicines, DNA-based data storage, nano materials in dentistry, solar cells for self-charging devices, organic semiconductors and advances in tissue engineering.
https://inpi.justica.gov.pt/Noticias-do-INPI/Premio-Inventor-Europeu-2021
The conclusions on Intellectual Property (IP) policy that the Council of the EU adopted were published, addressing: (i) the role that IP plays in helping to fight the pandemic of COVID-19; (ii) the importance of IP for SMEs and their economic recovery, as well as for the green and digital transitions; (iii) the need for further action against IP infringements, in particular counterfeiting and piracy; and (iv) strengthening support for European SMEs and the protection and valorisation of their IPR and trade secrets as an essential factor for their competitiveness, innovation, value creation and sustainability.
https://inpi.justica.gov.pt/Noticias-do-INPI/Papel-da-PI-na-luta-contra-a-pandemia-Covid-19
As of 1 July 2021, SMEs will be able to apply for the 4th funding window to the European SME Fund, which will close on 31 July. The Fund offers financial support in the form of reimbursement of 50% of the expenses incurred in filing one or more applications for the registration of trademarks and designs (application fees), up to a maximum amount of €1,500.00 per company.
https://inpi.justica.gov.pt/Noticias-do-INPI/Fundo-Europeu-para-as-PME-Abertas-as-Candidaturas
E-LEGAL® NEWSLETTER – JULY 2021
7.1. EDITORIAL – CAPITALISATION AND RESILIENCE FUND; EXTENSION OF BANK MORATORIA; MSE SUPPORT LINE; TECHNOLOGICAL FREE ZONES
On the legislative level, July was characterized by the approval and publication, on the one hand, of Decree-Law no. 63/2021, of July 28, which created a capitalisation fund for commercial companies, called the Capitalisation and Resilience Fund and, on the other hand, of Law no. 50/2021, of July 30, which extended bank moratoria, amending Decree-Law 10-J/2020 of March 26.
Also worthy of note at the legislative level are:
I) Decree-Law no. 64/2021, of July 28, which approved the creation of the Treasury Support Line for Micro and Small Enterprises, called “MSE Support Line”, for the purpose of supporting the treasury of micro and small enterprises in a situation of business crisis;
II) Decree-Law no. 67/2021, of July 30, which established the regime and defined the governance model for promoting technology-based innovation through the creation of technological free zones.
In the scope of case law, it is worth mentioning the Judgement of the Constitutional Court of 14 July, Case no. 356/2021, which declared the unconstitutionality, with mandatory general force, of the rules contained in article 3 of Law no. 16/2021, of 7 April, in article 2 of Law no. 16/2021, of 7 April and in article 2 of Law no. 15/2021, of 7 April. However, the Court preserved the effects produced by those rules until the publication of the abovementioned judgment in the Diário da República.
Finally, regarding Miscellaneous, we highlight the approval, on 22 July, by the Council of Ministers: i) of the draft law that creates the possibility of fixing maximum marketing margins for simple fuels; ii) of the decree-law that establishes the legal regime applicable to the performance, through videoconference, of authentic acts, terms of authentication of private documents and acknowledgements, seeking to respond to the demand for online services, given the restrictions imposed on the practice of face-to-face acts due to the Covid-19 disease pandemic.
Ordinance no. 138-E/2021, of July 1: Approves the models of the supporting documents for the attribution of the status of victim and of the status of especially vulnerable victim, including for the crime of domestic violence.
https://dre.pt/application/file/a/166271277
Ordinance no. 138-F/2021, of July 1: First amendment to Ordinance no. 48/2021, of 4 March, which establishes the procedures for advancing European funds from budget entry and assumption of pluriannual charges.
https://dre.pt/application/file/a/166271278
Ordinance no. 138-G/2021, of July 1: Establishes the requirements for the assessment of indoor air quality in commercial and service buildings, including protection thresholds, reference conditions and conformity criteria, and the respective methodology for measuring pollutants and monitoring compliance with the approved standards.
https://dre.pt/application/file/a/166298786
Ordinance no. 138-H/2021, of July 1: Regulates the activities of the technicians and the competences of the managing entity of the Energy Certification System for Buildings and sets the values for the registration of energy certificates.
https://dre.pt/application/file/a/166298787
Ordinance no. 138-I/2021, of July 1: Regulates the minimum energy performance requirements for the building envelope and technical systems and their application according to the type of use and specific technical characteristics.
https://dre.pt/application/file/a/166298788
Council of Ministers Resolution no. 86-A/2021, of July 1: Amends the measures applicable to certain municipalities within the framework of the calamity situation.
https://dre.pt/application/file/a/166304077
Decree-Law no. 56-A/2021, of July 6: Extends extraordinary support measures for workers and companies in the context of the COVID-19 pandemic disease.
https://dre.pt/application/file/a/166579409
Declaration of Rectification no. 21-A/2021, of July 6: Rectifies Decree-Law no. 30/2021, of May 7, which regulates Law no. 54/2015, of June 22, with regard to mineral deposits.
https://dre.pt/application/file/a/166579410
Decree no. 18/2021, of July 7: Approves the Cooperation Agreement between the Portuguese Republic and the Republic of India on Maritime Transport and Ports, signed in New Delhi on 14 February 2020.
https://dre.pt/application/file/a/166304121
Decree-Law no. 56-B/2021, of July 7: Amends the exceptional regime for situations of late payment of rent and establishes the guarantee of supply of essential services, within the scope of the COVID -19 disease pandemic.
https://dre.pt/application/file/a/166663583
Ordinance no. 141/2021, of July 8: First amendment to Ordinance no. 298/2019, of September 9, establishing complementary national rules for the recognition of producer organisations and their associations and marketing organisations for forest products.
https://dre.pt/application/file/a/166667782
Ordinance no. 142/2021, of July 8: Defines the principles of action and duties of the managing entities (EG), the rules applicable to the specifications and traditional terms, and the rules for the use and marketing of products entitled to the Designation of Origin (DO) and Geographical Indication (GI) of the wine sector.
https://dre.pt/application/file/a/166667783
Ordinance no. 142-B/2021, of July 8: Approves the Regulation of the REACTIVATE SPORTS measure of the Support Fund for the Recovery of Physical and Sporting Activity in the context of response to the pandemic disease COVID-19.
https://dre.pt/application/file/a/166790238
Declaration of Rectification no. 22/2021, of July 9: Rectifies the Law no. 36/2021, of June 14 – “Approves the framework law of the public utility status”.
https://dre.pt/application/file/a/166667863
Declaration of Rectification no. 23/2021, of July 9: Rectifies Ordinance no. 126/2021, of June 24, which regulates the direct consultation, by judicial administrators, of the databases of the tax administration, social security, Caixa Geral de Aposentações, Salary Guarantee Fund, land registry, commercial registry, automobile registry, civil registry and other similar registries or archives.
https://dre.pt/application/file/a/166667865
Ordinance no. 143/2021, of July 9: Amends the Regulations of the Programme of Conclusion or Extending Cooperation Agreements for the Development of Social Responses, provided for in article 6 of Ordinance no. 100/2017, of March 7.
https://dre.pt/application/file/a/166667866
Ordinance no. 144/2021, of July 9: Extends until 31 October 2021 the deadline for submitting accounts for the year 2020 to the services of the Institute of Social Security, I. P.
https://dre.pt/application/file/a/166667867
Decree-Law no. 56-C/2021, of July 9: Amends the regime of administrative offences within the scope of the situation of calamity, contingency and alert.
https://dre.pt/application/file/a/166968169
Council of Ministers Resolution no. 91-A/2021, of July 9: Amends the measures applicable to certain municipalities within the framework of the calamity situation.
https://dre.pt/application/file/a/166968170
Decree-Law no. 57/2021, of July 13: Amends the legal regime of the national road haulage of goods contract.
https://dre.pt/application/file/a/166983617
Decree-Law no. 58/2021, of July 13: Revokes the Martins Sarmento Foundation.
https://dre.pt/application/file/a/166983618
Ordinance no. 146/2021, of July 13: Approves the Regulation on Arts Support Programmes, under the scope of the regime for State financial support to the arts.
https://dre.pt/application/file/a/166983619
Decree-Law no. 59/2021, of July 14: Establishes the regime applicable to the availability and disclosure of telephone lines for consumer contact.
https://dre.pt/application/file/a/167285481
Decree-Law no. 60/2021, of July 14: It ensures the implementation of Regulation (EU) 2020/740 on the labelling of tyres regarding fuel efficiency and other parameters.
https://dre.pt/application/file/a/167285482
Ordinance no. 147/2021, of July 14: Creates the Amadora Land and Commercial Registry Office, by merging the 1st Amadora Land Registry Office, which includes the commercial registry of the entire municipality of Amadora, and the 2nd Amadora Land Registry Office, which are extinct.
https://dre.pt/application/file/a/167285483
Ordinance no. 149/2021, of July 15: Establishes the conditions for officious verification, by the IEFP, I. P., of the withdrawal foreseen in no. 2 of article 8-B of Ordinance no. 170-A/2020, of 13 July.
https://dre.pt/application/file/a/167147929
Decree-Law no. 60-A/2021, of July 15: Allows the availability of rapid antigen tests in the form of self-tests in supermarkets and hypermarkets.
https://dre.pt/application/file/a/167361413
Council of Ministers Resolution no. 92-A/2021, of July 15: Amends the measures applicable to certain municipalities within the framework of the disaster situation.
https://dre.pt/application/file/a/167361414
Declaration of Rectification no. 24-A/2021, of July 16: Rectifies the Council of Ministers Resolution no. 92-A/2021, of July 15, which amends the measures applicable in a situation of calamity, in the context of the pandemic disease COVID -19.
https://dre.pt/application/file/a/167651648
Council of Ministers Resolution no. 93/2021, of July 19: Approves the draft investment tax contracts to be entered into between the Portuguese State and several commercial companies.
https://dre.pt/application/file/a/167615523
Assembly of the Republic Resolution no. 209/2021, of July 20: Approves the Agreement between the Portuguese Republic and the Community of Portuguese Speaking Countries revising, in tax matters, the Agreement between the Portuguese Government and the Community of Portuguese Speaking Countries regarding the Establishment of the Headquarters of the Community in Portugal, signed in Lisbon on July 3, 1998.
https://dre.pt/application/file/a/167839821
Council of Ministers Resolution no. 94/2021, of July 20: Authorises the expenditure related to the financial support resulting from the signing of association contracts.
https://dre.pt/application/file/a/167839822
Declaration of Rectification no. 25/2021, of July 21: Rectifies Law no. 30/2021, of May 21, which “Approves special measures for public contracting and amends the Public Contracts Code, approved in annex to Decree-Law no. 18/2008, of January 29, the Procedure Code for Administrative Courts, approved in annex to Law no. 15/2002, of February 22, and Decree-Law no. 200/2008, of October 9”.
https://dre.pt/application/file/a/167924853
Declaration of Rectification no. 26/2021, of July 21: Rectifies Ordinance no. 136/2021, of June 30, which makes the first amendment to Ordinance no. 166/2019, of May 29, which approved the Statutes of the Institute of Nature Conservation and Forests, I. P.
https://dre.pt/application/file/a/167924857
Ordinance no. 157/2021, of July 22: Amends the recapitulative statement referred to in line i) of no. 1 of article 29 of the VAT Code and line c) of no. 1 of article 30 of the VAT System in Intra-Community Transactions, as well as the corresponding instructions for completion, providing for the registration, by certified accountants, of the determining fact of a situation of fair impediment of short duration.
https://dre.pt/application/file/a/168043708
Ordinance no. 158/2021, of July 22: Amends the statement of the request for prior authorisation in the adjustment procedure foreseen in articles 78-B and 78-C of the VAT Code, as well as the respective instructions for filling in, foreseeing the registration, by certified accountants, of the determining fact of a situation of fair impediment of short duration.
https://dre.pt/application/file/a/168043709
Ordinance no. 159/2021, of July 22: Amends the periodic VAT declaration, annex R and respective instructions for completion, providing for the registration, by certified accountants, of the determining fact of a fair impediment of short duration, and the declaration of values within the scope of the taxable person inversion rule applicable to the acquisition of cork, timber, pine cones and pine nuts with shell.
https://dre.pt/application/file/a/168043710
Council of Ministers Resolution no. 96-A/2021, of July 22: Amends the measures applicable to certain municipalities within the framework of the calamity situation.
https://dre.pt/application/file/a/168203888
Law no. 48/2021, of July 23: Prevents the duplication of fines related to the cleaning of fuel management networks in forest areas, amending Law no. 75-B/2020, of 31 December – State Budget for 2021.
https://dre.pt/application/file/a/168203879
Law no. 49/2021, of July 23: Includes new psychoactive substances in the definition of drugs, transposing Commission Delegated Directive (EU) 2021/802, of 12 March 2021, and amending the Decree-Law 15/93, of January 22, which approves the legal regime applicable to the trafficking and consumption of narcotics and psychotropic substances.
https://dre.pt/application/file/a/168203880
Ordinance no. 160/2021, of July 23: Establishes a temporary and specific regime of exemption from the waste management tax (TGR) applicable to the management of waste deposited in the lands of the former Quimiparque, in Barreiro, and the former National Steelworks, in Seixal, within the scope of the actions to solve the respective environmental liabilities.
https://dre.pt/application/file/a/168203881
Decree-Law no. 62/2021, of July 26: It ensures the implementation in the internal legal order of Regulation (EU) No 2019/1148 on the marketing and use of explosives precursors.
https://dre.pt/application/file/a/168291466
Regulatory Decree no. 4/2021, of July 26: Amends the rules applicable to the licensing of facilities, shooting ranges and shooting fields for the practice of shooting with firearms.
https://dre.pt/application/file/a/168291467
Ordinance no. 161/2021, of July 26: Third amendment to Ordinance no. 390/2019, of 29 October (Fourth amendment to Ordinance no. 224/2015, of 27 July – sets out the legal framework for the prescription and dispensation of medicines and health products and defines the information obligations to be provided to users).
https://dre.pt/application/file/a/168291468
Decree-Law no. 63/2021, of July 28: Creates the Companies Capitalisation Fund.
https://dre.pt/application/file/a/168399703
Decree-Law no. 64/2021, of July 28: Approves the creation of the Treasury Support Line for Micro and Small Enterprises.
https://dre.pt/application/file/a/168399704
Ordinance no. 164-A/2021, of July 29: Makes the first amendment to Ordinance no. 138-B/2021, of June 30, which establishes an exceptional and temporary co-payment regime for Rapid Antigen Tests (TRAg) for professional use.
https://dre.pt/application/file/a/168561881
Ordinance no. 163/2021, of July 29: First amendment to Ordinance no. 281/2019, of August 30, establishing restrictions on the road circulation of heavy automobiles transporting dangerous goods in cisterns.
https://dre.pt/application/file/a/168561888
Ordinance no. 164/2021, of July 29: Ordinance extending the alterations of the collective contract between ACIRO – Associação Comercial, Industrial e Serviços da Região Oeste and CESP – Sindicato dos Trabalhadores do Comércio, Escritórios e Serviços de Portugal and others.
https://dre.pt/application/file/a/168561889
Law no. 50/2021, of July 30: Extends bank moratoria, amending Decree-Law 10-J/2020 of March 26.
https://dre.pt/application/file/a/168707077
Law no. 51/2021, of July 30: National survey on food waste in Portugal.
https://dre.pt/application/file/a/168707078
Decree-Law no. 65/2021, of July 30: Regulates the Legal Framework for Cyberspace Security and defines the cybersecurity certification obligations in implementation of Regulation (EU) 2019/881 of the European Parliament of 17 April 2019.
https://dre.pt/application/file/a/168707080
Decree-Law no. 66/2021, of July 30: Creates the social tariff for the supply of broadband Internet access services.
https://dre.pt/application/file/a/168707081
Decree-Law no. 67/2021, of July 30: Establishes the regime and defines the governance model for the promotion of technology-based innovation through the creation of technology free zones.
https://dre.pt/application/file/a/168707082
Decree-Law no. 69/2021, of July 30: It bans the placing on the market of certain cosmetic products and detergents containing plastic microspheres.
https://dre.pt/application/file/a/168707084
Ordinance no. 165/2021, of July 30: First amendment to Ordinance no. 1054/2009, of September 16, which sets the value of the fees for the services provided by the National Authority for Emergency and Civil Protection, under the legal regime of fire safety in buildings.
https://dre.pt/application/file/a/168707085
Ordinance no. 166/2021, of July 30: Extraordinary support for the progressive resumption of activity in companies in a situation of business crisis.
https://dre.pt/application/file/a/168707086
Council of Ministers Resolution no. 101-A/2021, of July 30: Amends the measures applicable in a situation of calamity, in the context of the pandemic of the disease COVID-19.
https://dre.pt/application/file/a/168788565
7.3.1. Court of Justice of the European Union
Judgement of the Justice Court of July 1, Case C-521/19: Reference for a preliminary ruling. Taxation. Value added tax (VAT). Directive 2006/112/EC. Tax inspection. Supply of services as an activity of an agent for performing artists. Transactions subject to VAT. Transactions not declared to the tax authority and not invoiced. Fraud. Reconstitution of the taxable amount for income tax purposes. Principle of VAT neutrality. Inclusion of VAT in the reconstituted taxable amount.
Summary:
“Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in particular Articles 73 and 78 thereof, read in the light of the principle of neutrality of value added tax (VAT), must be interpreted as meaning that, where taxable persons for VAT purposes, by fraud, have not indicated the existence of the transaction to the tax authority, issued invoices or shown the income generated during that transaction in a direct tax declaration, the reconstitution, as part of an inspection of that declaration, of the amounts paid and received during the transaction at issue by the tax authority concerned must be regarded as a price already including VAT, unless, under national law, the taxable persons have the possibility of subsequently passing on and deducting the VAT at issue, notwithstanding the fraud.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0521
Judgement of the Justice Court of July 8, Case C-695/19: Reference for a preliminary ruling. Directive 2006/112/EC. Value added tax (VAT). Exemptions. Article 135(1)(a). Definition of ‘insurance’ transactions and of ‘related services performed by insurance brokers and insurance agents’. Article 174(2). Right to deduction. Proportional deduction. Extended warranties on household electrical appliances and other computer and telecommunications equipment. Definition of ‘financial transactions’.
Summary:
“Article 174(2)(b) and (c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Article 135(1) of that directive, must be interpreted as meaning that it does not apply to transactions involving intermediation in the sale of warranty extensions that are performed by a taxable person in the course of its main activity consisting in the sale to consumers of household electrical appliances and other computer and telecommunications equipment, with the consequence that the amount of turnover relating to those transactions must not be excluded from the denominator of the fraction used to calculate the deductible proportion referred to in Article 174(1) of that directive.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0695
Judgement of the Constitutional Court no. 545/2021 of July 14, Case no. 356/2021:
The Prime Minister has requested, under article 281, no. 2, paragraph c) of the Constitution, a declaration of unconstitutionality, with general binding force, of: a) Article 3 of Law no. 16/2021, of April 7; b) Article 2 of Law no. 16/2021; c) Article 2 of Law no. 15/2021, of April 7. The Prime Minister also requested, on a subsidiary basis, the declaration of illegality, with general mandatory force, of the same rules.
After examining the request, the Constitutional Court decided:
“a) Not to declare the unconstitutionality of the rule contained in article 3 of Law no. 16/2021 of April 17, insofar as it adds article 4-C to Decree-Law no. 8-B/2021 of January 22 and, through this, amends article 23, nos. 7 and 8, and article 24, nos. 7 and 8, both of Decree-Law no. 10-A/2020 of March 13;
b) Not to declare the unconstitutionality of the rule in article 2 of Law no. 16/2021, of April 7, insofar as it introduces a subparagraph b) of article 1 of Decree-Law no. 8-B/2021, of January 22;
c) Declare the unconstitutionality, with mandatory general force, of the rule contained in article 3 of Law 16/2021, of April 7, in the part in which it adds article 4-C to Decree-Law 8-B/2021, of January 22 and, through this, amends numbers 2 and 3 of article 24 of Decree-Law 10-A/2020, of March 13, for violation of the provisions of article 167 (2) and 169 (1) of the Constitution;
d) Declare the unconstitutionality, with mandatory general force, of the rule contained in article 2 of Law no. 16/2021, of April 7, in the part in which it amends no. 2 of article 3 of Decree-Law no. 8-B/2021, of January 22, for violation of the provisions of no. 2 of article 167 of the Constitution;
e) Declare the unconstitutionality, with mandatory general force, of the rule contained in article 2 of Law no. 15/2021, of April 7, which altered, in parliamentary appraisal, no. 6 of article 3 of Decree-Law no. 6-E/2021, of January 15, for violation of the provisions of no. 2 of article 167 of the Constitution;
f) To safeguard, pursuant to article 282 (4) of the Constitution, for reasons of legal certainty and equity, the effects produced until the publication of this judgement in the Diário da República by the rules whose declaration of unconstitutionality is made in subparagraphs c), d) and e).”.
https://www.tribunalconstitucional.pt/tc/acordaos/20210545.html
Judgement of the Lisbon Court of Appeal of July 1, Case no. 21057/19.5T8LSB.L1-8: Special eviction procedure. Eviction. Opposition. Legal aid. Provision of guarantee in the amount of the rents. Exemption.
Summary:
“A defendant who benefits from legal aid is, for the purposes of filing an opposition to the special eviction procedure, exempted from providing the security referred to in Article 15°F, paragraph 3 of the NRAU”.
Judgement of the Guimarães Court of Appeal of July 1, Case no. 2269/20.5T8BRG-A.G1: Passive legitimacy. Transmission of contractual position. Merger of companies. Limitation of labour credits
Summary:
“The writ of summing up in the part in which it declares the defendant a legitimate party does not allow an immediate appeal.
If the defendant acquired both ownership of the employing company (by merger) and operation of the establishment where the worker performed duties, this means that the rights and obligations as an incorporating company were transferred to it, including debts for remuneration for working hours and overtime work, even though some may have fallen due some 20 years previously when the action was brought.
While the employment relationship is maintained, the start of the limitation period for credit rights is suspended, which only begins on the day following that on which the contractual relationship is actually terminated“.
Judgement of the Coimbra Court of Appeal of July 7, Case no. 4/19.0PECTB.C1: Enquiry. Investigation. Judicial authority. Statements by co-accused. Trial. Reading of statements. Absence of the co-defendant making the statement. Confidentiality. Probative validity. Proof prohibited. New sentence.
Summary:
“I – The statements of co-defendant made before the judicial authority, during the enquiry, with the assistance of a defender, who was then informed in terms and for the purposes of the provisions of paragraph b) of no. 4 of art. 141 of the CPP, and read out in the hearing of the trial (art. 357, paragraphs 1, al. b), and 2, of the CPP), which took place without his presence, may, with regard to the incriminating facts against him, be assessed by the court, subject to the principle of free appraisal.
II – However, due to incompatibility with the full exercise of adversarial proceedings, they may not be assessed in the part in which they are prejudicial to the other co-defendants, that is, when they are deprived, due to the absence of the co-defendant/statutory accuser in the trial, of the right to confront him with them.
III – By acting in this way, the court incurs in a prohibited valuation of evidence, the consequence of which, if the grounds for the conviction are also based on other means of evidence, is the issuing of a new sentence in the court of first instance, after eliminating the evidence that is not legally permitted“.
Judgement of the Coimbra Court of Appeal of July 7, Case no. 577/20.4JALRA-A.C1: House search. Search of inhabited house. Extensibility of the search.
Summary:
“Once a criminal investigating judge has authorised a house search for a specific property, perfectly defined in the court order embodied in the respective warrant, a restriction on the right to inviolability of the home is formally authorised, and this restriction affects the rights of all persons residing in the place that is the object of the search, even if they have not been expressly identified in the order or warrant issued“.
7.3.4. Administrative and Tax Courts
Judgement of the Supreme Administrative Court of July 1, Case no. 048/21.1BALSB: Uniformization of case-law. Atypical contract. Renewal of contract.
Summary:
“A contract for the use of space in a municipal market in which, within the scope of the contractual autonomy of the parties, a clause has been stipulated conferring on only one of them (the operator of the space/shop) the right to oppose the renewal of the contract at the end of the term or of its renewals, may be interpreted as prohibiting the other party from exercising that right to oppose the renewal if no mandatory rule applicable to it provides otherwise.”.
Monographs and Periodic Publications
Jorge Andrade da Silva, Código dos Contratos Públicos – Anotado e Comentado, 9.ª Edição, Almedina, julho 2021
M. Nogueira da Costa, O Poder Disciplinar na Lei Geral do Trabalho em Funções Públicas, Almedina, julho 2021
Francisco Pimentel, Guia Jurídico das Férias, Faltas e Licenças dos Trabalhadores em Funções Públicas, Almedina, julho 2021
Pedro Costa Gonçalves, Direito dos Contratos Públicos, 5.ª Edição, Almedina, julho 2021.
7.4.2. Generic Guidelines & Cia
Order no. 215/2021-XXII, of 02.07.2021, by order of the Deputy Secretary of State of the Tax Affairs
Subject: Flexibilization of tax obligations.
Circulate Letter no. 20234, of 05.07.2021, by order of the Corporate Income Tax Directorate Services
Subject: Use of depreciation/amortization quotes below the minimum.
Circulate Letter no. 15841, of 07.07.2021, by order of the Customs Regulation Directorate Services
Subject: Sars-CoV vaccine exportation: constraints – OC15823/15835.
Circulate Letter no. 15842, of 07.07.2021, by order of the Customs Taxation Directorate Services
Subject: Rex Trader Portal.
Circulate Letter no. 15843, of 08.07.2021, by order of the Customs Regulation Directorate Services
Subject: Product safety: importation constraints – R.ª OC15054/2012.
Order no. 224/2021-XXII, of 08.07.2021, by order of the Deputy Secretary of State of the Tax Affairs
Subject: Stamp Duty Monthly Statement – extension of Order no. 42/2021 until the end of the year 2021.
Order no. 232/2021-XXII, of 08.07.2021, by order of the Deputy Secretary of State of the Tax Affairs
Subject: Flexibilization of tax obligations in the context of the mutual collaboration principle between the Tax and Customs Authorities and citizens and companies.
Order no. 6854, of 13.07.2021, by order of the Deputy Secretary of State of the Tax Affairs’ Office
Subject: Establishes the unit price for cigarettes and rolling tobacco’s stamp which benefit from tobacco tax exemption.
Order no. 240/2021-XXII, of 14.07.2021, by order of the Deputy Secretary of State of the Tax Affairs Subject: 2021’s fiscal calendar adjustments – Model 22 e IES/DA.
Economy, Finance and Taxation
The Council of Ministers approved, on July 22, the draft law creating the possibility of setting maximum margins of marketing for simple fuels, enabling the Government to intervene with the setting of maximum margins in all components of the value chains of gasoline and diesel simple and bottled GPL, in order to give appropriate and proportionate response to events of market distortion in essential fuels to the lives of consumers and businesses.
The Council of Ministers also approved, on the same date, the decree-law that establishes the legal regime applicable to the realization, through videoconference, of authentic acts, terms of authentication of private documents and acknowledgements, seeking to respond to the demand for online services, given the restrictions imposed on the practice of face-to-face acts due to the Covid-19 disease pandemic.
Finally, the following were approved: i) the draft law, to be submitted to the Assembly of the Republic, which updates the rules for the installation of video surveillance systems in risk areas and for the use of image recording systems by security forces, respecting the fundamental rights of citizens; and ii) the decree-law amending the price revision system for public and private works contracts and the acquisition of goods and services.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=434
The new Table of Industrial Property Fees was published in the 2nd Series of the Diário da República, on 8 June, updating the fees for the various types of Industrial Property for the year 2021, effective as of 1 July.
https://inpi.justica.gov.pt/Noticias-do-INPI/Tabela-de-Taxas-2021
On the 5th July, a public session was held to assess the Portuguese Presidency of the Council of the European Union, which took place from 1 January to 30 June 2021.
https://inpi.justica.gov.pt/Noticias-do-INPI/Sessao-de-Balanco-PPUE-2021-1
The regional project IBEPI (Ibero-American IP Programme) has been launched by the Ibero-American National IP Institutes, being part of the project 14 countries of the region, represented by the National IP Institutes of Argentina, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Spain, Guatemala, Mexico, Paraguay, Peru, Portugal, Dominican Republic and Uruguay. IBEPI aims to promote the development of Ibero-American societies through the strategic use of Industrial Property (IP), as a support to public policies, generating, consequently, an instrument of competitiveness in the industrial, commercial and R&D sectors of the region.
https://inpi.justica.gov.pt/Noticias-do-INPI/Programa-ibero-americano-de-PI-IBEPI
The list of approved candidates for the Aptitude Test for Industrial Property Agent was published in Diário da República by Notice no. 9753/2020 of 30th June.
https://inpi.justica.gov.pt/Noticias-do-INPI/Lista-AOPI-homologada-de-candidatos-aprovados
As of 1 July 2021, Small and Medium-sized Enterprises (SMEs) became eligible to apply for the 4th funding window of the European SME Fund, closing on 31 July. The Fund offers financial support in the form of reimbursement of 50% of the expenses incurred in filing one or more applications for registration of trademarks and designs (application fees), up to a maximum amount of €1,500.00 per company.
https://inpi.justica.gov.pt/Noticias-do-INPI/Fundo-Europeu-para-as-PME-Abertas-as-Candidaturas
In order to clarify contents regarding Industrial Property, to inform about the advantages and importance of IP, as well as to help all interested parties to create a solid base of knowledge on various topics, INPI has published a new informative brochure on the subject of Patents and Utility Models.
https://inpi.justica.gov.pt/Noticias-do-INPI/Disponibilizacao-de-nova-brochura-informativa-sobre-PI
The numbers of Industrial Property Rights (IPR) applications and concessions for the month of June 2021 have been made available. Note for the increase of Trademark and OSDC applications, of 34.7%, compared to 2020 and the increase of 30.7%, compared to the previous year, of the number of European Union Trademark and International Trademark applications, originating in Portugal.
https://inpi.justica.gov.pt/Noticias-do-INPI/Direitos-de-Propriedade-Industrial-em-junho-de-2021
The European Observatory on IPR infringements, of the European Union Intellectual Property Office (EUIPO), presented a balance of the media coverage of the Information Campaign launched on World Anti-Counterfeiting Day, 8 June, which reached a total of more than two billion people.
The 34th edition of the Bulletin of Technological Surveillance (BVT) – Ocean Energies, published within the scope of the Iberian project between INPI and the OEPM, was made available, with emphasis on the new list of publications of patent applications on floating offshore wind energy. The BVT now incorporates the technical areas of wave energy, tidal energy, floating offshore wind energy and various oceanic energies.
E-LEGAL® NEWSLETTER – AUGUST 2021
8.1. EDITORIAL – DIRECTIVE (EU) 2019/1153 AND GENERAL REGIME FOR CREDIT INSTITUTIONS AND FINANCIAL COMPANIES; LEGAL REGIME FOR VENTURE CAPITAL, SOCIAL ENTREPRENEURSHIP AND SPECIALISED INVESTMENT
The month of August was characterised, in legislative terms, by the approval and publication of the Law no. 54/2021, of August 13, which transposed into national law Directive (EU) 2019/1153, which sets out rules to facilitate the use of information for the prevention, detection, investigation or prosecution of criminal offences, and also amended the General Framework of Credit Institutions and Financial Companies. On the other hand, we highlight Decree-Law no. 72/2021, of August 16, which amended the Legal Framework for Venture Capital, Social Entrepreneurship and Specialised Investment, revised the framework applicable to the venture capital investment activity and also amended Decree-Law no. 77/2017 of June 30, which creates measures to boost the capital market, with a view to diversifying corporate financing sources.
Also worthy of note at the legislative level are:
I) Decree-Law no. 70-B/2021, of August 6, which amended Decree-Law no. 227/2012, of October 25, which establishes the principles and rules to be observed by credit institutions in the prevention and regularisation of situations of default on credit agreements by bank customers and creates the extrajudicial support network for these bank customers;
II) Law no. 55/2021, of August 13 and Law no. 56/2021, of August 16, which introduced mechanisms to control the electronic distribution of judicial and administrative and tax proceedings, respectively, amending both the Code of Civil Procedure and the Code of Procedure of the Administrative Courts and the Code of Tax Procedure and Proceedings, respectively;
III) Law no. 57/2021, of August 16, which extended protection for victims of domestic violence, amending Law no. 112/2009 of September 16, the Criminal Code and the Code of Criminal Procedure.
In the scope of case law, it is worth mentioning the Judgement of the Constitutional Court of August 12, Case no. 1046/2020, which decided not to judge unconstitutional the interpretation extracted from Articles 58, no. 2, 59, nos. 1 and 2 and 101, all of the Code of Procedure in Administrative Courts (CPTA), conjugated with Article 279 of the Civil Code, according to which, in the counting of the deadline for filing a lawsuit to contest the act of adjudication in the context of pre-contractual litigation, the rule of paragraph b) of Article 279 of the Civil Code shall not be taken into account, but only the rule of paragraph c) of the same precept.
Finally, regarding Miscellaneous, we highlight the approval, on August 26, of the decree-law that amends the rules on the organisation and exploitation of the mutual betting competitions “Totobola” and “Totoloto” and establishes new percentages for the sums intended for prizes in the State’s social games.
Ordinance no. 168-B/2021, of August 2: Makes the third amendment to the Regulation of the APOIAR Programme, approved in annex to Ordinance no. 271-A/2020, of November 24.
https://dre.pt/application/file/a/168917300
Decree-Law no. 70/2021, of August 3: Makes the first amendment to Decree-Law no. 55/2018, of July 6, which establishes the curriculum for basic and secondary education, and approves the legal regime applicable to individual teaching and home schooling.
https://dre.pt/application/file/a/168917287
Ordinance no. 169/2021, of August 5: Determines the revaluation coefficients for annual remuneration.
https://dre.pt/application/file/a/169132411
Decree-Law no. 70-A/2021, of August 6: Undertakes the first amendment to Decree-Law no. 56-B/2021, of July 7, which alters the exceptional regime for situations of late payment of rent and establishes the guarantee of supply of essential services, within the scope of the COVID-19 disease pandemic.
https://dre.pt/application/file/a/169268166
Decree-Law no. 70-B/2021, of August 6: Makes the first amendment to Decree-Law no. 227/2012, of October 25, which establishes the principles and rules to be observed by credit institutions in the prevention and regularisation of situations of default on credit agreements by bank customers and creates the extrajudicial support network for these bank customers in the context of the regularisation of these situations.
https://dre.pt/application/file/a/169268167
Decree-Law no. 70-C/2021, of August 6: Approves exceptional measures to guarantee access to higher education for students from foreign secondary education systems.
https://dre.pt/application/file/a/169268168
Organic Law no. 2/2021, of August 9: Approves the Organic Law of the Bases of Organization of the Armed Forces.
https://dre.pt/application/file/a/169206346
Organic Law no. 3/2021, of August 9: Undertakes the second amendment to the National Defence Law, approved by Organic Law no. 1-B/2009, of July 7.
https://dre.pt/application/file/a/169206347
Law no. 52/2021, of August 10: Makes the first amendment, by parliamentary appreciation, to Decree-Law no. 102-D/2020, of December 10, which approves the general waste management regime, the legal regime for the landfill of waste and amends the regime for the management of specific waste flows, transposing Directives (EU) 2018/849, 2018/850, 2018/851 and 2018/852.
https://dre.pt/application/file/a/169206368
Decree-Law no. 71/2021, of August 11: Ensures the implementation of Regulation (EU) 2017/2394 on cooperation between national authorities responsible for the enforcement of consumer protection laws.
https://dre.pt/application/file/a/169372629
Law no. 53/2021, of August 12: Introduces changes to the Statute of Deputies in relation to the suspension of mandate and incompatibilities with the mandate of Deputy of the Assembly of the Republic.
https://dre.pt/application/file/a/169491543
Law no. 54/2021, of August 13: Transposes Directive (EU) 2019/1153 of the European Parliament and of the Council of 20 June 2019, which lays down rules aimed at facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences, and amends the General Framework for Credit Institutions and Financial Companies.
https://dre.pt/application/file/a/169491569
Law no. 55/2021, of August 13: Introduces mechanisms to control the electronic distribution of court proceedings, amending the Civil Procedure Code, approved by Law no. 41/2013 of June 26.
https://dre.pt/application/file/a/169491570
Decree-Law no. 71-A/2021, of August 13: Undertakes the ninth amendment to Decree-Law no. 46-A/2020, of July 30, which creates the extraordinary support regime for the progressive recovery of companies in a situation of business crisis with a temporary reduction of the normal work period.
https://dre.pt/application/file/a/169538278
Law no. 56/2021, of August 16: Introduces mechanisms to control the electronic distribution of cases in the administrative and tax courts, amending the Code of Procedure of Administrative Courts and the Code of Tax Procedure and Proceedings.
https://dre.pt/application/file/a/169622134
Law no. 57/2021, of August 16: Extends the protection of victims of domestic violence, amending Law no. 112/2009 of September 16, the Criminal Code and the Code of Criminal Procedure.
https://dre.pt/application/file/a/169622135
Decree-Law no. 72/2021, of August 16: Undertakes: i) The fourth amendment to the Legal Framework for Venture Capital, Social Entrepreneurship and Specialised Investment, and the review of the framework applicable to the venture capital investment activity; ii) The third amendment to Decree-Law no. 77/2017, of June 30, which creates measures to boost the capital market, with a view to diversifying the sources of funding for companies.
https://dre.pt/application/file/a/169622137
Law no. 58/2021, of August 18: Obliges the declaration of membership, participation or performance of any functions in any entities of an associative nature, proceeding with: i) The second amendment to Law no. 52/2019, of July 31, which approves the regime for the exercise of functions by holders of political positions and high public positions; ii) The fifteenth amendment to the Statute of Deputies, approved by Law no. 7/93, of March 1.
https://dre.pt/application/file/a/169775358
Law no. 59/2021, of August 18: Establishes the legal regime for urban tree management.
https://dre.pt/application/file/a/169775359
Decree-Law no. 73/2021, of August 18: Undertakes the first amendment to Decree-Law no. 6/2004, of January 6, which establishes the price revision system for public and private works contracts and the acquisition of goods and services.
https://dre.pt/application/file/a/169775360
Law no. 60/2021, of August 19: Authorises the Government to define the requirements for access and exercise of the activity of the technicians of the Buildings Energy Certification System (SCE), approved by Decree-Law no. 101-D/2020, of December 7.
https://dre.pt/application/file/a/169834505
Law no. 61/2021, of August 19: Simplifies the procedures for the issue, delivery and use of the citizen’s card and materializes the right to the citizen’s card for homeless people, amending Law no. 7/2007, of February 5, and Decree-Law no. 135/99, of April 22.
https://dre.pt/application/file/a/169834506
Law no. 62/2021, of August 19: Approves the legal regime applicable to the donation of foodstuffs for social solidarity purposes and measures to combat food waste.
https://dre.pt/application/file/a/169834507
Ordinance no. 172/2021, of August 19: Approves the rules for the partial denaturing of alcohol used for industrial purposes or for therapeutic and health purposes, respectively provided for in Article 68(1) and (5) of the Excise Duty Code (CIEC).
https://dre.pt/application/file/a/169834511
Council of Ministers Resolution no. 114-A/2021, of August 20: Declares the situation of contingency in the context of the pandemic of the disease COVID-19.
https://dre.pt/application/file/a/169999728
Law no. 66/2021, of August 24: Modifies the regime for parking, overnight accommodation and parking of motorhomes, amending the Highway Code and the Regulation on Traffic Signs.
https://dre.pt/application/file/a/170085513
Law no. 67/2021, of August 25: Makes the third amendment to the Law-Framework for Foundations.
https://dre.pt/application/file/a/170156044
Decree-Law no. 74/2021, of August 25: Regulates the Cinema Law with regard to the collection of fees and the investment obligations to which operators are subject.
https://dre.pt/application/file/a/170156045
Declaration of Rectification no. 28/2021, of August 25: Rectifies Decree-Law no. 63/2021, of July 28, on the Digital Economy and Transition, which creates the Companies Capitalisation Fund.
https://dre.pt/application/file/a/170156047
Law no. 68/2021, of August 26: Approves the general principles on open data and transposes into national law Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information, amending Law no. 26/2016, of August 22.
https://dre.pt/application/file/a/170238175
Ordinance no. 178/2021, of August 26: Amends the regulation on the REACTIVATE SPORTS measure of the Support Fund for the Recovery of Physical and Sporting Activity, approved in annex to Ordinance no. 142-B/2021, of July 8.
https://dre.pt/application/file/a/170238178
Decree-Law no. 76/2021, of August 27: It transposes Directive (EU) 2019/633 on unfair trading practices in business-to-business relations in the agricultural and food supply chain.
https://dre.pt/application/file/a/170323109
Decree-Law no. 77/2021, of August 27: It amends the framework for sensitive areas with regard to urban waste water treatment.
https://dre.pt/application/file/a/170323110
Ordinance no. 179/2021, of August 27: Creates the “Digital Skills Certificate” (Certificado de Competências Digitais) programme.
https://dre.pt/application/conteudo/170322930
Declaration of Rectification no. 28-A/2021, of August 27: Rectifies the Resolution of the Council of Ministers no. 114-A/2021, of August 20, which declares the situation of contingency in the context of the pandemic disease COVID-19.
https://dre.pt/application/file/a/170420433
Council of Ministers Resolution no. 119/2021, of August 31: Approves the National Strategy for the Inclusion of People with Disabilities 2021-2025.
https://dre.pt/application/file/a/170525096
Ordinance no. 182/2021, of August 31: Determines the extension of Ordinance no. 138-B/2021, which establishes an exceptional and temporary co-payment scheme for rapid antigen tests (TRAg) for professional use.
https://dre.pt/application/file/a/170525098
8.3.1. Court of Justice of the European Union
Judgement of the Court of Justice of August 2, Case C-262/21 PPU: Reference for a preliminary ruling. Area of freedom, security and justice. Jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility. Regulation (EC) No 2201/2003. Scope of application. Article 2, point 11. Concept of “wrongful removal or retention of a child”. Hague Convention of 25 October 1980. Application for return of a young child of whom both parents have joint custody. Third-country nationals. Transfer of the child and his or her mother to the Member State responsible for examining an application for international protection pursuant to Regulation (EU) No 604/2013 (Dublin III).
Summary:
“Article 2(11) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that it cannot constitute an unlawful removal or retention, within the meaning of that provision, where a parent, without the agreement of the other parent, takes the child from his or her State of habitual residence to another Member State in execution of a transfer decision taken by the first Member State on the basis of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013, establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, and then remains in the second Member State after that transfer decision has been annulled, without, however, the authorities of the first Member State having decided to take back the persons transferred or to allow them to reside.”.
https://eur-lex.europa.eu/legal-content/PT/TXT/?uri=CELEX:62021CJ0262
Judgement of the Constitutional Court no. 675/2021 of August 12, Case no. 1046/2020: Following an appeal on the constitutionality of the interpretation of the combined provisions of Articles 58(2), 59(1) and (2) and 101 of the Code of Procedure of Administrative Courts (CPTA) and Article 279(b) and (c) of the Civil Code, under the terms of which, within the scope of administrative jurisdiction, time limits for challenging pre-contractual administrative acts include, in their counting, the day of the event that triggers them, the Constitutional Court has decided: a) not to judge unconstitutional the interpretation extracted from Articles 58, no. 2, 59, nos. 1 and 2 and 101, all of the Code of Procedure in Administrative Courts (CPTA), conjugated with Article 279 of the Civil Code, according to which, in the counting of the deadline for filing a lawsuit to contest the act of adjudication in the context of pre-contractual litigation, the rule of paragraph b) of Article 279 of the Civil Code shall not be taken into account, but only the rule of paragraph c) of the same precept.
b) and, accordingly, to reject the appeal.
https://www.tribunalconstitucional.pt/tc/acordaos/20210675.html
8.3.4. Administrative and Tax Courts
Judgement of the Southern Central Administrative Court of August 11, Case no. 301/21.4BELSB: International protection. Duty of instruction.
Summary:
“As the Applicant has not invoked any concrete facts that may constitute an indication that he has been or will be the victim of systemic failures of the reception system with the extreme seriousness that is a prerequisite for the application of the safeguard clause in Article 3(2) of Regulation (EU) No 604/2013 of 26 June, no further instructional activity was required of SEF.“.
Monographs and Periodic Publications
João Verdade dos Santos, Francisco Metello, Manual de Administração de Condomínios, 2.ª Edição, Almedina, agosto 2021
Carlos José Batalhão (Coord.), Código de Processo nos Tribunais Administrativos – Anotações Práticas, 2ª Edição, Almedina, agosto 2021
Jorge Miranda, Direito Eleitoral, 2.ª Edição, Almedina, agosto 2021
Glória Teixeira, Manual de Direito Fiscal, 6.ª Edição, Almedina, agosto 2021
Bárbara Piairo de Sousa, A Responsabilidade Civil da Administração Tributária, Almedina, agosto 2021
8.4.2. Generic Guidelines & Cia
Circulate Letter no. 60346/2021, de 06.08.2021, by order of the Subdirector General’s Office
Subject: Article no. 57-A of the General Tax Law – Deadlines’ deferral.
Order no. 281/2021-XXII, of 13.08.2021, by order of the Deputy Secretary of State of the Tax Affairs
Subject: Tax payment flexibilization regime according to the new article no. 57-A of General Tax Law.
Economy, Finance and Taxation
The Council of Ministers approved, on August 26, the decree-law amending the rules on the organisation and exploitation of mutual betting competitions “Totobola” and “Totoloto” and establishing new percentages for the amounts intended for prizes in state social games.
The Council of Ministers also approved, on the same date, the resolution that establishes the new model of Participatory Budget Portugal, which creates the National Participation Day and launches the project Participatory Budget of Public Administration.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=438
The provisional statistical data regarding Industrial Property Rights (IPR) applications and concessions, updated to the month of July 2021, have been made available.
The deadline for filing national applications in the UK and claiming the EU designation date is 30 September 2021.
https://inpi.justica.gov.pt/Noticias-do-INPI/Sistema-de-Madrid
In the first half of 2020, INPI granted 56.6% more Inventions, compared to the same period in 2020. Regarding applications, the applications for Trademarks, Logotypes and Other Trade Distinctive Signs (OSDC) were the modality of Industrial Property Rights (IPR) in Portugal with the highest demand at the Institute. In total, 10,179 Portuguese Trademarks and OSDCs were granted in this half-year period, which represents a growth of 26.0% compared to the first six months of the previous year (8,078).
Since its first edition, the Global Innovation Index (GII) has sought to improve understanding of the world’s innovation ecosystems in order to facilitate evidence-based policy making. In the 2021 edition, to be launched on 20 September 2021, the GII analysed the innovation performance of 132 economies based on 81 different innovation metrics.
https://inpi.justica.gov.pt/Noticias-do-INPI/Lancamento-da-edicao-do-Global-Innovation-Index-2021
E-LEGAL® NEWSLETTER – SEPTEMBER 2021
9.1. EDITORIAL – FUNCTIONING OF THE “IVAucher” PROGRAMME; SUPPORT LINE FOR TREASURY FOR SMALL AND MEDIUM-SIZED ENTERPRISES (SME SUPPORT LINE)
The month of September was characterised, on a legislative level, by the approval and publication of the Regulatory Decree no. 6-A/2021, of September 8, which made the first amendment to Regulatory Decree no. 2-A/2021, of May 28, which defines the scope and specific conditions of functioning of the “IVAucher” programme.
On the other hand, it is worth highlighting Ordinance no. 192-A/2021, of September 14, which regulates the Treasury Support Line for Micro and Small Enterprises (MSE Support Line), approved by Decree-Law no. 64/2021, of July 28.
On a legislative level, the following should also be highlighted:
I) Ordinance no. 193/2021, of September 15, which established specific guidelines on the financial circuit applicable to the support of the Recovery and Resilience Plan (RRP), within the scope of the Recovery and Resilience Mechanism (RRM).
II) Ordinance no. 203/2021, of September 28, which established an aid measure for facilities covered by the European Emissions Trading Scheme (EETS), under the terms of Decree-Law no. 12/2020, of April 6.
Within the scope of case-law, it should be noted the Judgement of the Lisbon Court of Appeal of September 9, Case No. 5584/12.8TBSXL-D.L1-2, which clarified that the simplified regime of transfer of credits in mass, exempts, for the procedural habilitation concerning the transfer of credits provided for therein, the deduction of the habilitation incident provided for in Article 356 of the Code of Civil Procedure, which operates through the simple attachment of the copy of the transfer contract to the records.
Also to be highlighted, within the scope of case law, is the Judgement of the Oporto Court of Appeal of September 9, Case No. 3858/21.6T8VNG.P1, which decided that the injunction for the provisional return of possession in which the applicant, a public-law entity, claims abusive occupation of property by a private individual, of whose property it claims to be the owner and whose restitution it claims via this procedure, is of a private nature.
Finally, under Miscellaneous, we highlight the approval, on September 23, of the creation of the figure of the National Coordinator of the Children’s Guarantee, with its own competences and remuneration status, fulfilling the recommendation that establishes a European Guarantee for Children.
Council of Ministers Resolution no. 120/2021, of September 1: Approves the action plan of the National Strategy for the Sea 2021-2030.
https://dre.pt/application/file/a/170591877
Ordinance no. 183/2021, of September 1: Sets the percentage amount of the justice fee to be allocated to the Social Security Executive Collection Fund.
https://dre.pt/application/file/a/170591879
Ordinance no. 184-A/2021, of September 3: Undertakes the second amendment to the Regulation on Cultural Support Measures in the context of response to the COVID-19 disease pandemic, approved in annex to Ordinance no. 37-A/2021, of February 15.
https://dre.pt/application/file/a/170741077
Ordinance no. 185/2021, of September 6: Determines the integration of new entities of the social economy sector in the National Council for Social Economy.
https://dre.pt/application/file/a/170796691
Decree-Law no. 77-B/2021, of September 6: Amends the norms regarding the organisation and exploration of the mutual betting competitions called “Totobola” and “Totoloto” and establishes new percentages regarding the amounts intended for prizes in the State’s social games.
https://dre.pt/application/file/a/170796701
Regulatory Decree no. 6-A/2021, of September 8: Undertakes the first amendment to Regulatory Decree no. 2-A/2021, of May 28, which defines the scope and specific conditions of operation of the “IVAucher” programme.
https://dre.pt/application/file/a/171004653
Council of Ministers Resolution no. 131/2021, of September 10: Approves the Strategy for the Digital Transformation of the Public Administration 2021-2026 and the respective Transversal Action Plan for the legislature.
https://dre.pt/application/file/a/171096433
Decree no. 21-A/2021, of September 10: Declares national mourning for the death of Jorge Sampaio.
https://dre.pt/application/file/a/171095055
Council of Ministers Resolution no. 131-B/2021, of September 10: Creates Treasury Value Savings Certificates and suspends new subscriptions of Treasury Growth Savings Certificates.
https://dre.pt/application/file/a/171095069
Council of Ministers Resolution no. 132/2021, of September 13: Approves the National Strategy for Food and Nutritional Security.
https://dre.pt/application/file/a/171095060
Ordinance no. 190/2021, of September 13: Undertakes the second amendment to Ordinance no. 324/2015, of October 1, which creates the European Innovation Partnership Initiative Exchange for agricultural productivity and sustainability (Initiative Exchange) and establishes the general rules for its operation.
https://dre.pt/application/file/a/171095061
Decree-Law no. 77-C/2021, of September 14: Updates the amounts of the fixed component of the supplement for service and risk in security forces earned by the military personnel of the Guarda Nacional Republicana (GNR) and by the police personnel of the Polícia de Segurança Pública (PSP).
https://dre.pt/application/file/a/171310479
Ordinance no. 192-A/2021, of September 14: Regulates the Treasury Support Line for Micro and Small Enterprises (MSE Support Line), approved by Decree-Law 64/2021 of July 28.
https://dre.pt/application/file/a/171310483
Ordinance no. 193/2021, of September 15: Establishes the specific guidelines regarding the financial circuit applicable to the Recovery and Resilience Plan (RRP) support under the Recovery and Resilience Mechanism (RRM).
https://dre.pt/application/file/a/171365595
Ordinance no. 194/2021, of September 17: Defines the models of diplomas and certificates in electronic format of the educational and training offers of basic and secondary education.
https://dre.pt/application/file/a/171518520
Declaration of Rectification no. 31/2021, of September 20: Rectifies Law no. 68/2021, of August 26, “Approves the general principles on open data and transposes into national law Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information, amending Law no. 26/2016, of August 22”.
https://dre.pt/application/file/a/171575303
Ordinance no. 199/2021, of September 21: Defines the specific conditions for the extension of free nursery school attendance, in compliance with the provisions of no. 1 of article 159 of Law no. 75-B/2020, of December 31.
https://dre.pt/application/file/a/171678508
Ordinance no. 200/2021, of September 21: Defines the exceptional co-payment scheme for pneumococcal vaccines.
https://dre.pt/application/file/a/171678509
Decree-Law no. 78/2021, of September 24: Transposes Directive (EU) 2019/904 on reducing the impact of certain plastic products on the environment and amending the rules on plastic products at points of sale for bread, fruit and vegetables.
https://dre.pt/application/file/a/171892278
Ordinance no. 202/2021, of September 27: Extends the deadlines for the submission of documents necessary for the instruction of the process for recognition and maintenance of the status of informal caregiver.
https://dre.pt/application/file/a/171942788
Ordinance no. 203/2021, of September 28: Establishes an aid measure in favour of installations covered by the European Emissions Trading Scheme (EETS), under the terms of Decree-Law no. 12/2020, of April 6.
https://dre.pt/application/file/a/171942835
Decree-Law no. 78-A/2021, of September 29: Amends the exceptional and temporary measures concerning the pandemic disease COVID-19.
https://dre.pt/application/file/a/171942863
Council of Ministers Resolution no. 135-A/2021, of September 29: Amends the measures under the alert situation.
https://dre.pt/application/file/a/171942864
9.3.1. Court of Justice of the European Union
Judgement of the Coimbra Court of Appeal of September 7, Case no. 1254/19.4T8ANS-B.C1: Commercial company. Purpose. Object. Capacity. Bank Credit. Credit institutions. Credit assignment. Exchange credit. Expiry date. Prescription. Covenant of completion.
Summary:
“I – The purpose of a commercial company (profit) is not to be confused with its corporate object, and it is by the former and not by the latter that the capacity of companies is measured.
II) Businesses entered into by a commercial company that are necessary or convenient for obtaining a profit are valid, even if they are extraneous to its corporate object.
III) Not only credit institutions may acquire and hold a credit arising from a bank loan.
IV) As a result of what is stated in I) to III), nothing prevents a bank credit, already matured and in default, from being assigned to a company that is not a credit institution.
V) The need to transfer personal data that is protected by the legal regimes of protection of personal data and banking secrecy does not determine the inadmissibility or nullity of the assignment of the bank credit, even if it is made without the consent of the holder of that data.
VI – The statute of limitation for exchange actions shall run from the maturity date set out in the instrument, unless that date has been set out therein in breach of the contract of performance, in which case the relevant maturity date will be the one resulting from that contract.
VII – The composition agreement provided that the creditor was authorised to complete the promissory note when necessary, according to her own judgement, and that the maturity date would be fixed by her when, in the event of default by the debtor, she decided to resort to the coercive realisation of the respective credit, there is no abusive completion of the promissory note by the creditor who affixed a maturity date situated approximately seven years after the event that might legitimise the completion of the note“.
Judgement of the Lisbon Court of Appeal of September 9, Case no. 5584/12.8TBSXL-D.L1-2: Assignment of mass claims. Contestation.
Summary:
“I.- Decree-Law no. 42/2019, of March 28, which approved a simplified regime of mass assignment of claims, exempts, for the procedural habilitation concerning the assignment of claims provided for therein, the deduction of the habilitation incident provided for in article 356 of the CPC.
II.- For those assignments of credits the empowerment operates by simple attachment of a copy of the assignment contract to the case file.
III.- However, nothing prevents the opposing party from contesting or opposing the intended enabling act“.
Judgement of the Oporto Court of Appeal of September 9, Case no. 3858/21.6T8VNG.P1: Protective order. Provisional restitution of possession. Public corporate entity. Material jurisdiction.
Summary:
“I – The material jurisdiction, is assessed according to the way in which the plaintiff configures and structures the action, analysing the claim and the concrete factuality that serves as its basis (cause of action).
II – The right to defend possession and ownership of property may be exercised against private individuals by public entities.
III – The injunction for provisional return of possession in which the claimant, a public-law entity, invokes abusive occupation of property by a private party, of whose ownership it claims to be the holder and whose return it seeks through this procedure, is of a private nature.
IV – The common courts, and not the administrative courts, are the competent courts, by reason of the subject matter, to hear such a writ of prevention.”.
Judgement of the Lisbon Court of Appeal of September 14, Case no. 2/19.3T8LRS.L1-7: Bank. Financial intermediary. Duty to inform. Breach. Liability. Burden of proof.
Summary:
“– The liability of a financial intermediary exists in relation to any person, as a consequence of the violation of duties relating to the exercise of their activity, which are imposed on them by law or regulations issued by a public authority, so that, consequently, it is evident that the injured party will be responsible for proving the illicit fact, as regards guilt, this will be presumed if the damage is caused within the scope of contractual or pre-contractual relations, and in any case, when it is caused by the violation of duties of information.
– It is also important to prove the damage, corresponding to the loss of capital delivered for the subscription of the financial product, discounting the income received in the meantime by the victim, as well as assessing the existence of the causal connection, which should result from the factual findings.
– The specific assessment to be made, especially in terms of the degree of guilt, must necessarily take into account the profile of the investor, the characteristics of the financial products subscribed and the knowledge held, or not, by the intermediary, always at the time of pre-negotiation and contractualisation“.
9.3.3. Administrative and Tax Courts
Judgement of the Supreme Administrative Court of September 8, Case No. 01391/12.6BESNT: Competence by reason of hierarchy. Municipal tax on the onerous transmission of real estate. Excess share in inheritance.
Summary:
“I – The appeal is exclusively a matter of law when the questions raised therein are resolved exclusively through an activity involving the application and interpretation of legal norms, in which case the Supreme Administrative Court has jurisdiction to hear it [cf. arts. 26(b) and 38(a) of the ETAF and art. 280(1) of the CPPT].
II – For the purposes of IMT taxation on the “excess of the acquirer’s share in immovable property in the course of division or partition”, there is no need to inquire whether the acquisition of the excess was onerous or gratuitous (namely because the heir who was to receive tares of the taxpayer waived them), nor even the acquisitive or declarative nature of the partition, precisely in order to avoid any discussion of the nature of this phenomenon and of its subsumption, or not, to the other rules of objective incidence, the legislator, wishing to tax it, expressly established the subjection of the same to IMT, as set out in paragraph c) of no. 5 of article 2 of the Code of this tax“.
Judgement of the Supreme Administrative Court of September 8, Case no. 0870/15.8BEBRG: Municipal tax on the onerous transmission of real estate. Revision.
Summary:
“I – Article 43 no. Article 43(2) of the Municipal Property Transfer Tax Code (CIMT) contains the legislator’s determination, within the scope of the guarantees conferred on taxpayers/responsible for the payment of IMT, to provide them with equal means of defence, whether they make an internal administrative complaint or file a judicial appeal, exceptionally covering, in the case of the latter, the possibility of the appearance of a new, supervening basis (“any illegality”), supported by a document or judgment available outside the normal period for filing an appeal.
II – The communication (to the taxpayer/responsible party) of the exemption granted at a time subsequent to the payment of the IMT, constitutes a supervening document for the purposes of article 43(2) of the CIMT.
III – A common and transversal note to the means of reaction/action provided for in article 78 of the General Tax Law (LGT) is found, clearly and objectively, in the express provision of the maximum time limit of four years, also counted, by explicit mention of the law, from the date of assessment (“… after the assessment”)“.
Monographs and Periodic Publications
Isa António, Manual Teórico-Prático de Direito Administrativo, 3.ª Edição, Almedina, setembro 2021
Salvador da Costa, As Custas Processuais, 8.ª Edição, Almedina, setembro 2021
David Falcão, Sérgio Tenreiro Tomás, Lições de Direito do Trabalho, 10.ª Edição, Almedina, setembro 2021
Paula Rosado Pereira, Convenções Sobre Dupla Tributação no Atual Direito Fiscal Internacional, Almedina, setembro 2021
Luís Menezes Leitão, Direito das Obrigações – Volume II, Almedina, setembro 2021
Paula Rosado Pereira, Manual de IRS, 3.ª Edição, Almedina, setembro 2021
Ana Paula Dourado, Direito Fiscal, 6.ª Edição, Almedina, setembro 2021
Diogo Leite de Campos, Mónica Martinez de Campos, Lições de Direito das Sucessões, 4.ª Edição, Almedina, setembro 2021
Joaquim Freitas da Rocha, Lições de Procedimento e Processo Tributário, 8.ª Edição, Almedina, setembro 2021
Luís Filipe Pires de Sousa, Direito Probatório Material, 2.ª Edição, Almedina, setembro 2021
Paulo Olavo Cunha, Direito Comercial e do Mercado, 3.ª Edição, Almedina, setembro 2021
Luís Couto Gonçalves, Manual de Direito Industrial, 9.ª Edição, Almedina, setembro 2021
9.4.2. Generic Guidelines & Cia
Circulate Letter no. 20235/2021 of 23.09.2021 by order of the Deputy Director General of IR and International Relations
Subject: General deadline for the delivery of the Model 3 of the year 2020 and the obligation set out in Article 59(3)(o) of the LGT.
https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_20235_2021.pdf
Circulate Letter no. 60357/2021, de 23.09.2021, by order of the Deputy Director General
Assunto: Submission of the 2020 model 3 declaration. Waiver of fine. Article 32 of the General Regime of Tax Infractions (RGIT).
Economy, Finance and Taxation
The Council of Ministers approved, on September 23, the creation of the figure of the National Coordinator of the Guarantee for Childhood, with own competences and remuneration status, fulfilling the recommendation that establishes a European Guarantee for Childhood, adopted under the Portuguese Presidency of the Council of the European Union, with the aim of ensuring equal access of children in vulnerable situations to essential services.
The Council of Ministers also approved, on the same date, a draft law on legislative authorisation, to be submitted to Parliament, authorising the Government to legislate specifically on copyright and related rights in order to transpose into national law Directive 2019/790 of the European Parliament and of the Council on copyright and related rights in the digital single market.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=445
On the 1st of September, the 5th round of applications to the Small and Medium-sized Enterprise (SME) Fund for Intellectual Property Rights (IPR) support started, an initiative implemented by the European Union Intellectual Property Office (EUIPO) aimed at helping SMEs based in the European Union (EU) to access and benefit from their IPR, in order to strengthen their competitiveness in the market and, at the same time, combat the negative impact caused by the Covid-19 pandemic on European SMEs.
The National Institute of Industrial Property (INPI) received an honourable mention, under the initiative of the European Commission – European Enterprise Promotion Awards (EEPA), regarding the project “INES – INPI New Electronic Services”. The EEPA are an award that recognizes excellence in the promotion of entrepreneurship and are based on the priorities of the Europe 2020 strategy, coordinated in Portugal by IAPMEI – Agency for Competitiveness and Innovation.
The World Intellectual Property Organization (WIPO) presented yesterday the Global Innovation Index 2021 (GII), listing Switzerland, Sweden, the United States of America (USA), the United Kingdom and the Republic of Korea as the world leaders in innovation. Portugal remains in the 31st position among the 132 countries in this edition, performing above average in the high performance group in three pillars: Institutions; Human Capital and Research and Creative Production.
https://inpi.justica.gov.pt/Noticias-do-INPI/OMPI-apresenta-Indice-Global-de-Inovacao-2021
E-LEGAL® NEWSLETTER – OCTOBER 2021
10.1. EDITORIAL – POSSIBILITY OF FIXING MAXIMUM MARKETING MARGINS FOR SIMPLE FUELS; AMENDMENT OF THE PERIODIC VAT DECLARATION, ANNEX R AND RESPECTIVE FILLING INSTRUCTIONS
In terms of legislation, October was characterised by the approval and publication of Law no. 69-A/2021, of October 21, which created the possibility of establishing maximum commercialization margins for simple fuels, amending Decree Law no. 31/2006, of February 15.
Also noteworthy, on a legislative level, is the publication of:
I) Ordinance no. 206/2021, of October 14, which amended the periodic VAT return, annex R and respective instructions for completion, providing for intervention by an independent certified accountant in the certification provided for in article 78-D of the VAT Code;
II) Ordinance no. 208-A/2021, of October 15, which proceeded with the first amendment to Ordinance no. 301-A/2018, of 23 November, which sets the value of the unit rates of tax on petroleum and energy products (ISP) applicable on the continent to unleaded petrol and road diesel; and
III) Ordinance no. 209/2021, of October 18, which approved the model of the standard report of domestic violence (“Auto VD”), to be used by the National Republican Guard (GNR), Public Security Police (PSP), Judiciary Police (PJ) and Public Prosecution Services, in situations of domestic violence.
Within the scope of case-law, we highlight the Judgment of the Guimarães Court of Appeal of October 7, Case no. 753/20.0T8VNF-D.G1, which clarified that “The special immovable property privilege referred to in Article 333, no. 1, paragraph b) of the Labour Code, covers all of the employer’s real estate allocated to its business activity, to which the workers are functionally connected. This connection does not have to be naturalistic, i.e. it does not necessarily have to do with the physical location of the workplace of each worker, but merely functional, for this purpose it is sufficient that the real estate is part of the productive organisation of the company to which the workers belong“.
Also worth mentioning within the scope of case-law is the Judgement of the Coimbra Court of Appeal of October 12, Case No. 3682/20.3T9LRA.C1, which clarified that “Article 7(2) of the General Regime of Administrative Offences requires an extensive interpretation in order to include within its scope the workers, directors and managers and the agents or representatives of the legal person or equivalent, when acting in the exercise of their functions or because of them“.
Finally, within the scope of Miscellaneous, we highlight the delivery, by the Minister of State and Finance to the President of the Assembly of the Republic, of the Draft-Law no. 116/XIV/3 for the approval of the State Budget for 2022, and the subsequent rejection of the referred Draft-Law, on 27 October 2021.
Notice no. 18589/2021, of October 1: Approves the Code of Conduct and Ethics of the Food and Economic Safety Authority.
https://dre.pt/application/file/a/172274984
Resolution of the Assembly of the Republic no. 253/2021, of October 6: Approves the report and management account of the Assembly of the Republic for the year 2020.
https://dre.pt/application/file/a/172420865
Decree-Law no. 80/2021, of October 6: Approves the organizational structure of the Ombudsman’s Office.
https://dre.pt/application/file/a/172420866
Ordinance no. 205/2021, of October 12: Regulates the creation and operation of the Social Employment Incubators.
https://dre.pt/application/file/a/172687107
Rectification Statement no. 33/2021, of October 13: Rectifies Decree-Law no. 78-A/2021, of September 29, which alters the exceptional and temporary measures related to the pandemic disease COVID-19.
https://dre.pt/application/file/a/172738386
Ordinance no. 206/2021, of October 14: Amends the periodic VAT return, annex R and respective instructions for completion, providing for the intervention, by an independent certified accountant, in the certification provided for in article 78-D of CIVA.
https://dre.pt/application/file/a/172827478
Ordinance no. 207/2021, of October 15: Amends the “Totoloto” Regulations, approved by Ordinance no. 102/2011, of March 11.
https://dre.pt/application/file/a/172901281
Ordinance no. 208-A/2021, of October 15: Makes the first amendment to Ordinance no. 301-A/2018, of November 23, which sets the value of the unit tax rates on petroleum and energy products (ISP), applicable on the continent to unleaded gasoline and diesel for road use.
https://dre.pt/application/file/a/172967090
Ordinance No. 209/2021, of October 18: Approves the model of standard notice/complaint of domestic violence, hereinafter referred to as “Auto VD”, to be used by the National Republican Guard, Public Security Police, Judicial Police and Public Prosecution Services in situations of domestic violence.
https://dre.pt/application/file/a/172967085
Decree-Law no. 84/2021, of October 18: Regulates consumer rights in the purchase and sale of digital goods, content and services, transposing Directives (EU) 2019/771 and (EU) 2019/770.
https://dre.pt/application/file/a/172967083
Decree Law no. 86/2021, of October 19: Transposes Directive (EU) 2019/1161, establishing the legal regime concerning the promotion of clean road transport vehicles in favour of low-emission mobility.
https://dre.pt/application/file/a/173035760
Declaration no. 16/2021, of October 21: Management account of the Assembly of the Republic for the year 2020.
https://dre.pt/application/file/a/173106032
Law no. 69-A/2021, of October 21: Creates the possibility of fixing maximum marketing margins for simple fuels, amending Decree Law no. 31/2006, of 15 February.
https://dre.pt/application/file/a/173163556
Resolution of the Assembly of the Republic no. 269/2021, of October 29: Recommends that the Government establish the National Anemia Day and create a national strategy for the prevention and treatment of anemia.
https://dre.pt/application/file/a/173593104
Resolution of the Assembly of the Republic no. 270/2021, of October 29: Recommends that the Government develop and implement an integrated national strategy to combat loneliness as a strategic axis of public health.
https://dre.pt/application/file/a/173593105
10.3.1. Court of Justice of the European Union
Judgment of the General Court of 6 October, Case No. T-32/21: European Union trade mark. European Union word mark Muresko. Earlier national word marks Muresko. Claiming seniority of earlier national marks after registration of the European Union trade mark. Articles 39 and 40 of Regulation (EU) 2017/1001. Registration of earlier national marks which have expired on the day of the claim.
Summary:
“In the light of the foregoing assessments, the Board of Appeal did not err in law by interpreting, in paragraph 12 of the contested decision, Article 40 of Regulation 2017/1001, in conjunction with Article 39 of that regulation, to the effect that the identical earlier national trade mark whose seniority is claimed for the benefit of a subsequently registered European Union trade mark must be registered and in force on the date on which the seniority claim is filed.”
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:62021TJ0032
Judgment of the Supreme Court of Justice, of October 7, Case No. 161/16.7T9AND.P1.S
Summary:
“I- The judgment of the Court of Appeal which, on appeal, terminates the procedural relationship by declaration of prescriptive termination of the criminal proceedings, is not a decision of merit, since it does not know or decide on the subject matter of the proceedings defined in the indictment or indictment.
II- Accordingly, it is not appealable to the Supreme Court of Justice, due to the prohibition of article 432 no. 1 alias b) and 400 no. 1 alias c) of the CPP“.
Acórdão do Supremo Tribunal de Justiça (dgsi.pt)
Judgment of the Appeal Court of Porto, of October 4, Case No. 2079/20.0T8STS.P1: Special Revitalisation Process. Change of circumstances. Second petition. Homologation. Opposition. Creditor. Burden of allegation and proof.
Summary:
“I – Submission to a new PER when a previous agreement ratified in a PER is in the enforcement phase does not in itself show a situation of insolvency of the debtor, given the alteration of the circumstances that were present in the previous PER.
II – Adopting the same criterion of payment in relation to all common claims, without any opposition from these, the principle of equality appears to be guaranteed.
III – It was an onus of the creditor that came to oppose the ratification of the revitalisation plan to allege the extinctive or impeding facts of the debtor’s right by demonstrating that the debtor’s assets were sufficient to guarantee the payment of the credits of the employees in insolvency proceedings“.
Acórdão do Tribunal da Relação do Porto (dgsi.pt)
Judgment of the Appeal Court of Coimbra, of October 6, Case no. 251/19.4BCLD.C1: Change of the legal qualification of the facts included in the indictment. Timeliness.
Summary:
“I- The change provided for by article 358 of the Code of Criminal Procedure, has to occur in trial, and already in the collation of the evidence made available and produced therein.
II- At the time of the order referred to in article 311 of the Code of Criminal Procedure, if a clear error of subsumption of the facts in the indictment is not evident, the judge may not convert the facts into another legal type of crime, out of respect for the principle of accusation.”.
Acórdão do Tribunal da Relação de Coimbra (dgsi.pt)
Judgment of the Court of Appeal of Coimbra, of October 12, Case No. 3682/20.3T9LRA.C1: Liability of legal person or equivalent.
Summary:
“I – Article 7(2) of the General Regime of Administrative Offences requires an extensive interpretation in order to include within its scope the employees, the directors and managers and the agents or representatives of the legal person or equivalent, of this acting in the exercise of their functions or because of them.
II – The administrative offence liability of legal persons, being based on a direct and autonomous imputation, does not require the identification or individualisation of the natural person carrying out the typical and unlawful action“.
Acórdão do Tribunal da Relação de Coimbra (dgsi.pt)
Judgment of the Court of Appeal of Lisbon, of October 12, Case No. 24272/17.2T8LSB-F.L1-1: Proposal. Advantage for the insolvent estate. Guarantee of compliance.
Summary:
“1 – No. 5 of Article 161 of CIRE, unlike no. 3 of Article 164 of the same law, does not provide any time limit for the exercise of the right to request that the sale be suspended and a meeting of creditors be convened. Naturally, it will have to be exercised until the projected sale takes place, which is why the law requires at least 15 days prior notice in the communication in no. 4.
2 – When considering the plausibility of the advantage for the insolvent estate in the sale to another interested party, in the terms and for the purposes of no. 5 of article 161 of CIRE, the presentation of a proposal for acquisition at a higher price is not sufficient, it is necessary to have some guarantee that a firm proposal, accepted and guaranteed, will not be substituted by a proposal without any guarantee of fulfilment which, in the event of non-compliance, would leave the estate in a situation of having to return the deposit, compensate the losses of the proposed purchaser and restart the sale process“.
Acórdão do Tribunal da Relação de Lisboa (dgsi.pt)
Judgment of the Court of Appeal of Lisbon, of October 12, Case No. 4270/21.2T8SNT-B.L1-1: Bank credits. PERSI (Extrajudicial procedure for settlement of default situations). Insolvency. Innominate dilatory objection.
Summary:
“I – The out-of-court procedure for the regularisation of situations of non-compliance (PERSI), established by Decree-Law 227/2012, of 25 October, has mandatory application when the bank customer (consumer) incurs a situation of default or non-compliance with obligations arising from credit agreements, in the manner consigned by its articles 2, no. 1, and 14, no. 1.
II – The recourse to such procedure constitutes a previous condition of admissibility and procedurality for the filing of an action by which the banking institution petitions for the declaration of insolvency of bank customers who are in breach of the loan agreement with mortgage for the acquisition of property that corresponds to the family home and constitutes the family’s own permanent residence.
III – If such an action is brought in violation of that obligation, it will be a dilatory innominate objection, which cannot be raised and is known of its own motion, resulting in the acquittal of the defendants.
IV – The pendency of tax executions with a record of seizure in favour of the National Treasury on a date prior to that on which the obligations arising from the credit contract ceased to be fulfilled does not dispense with including the debtors in the PERSI, when the seizures relate to property that is the bank customers family home (their own permanent residence)“.
Acórdão do Tribunal da Relação de Lisboa (dgsi.pt)
Judgment of the Appeal Court of Guimarães, of 7 October, Case No. 753/20.0T8VNF-D.G1: Insolvency proceedings. Special Real Estate Privilege. Labour claims.
Summary:
“I – The special real estate privilege referred to in Article 333, no. 1, paragraph b) of the Labour Code, covers all the employer’s real estate affected to its business activity, to which the employees are functionally linked.
II – This connection does not have to be naturalistic, i.e. does not necessarily have to do with the physical location of each worker’s workstation, but merely functional, for this purpose it is sufficient that the real estate is part of the productive organisation of the company to which the workers belong.
III – A restrictive interpretation, merely naturalistic, would introduce unjustified differentiated treatment of workers of the same company, according to the professional activity of each one and the place where they carry out that activity.
IV – Given the special nature and purpose of insolvency proceedings and the extended participation of various intervening parties, the court may rely on elements in the proceedings to assess the connection between the property seized and the insolvent’s work activity, based on the principle of procedural acquisition“.
Acórdão do Tribunal da Relação de Guimarães (dgsi.pt)
10.3.4. Administrative and Tax Courts
Judgment of the Supreme Administrative Court, of October 6, Case No. 0351/14.7BECBR: Opposition to tax execution. Lack of essential requirements of the enforcement order. Concrete illegality. Supplementary social security benefits. Reposition of amounts. Limitation period.
Summary:
“I – The lack of essential requirements of the enforcement order, which, when it cannot be remedied by documentary evidence, constitutes an irreparable nullity of the tax enforcement procedure – article 165, no. 1, paragraph b), of the CPPT -, does not constitute grounds for opposition, and is not framed within paragraph i) of no. 1 of article 204 of the same Code.
II – The actual illegality of the act giving rise to the enforceable debt is only permitted as grounds for opposing a tax enforcement action in the rare situations in which “the law does not ensure a judicial means of challenging or appealing against the assessment act” [cf. article 204(1)(h) of the CPPT], i.e. when the enforceable debt does not originate from a previous tax or administrative act.
III – The limitation period for the obligation to restitute sums unduly received as social security benefits is provided for in Article 13 of Decree-Law no. 133/88, of 20 April, and was 10 years until 16 May 2018.
IV – The counting of that time limit begins from the entry into force of that diploma, but taking into account the time which had elapsed until then of the previous time limit, in terms of no. 2 of the aforementioned art. 149 of the same diploma.
IV – Counting of that period begins with the notification to restitute (Cf. art. 13 of Decree-Law no. 133/88, of 20 April) and is interrupted, with lasting effects, with the citation of the debtor (Cf. art. 327, no. 1, of CC).”.
Acórdão do Supremo Tribunal Administrativo (dgsi.pt)
Judgment of the Supreme Administrative Court of 6 October, Case No. 02237/20.7BEBRG: Complaint. CPPT. Request. Waiver of guarantee. Time limit. Complaint to conference.
Summary:
“I – The taxpayer may at any time request the waiver of the provision of a guarantee but in order to obtain the useful effect sought by him of the suspension of the enforcement it is that he needs to submit it within a certain time limit.
II – The expiry of any of the time limits provided for in Article 170 of the CPPT does not release the Tax Administration from considering the request to provide a guarantee or to waive the guarantee on the grounds that the request is untimely. While the execution is pending, such requests may always be formulated and must be examined.
III – The time limits in Articles 169 and 170 are time limits during which the Tax Administration may not proceed with the enforcement. Once these periods have elapsed, the enforcement action can and must continue even if an application for a guarantee waiver submitted in the meantime is pending.
In other words, if an opposition has been filed, the tax debtor has a period of 15 days to request the provision of a guarantee or its waiver and the enforcement cannot proceed until the request has been examined“.
Acórdão do Supremo Tribunal Administrativo (dgsi.pt)
Judgment of the Supreme Administrative Court, of October 6, Case No. 0185/18.0BELRA: Opposition to tax execution. Inexigibility. Suspension of tax execution.
Summary:
“I – The opposition to the tax execution may aim at the suspension of the tax execution (and not, as a rule, its extinction, partial or total), in cases where the enforceability of the debt is affected for a non-definitive reason, such as, v.g., when the tax execution was initiated when an administrative claim or a judicial challenge was already pending with a guarantee already provided or its provision requested and not yet decided.
II – The filing of a Graciosa Complaint and consequent Judicial Disputes, with provision of guarantee, before the expiration of the term for the voluntary payment of the tax, does not prevent the commencement of the tax execution, but nothing more can be done and, if the execution is commenced, the interested party may file a judicial opposition on the basis of the unenforceability of the debt, under the terms of article 204/1/ i) of the CPPT, with a view to the suspension of the execution, with the annulment of all the steps and procedural acts that were unduly carried out“.
Acórdão do Supremo Tribunal Administrativo (dgsi.pt)
Judgment of the Supreme Administrative Court, of October 6, Case No. 1545/06.4BCLSB: Corporate Income Tax. Company merger. Transferability of tax losses.
Summary:
“I – There is no nullity for excessive pronouncement of the appealed decision that does not limit itself to annul the express act of rejection of the request of deduction, by the company resulting from a merger operation, of the tax losses of the merged companies, if in the initial petition it was requested that the court pronounce itself on the due act and that it do so in the sense in conformity with an invoked tacit act of approval.
II – The concept of “valid economic reasons” which Article 69(2) of the CIRC, in the wording in force in 2005, makes dependent on the authorisation of the transfer of tax losses of companies merged within a merger operation is not a “discretionary concept” and the administrative judgment and evaluation parameters used by the Tax Administration in the densification of this concept and its application to the case may be questioned by the courts;
III – The administrative decision which rejects the request for authorisation formulated under the terms of the preceding paragraph on the grounds that there is no demonstration of the economic validity of the operation based solely on the parameters which the administration itself sets out, without formulating any judgement on the existence or predominance of tax interests in the decision to carry out the operation and even disregarding the fact that it is not foreseeable that there will be any tax consideration, considering the expected tax results in the short term, is illegal and should be revoked“.
Acórdão do Supremo Tribunal Administrativo (dgsi.pt)
Monographs and Periodic Publications
Adelaide Menezes Leitão, Insolvência Bancária e Responsabilidade Civil, Almedina, outubro de 2021.
APDIR, A Diretiva sobre Reestruturação e Insolvência, Almedina, outubro de 2021.
Carlos Cunha Gonçalves, As Notificações em Procedimento Tributário – Análise aos Conceitos Essenciais à sua Compreensão, Almedina, outubro de 2021.
Direito das Sociedades em Revista, Ano XIII, Vol. 26, Almedina, outubro de 2021.
Dulce Lopes, Afonso Patrão, Lei da Mediação Comentada, 2.ª Edição, Almedina, outubro de 2021.
Edgar Valles, Atos Notariais do Advogado e do Solicitador, 8. ª Edição, Almedina, outubro de 2021.
Francisco Pereira Coutinho, Independência na União Europeia, Almedina, outubro de 2021.
João de Travassos, O Presidente (da Mesa) da Assembleia Geral – A Problemática da Cessação das Funções do Presidente Permanente, Almedina, outubro de 2021.
Joaquim de Sousa Ribeiro, Direitos Sociais e Vinculação do Legislador, Almedina, outubro de 2021.
José Carlos Vieira de Andrade, A Justiça Administrativa – Lições, 19.ª Edição, Almedina, outubro de 2021.
Jorge Bacelar Gouveia, Manual de Direito Constitucional- Volume I, 7.ª Edição, Almedina, outubro de 2021.
Jorge Bacelar Gouveia, Manual de Direito Constitucional- Volume II, 7.ª Edição, Almedina, outubro de 2021.
Jorge Reis Novais, Semipresidencialismo – Teoria Geral e Sistema Português, 3.ª Edição, Almedina, outubro de 2021.
Maria do Rosário Palma Ramalho, Tratado de Direito do Trabalho Parte II -Situações Laborais Individuais, 8.ª Edição, Almedina, outubro de 2021.
Miguel Pestana de Vasconcelos, Direito Bancário, 3.ª Edição, Almedina, outubro de 2021.
O Direito, Ano 153.º, Número III, Almedina, outubro de 2021.
Paula Quintas, Manual Prático de Direito das Obrigações, 4.ª Edição, Almedina, outubro de 2021.
Paulo Ramirez, Direito Comercial, 3.ª Edição, Almedina, outubro de 2021.
Pedro Costa Gonçalves, Licínio Lopes Martins, Pedro Santos Azevedo, As Medidas Especiais de Contratação Pública – Anotadas, 2.ª Edição, Almedina, outubro de 2021.
Revista de Direito das Sociedades, Ano XIII (2021) – Número 1, Reimpressão 2021, Almedina, outubro de 2021.
Teresa Coelho Moreira, Direito do Trabalho na Era Digital, Almedina, outubro de 2021.
Tobias Hamann, O New Deal da Sociedade em Comandita em Portugal- Um Mecanismo para a Perpetuação do Poder Societário, Almedina, outubro de 2021.
10.4.2. Generic Guidelines & Cia
Economy, Finance and Taxation
On 6 of October, the Resolution of the Assembly of the Republic no. 253/2021 was published in the Diário da República, which approved, on 17 September, the report and management account of the Assembly of the Republic, for the year 2020.
Resolução da Assembleia da República n.º 253/2021
On 11 of October 2021, the Draft-Law no. 116/XIV/3, for the approval of the State Budget for 2022, was delivered by the Minister of State and Finance to the President of the Assembly of the Republic, an act that marked the beginning of the budget processing process.
The outcome of the vote on the State Budget, in the Assembly of the Republic, culminated with the rejection of the Draft-Law prepared by the Government, on 27 October 2021.
The documentation and all the procedures of the budget process may be consulted on the page created for this purpose, available on the website of the Assembly of the Republic.
Orçamento do Estado para 2022 (parlamento.pt)
The Council of Ministers approved, on October 28, the Decree-Law establishing a financial subsidy, of transitional and exceptional nature, to be granted to citizens, in the fuel sector.
The respective financial subsidy will be attributed between November of 2021 and March of 2022, using the IVAucher Program support platform. The benefit corresponds to a reimbursement of 10 cents per litre of fuel (in a total of 50 litres/month), being transferred directly to each consumer’s bank account.
The National Institute for Industrial Property (INPI) attended the 62nd series of meetings of the Assemblies of the Member States of the World Intellectual Property Organization (WIPO), which ran until 8th of October, in Geneva.
The agenda of the Assemblies focused on various themes, highlighting matters relating to Institutional Matters, the Budget and its Supervision, WIPO Committees, the International Regulatory Structure, and Global Intellectual Property Services.
The President of INPI of Portugal, highlighted that “despite the adversities resulting from the COVID-19 crisis, the systems administered by WIPO continued to show all their vitality, and the organization was able to adjust effectively to the new challenges and opportunities“.
INPI participa nas Assembleias dos Estados-membros da OMPI 2021 (justica.gov.pt)
The ECP7 project (European Cooperation Projects), of the European Union Intellectual Property Office (EUIPO), will organize until the end of this year, in collaboration with the national Intellectual Property Offices and users associations, a set of webinars, aiming to address the changes introduced in the transposition of the Trademark Harmonization Directive, in each Member State.
In Portugal, the webinar presented by INPI’s staff took place on 14 of October.
EUIPO organiza Webinar sobre a Diretiva de Marcas (justica.gov.pt)
The provisional statistical data, from January to September of 2021, regarding Industrial Property Rights applications and concessions was published on 20 of October. In particular, the concessions of inventions registered an increase of 46.3%, compared to the corresponding period in 2020.
Statistical, annual, half-yearly and monthly data on Industrial Property Rights are available at the IP Observatory.
Direitos de Propriedade Industrial de janeiro a setembro 2021 (justica.gov.pt)
In order to fulfil INPI’s Strategic Plan 2020-2023, the National Institute of Industrial Property launched, in Video format, on 28 of October, the balance of the first year of execution of the Strategic Plan.
It highlights, in terms of strategic guidelines to be developed by INPI, are the guarantee of quality in the attribution and protection of Industrial Property Rights, the incentive and support in innovation in Portugal, with the consequent supply of better services to users.
Balanço anual da execução do Plano Estratégico do INPI em vídeo (justica.gov.pt)
E-LEGAL® NEWSLETTER – NOVEMBER 2021
11.1. EDITORIAL – AMENDMENT TO THE JUDICIAL SYSTEM ORGANIZATION LAW; ALTERATION TO THE REGIME APPLICABLE TO THE ORGANIZATION AND FUNCTIONING OF THE JUDICIAL COURTS
In terms of legislation, November was characterised by the approval and publication of Law no. 77/2021 of November 23, which amended the Law on the Organisation of the Judicial System and Decree-Law no. 49/2014 of March 27, which establishes the system applicable to the organisation and functioning of the judicial courts.
Also worthy of note at the legislative level are:
I) Law no. 70/2021, of November 4, which established the exemption from stamp duty on operations to restructure or refinance loans in default.
II) Ordinance no. 249/2021, of November 12, which approved the new Model RC 3048-DGSS, called Annex SS, and the respective Instructions for Completing the form.
In the scope of case law, it is worth mentioning the Judgment of the Guimarães Court of Appeal, of November 4, Case no. 121/20.3T8BCL.G1, which clarified that “In order to conclude that there are false statements on justification of absences due to incapacity for work due to illness, it is necessary to demonstrate the falsity of the statements contained in the incapacity certificate and that the worker knowingly falsified the truth of the facts with a view to deceiving the employer. The fact that the worker does not comply with the conditions relating to the possibility of being away from home, set out in the incapacity certificates, does not in itself imply that the worker is already fit for work“.
In the same context, the Judgement of the Coimbra Court of Appeal, of November 9, Case no. 2769/20.7T8LRA.C1, should also be noted, which decided that the provision of article 6-B, no. 5, paragraph d), of Law no. 1-A/2020, of 19 March, in the wording of that Law no. 4-B/2021, should be interpreted extensively in order to avoid the suspension of the time limits for filing an appeal, arguing nullities or requesting the rectification or reform of the decision, not only the decisions issued during the period of legal suspension of procedural time limits, but also those previously issued whose time limit for appeal had not yet expired.
Finally, regarding Miscellaneous, we highlight Council of Ministers Resolution of November 4, 2021, which approved an extraordinary and exceptional support to the sector of public road transport of passengers, to be supported by the Environmental Fund, in order to mitigate the effects of the cyclical increase in fuel prices.
It is also worth noting the creation, through Decree-Law no. 92-A/2021, of a financial subsidy, of a transitory and exceptional nature, to be granted to citizens for their fuel consumption, using the support platform of the “IVAucher” Program – the so-called “AUTOvoucher”.
Ordinance no. 231/2021, of November 2: Amends Ordinance no. 203/2021, of September 28, which establishes an indirect cost aid measure in favour of facilities covered by the European Emissions Trading Scheme (EETS), pursuant to Decree-Law no. 12/2020, of April 6.
https://files.dre.pt/1s/2021/11/21200/0000700008.pdf
Decree-Law no. 88/2021, of November 3: Develops the electronic authentication system for citizens “Digital Mobile Key”.
https://files.dre.pt/1s/2021/11/21300/0000600014.pdf
Decree-Law no. 89/2021, of November 3: Regulates norms of the Housing Framework Law regarding the guarantee of alternative housing, the legal right of preference and the inspection of housing conditions.
https://files.dre.pt/1s/2021/11/21300/0001500022.pdf
Council of Ministers Resolution no. 143/2021 of November 3: Approves the pilot project for the implementation of the “legislative footprint” principle within the governmental legislative procedure.
https://files.dre.pt/1s/2021/11/21300/0002300024.pdf
Council of Ministers Resolution no. 144/2021 November 3: Determines the provision of the universal postal service by a single provider throughout the national territory.
https://files.dre.pt/1s/2021/11/21300/0002500029.pdf
Council of Ministers Resolution no. 147/2021, of November 3: Extends until December 2022 the programme “From Housing to Habitat”.
https://files.dre.pt/1s/2021/11/21300/0003700037.pdf
Law no. 70/2021, of November 4: Stamp duty exemption on restructuring or refinancing operations of loans in default.
https://files.dre.pt/1s/2021/11/21400/0000200002.pdf
Ordinance no. 235-A/2021, of November 4: Makes the third amendment to Ordinance no. 246-A/2016, of September 8, regarding the conditions and procedures of the reimbursement and marking regime, respectively, of “professional diesel”.
https://files.dre.pt/1s/2021/11/21401/0000200003.pdf
Decree-Law no. 92/2021, of November 8: Extends the validity of the extraordinary company viability process regime.
https://files.dre.pt/1s/2021/11/21600/0000500006.pdf
Ordinance no. 237/2021, of November 8: Amendment to Ordinance no. 934/2006, of September 8, which approves the Fees Regulation.
https://files.dre.pt/1s/2021/11/21600/0000700013.pdf
Decree-Law no. 92-A/2021, of November 8: Establishes a financial subsidy, of a transitional and exceptional nature, to be granted to citizens for their consumption in the fuel sector.
https://files.dre.pt/1s/2021/11/21601/0000200004.pdf
Decree-Law no. 93/2021, of November 9: Establishes a remuneration supplement based on the performance of duties in hazardous and unhealthy conditions.
https://files.dre.pt/1s/2021/11/21700/0002100023.pdf
Ordinance no. 243/2021, of November 9: Percentage to be allocated to the Tax Stabilisation Fund.
https://files.dre.pt/1s/2021/11/21700/0002800028.pdf
Council of Ministers Resolution no. 152/2021 of November 10: Authorises expenditure on the financial subsidy, of a transitional and exceptional nature, to be granted to citizens for their consumption in the fuel sector.
https://files.dre.pt/1s/2021/11/21800/0000800009.pdf
Ordinance no. 245/2021, of November 10: Ordinance that changes and republishes the official model of the Stamp Duty Monthly Statement and respective instructions for completion.
https://files.dre.pt/1s/2021/11/21800/0001000017.pdf
Ordinance no. 248-A/2021, of November 11: Amendment to the Regulations of the APOIAR Programme.
https://files.dre.pt/1s/2021/11/21901/0000200004.pdf
Law no. 72/2021, of November 12: Allows the use of medically assisted procreation techniques through insemination with semen after the death of the donor, in cases of expressly consented parental projects, amending Law no. 32/2006, of July 26 (medically assisted procreation).
https://files.dre.pt/1s/2021/11/22000/0000300005.pdf
Law no. 73/2021, of November 12: Approves the restructuring of the Portuguese border control system, reformulating the regime of the forces and services that exercise the internal security activity and establishing other rules for the reallocation of powers and resources of the Border and Immigration Service, amending Laws no. 53/2008, of August 29, 53/2007, of August 31, 63/2007, of November 6, and 49/2008, of August 27, and revoking Decree-Law no. 252/2000, of October 16.
https://files.dre.pt/1s/2021/11/22000/0000600013.pdf
Council of Ministers Resolution no. 153/2021 of November 12: Creates extraordinary and exceptional support for the public passenger transport sector in order to mitigate the effects of the escalation of fuel prices.
https://files.dre.pt/1s/2021/11/22000/0002100022.pdf
Ordinance no. 249/2021, of November 12: Approves the new Model RC 3048-DGSS, designated Annex SS, and the respective Instructions for Completion.
https://files.dre.pt/1s/2021/11/22000/0002400027.pdf
Law no. 74/2021, of November 18: Amendment to the framework rules of the Local Economy Support Programme.
https://files.dre.pt/1s/2021/11/22400/0000200003.pdf
Law no. 75/2021, of November 18: Strengthens access to credit and insurance contracts by people who have overcome or mitigated situations of aggravated health risk or disability, prohibiting discriminatory practices and enshrining the right to be forgotten, amending Law no. 46/2006, of August 28, and the legal framework of the insurance contract.
https://files.dre.pt/1s/2021/11/22400/0000400008.pdf
Ordinance no. 255-A/2021, of November 18: Establishes an exceptional and temporary co-payment scheme for rapid antigen tests (TRAg) for professional use.
https://files.dre.pt/1s/2021/11/22401/0000200004.pdf
Ordinance no. 257/2021, of November 19: Regulates the regime of the injunction procedure in matters of lease.
https://files.dre.pt/1s/2021/11/22500/0012700169.pdf
Law no. 77/2021 of November 23: Amends the Law on the Organization of the Judicial System and Decree-Law no. 49/2014 of March 27, which establishes the regime applicable to the organization and functioning of the judicial courts.
https://files.dre.pt/1s/2021/11/22700/0000200005.pdf
Ordinance no. 262/2021, of November 23: Approves the Regulations of the Incentive Scheme for Companies “Promotion of Sustainable Bioeconomy”.
https://files.dre.pt/1s/2021/11/22700/0001400033.pdf
Law no. 78/2021, of November 24: Regime for preventing and combating unauthorised financial activity and consumer protection.
https://files.dre.pt/1s/2021/11/22800/0000300008.pdf
Law no. 79/2021, of November 24: transposes Directive (EU) 2019/713 of the European Parliament and of the Council of 17 April 2019 on combating fraud and counterfeiting of non-cash means of payment, amending the Criminal Code, the Code of Criminal Procedure, Law no. 109/2009, of September 15, approving the Cybercrime Law, and other legislative acts.
https://files.dre.pt/1s/2021/11/22800/0000900038.pdf
Ordinance no. 267/2021, of November 26: Revises the regulations on procedures for entering into advance pricing agreements (APAs), under article 138 of the IRC Code.
https://files.dre.pt/1s/2021/11/23000/0001000020.pdf
Ordinance no. 268/2021, of November 26: Revises the transfer pricing regulations in operations carried out between an IRS or IRC taxpayer and any other entity, under article 63 of the IRC Code.
https://files.dre.pt/1s/2021/11/23000/0002100043.pdf
11.3.1. Court of Justice of the European Union
Judgment of the Court of Justice of the European Union of November 18, Case C-413/20: Reference for a preliminary ruling. Air transport. Regulation (EU) No 1178/2011. Technical requirements and administrative procedures applicable to civil aviation crews. Annex I, Appendix 3, point A, paragraphs 9 and 10. Commercial pilot licence training course. In-flight training. Instrument ground time. Calculation Simulator training. Skill test. Principle of legal certainty. Limitation in time of the effects of a preliminary ruling.
Summary:
“1) Annex I, Appendix 3, point A, paragraph 9(e) of Commission Regulation (EU) No 1178/2011 of 3 November 2011 laying down technical requirements and administrative procedures for civil aviation aircrew in accordance with Regulation (EC) No. No 216/2008 of the European Parliament and of the Council, as amended by Commission Regulation (EU) 2018/1119 of 31 July 2018, must be interpreted as meaning that, in order to calculate the 115 hours of instrument time provided for in that provision, it is not possible to count more than 55 hours of instrument time on the ground.
2) Annex I, Appendix 3, point A, paragraph 2011, to Regulation No 1178/2011, as amended by Regulation 2018/1119, must be interpreted as meaning that, in the event that an applicant has successfully completed the skill test before having completed all the required training hours, the CPL(A) licence can be granted to him only after he has completed his training and repeated the corresponding skill test.”
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62020CJ0413
Judgment of the Court of Justice of the European Union of November 18, Case no. C-358/20: Reference for a preliminary ruling. Harmonisation of tax laws. Common system of value added tax (VAT). Directive 2006/112/EC. Right to deduct VAT. Cancellation of the VAT identification of a taxable person. Refusal of the right to deduct. Formal conditions.
Summary:
“Article 168, Article 213(1), Article 214(1) and Article 273 of Council Directive 2006/112/EC of 28 January 2006 on the harmonisation of the laws of the Member States relating to turnover taxes. Article 168, Article 213(1), Article 214(1) and Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, and the principle of the neutrality of value added tax (VAT), read in the light of the principles of legal certainty, the protection of legitimate expectations and proportionality, must be interpreted as meaning that they do not preclude in a case in which a taxable person’s VAT identification has been cancelled as a result of a failure to declare taxable transactions in his VAT returns submitted in respect of six consecutive months, but where that taxable person continues his activities despite that cancellation, national legislation which enables the competent tax authority to require that taxable person to charge the VAT due on his taxed transactions, provided that he may request a new VAT identification and deduct the input VAT. The fact that the taxable person’s administrator is a partner in another company subject to insolvency proceedings cannot, as such, be relied on in order systematically to refuse that taxable person new identification for VAT purposes’.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62020CJ0358
Judgment of the Court of Justice of the European Union of November 24, Case no. C-564/19: Reference for a preliminary ruling. Judicial cooperation in criminal matters. Directive 2010/64/EU. Article 5. Quality of interpretation and translation. Directive 2012/13/EU. Right to information in criminal proceedings. Article 4(5) and Article 6(1) Right to information about the accusation. Right to interpretation and translation. Directive 2016/343/EU. Right to an effective remedy and to a fair trial. Article 48(2) of the Charter of Fundamental Rights of the European Union. Article 267 TFEU. Article 19(1), second subparagraph, TEU. Admissibility. Appeal in the interest of the law from a decision making a reference for a preliminary ruling – Disciplinary proceedings – Power of the higher court to declare the reference for a preliminary ruling unlawful.
Summary:
“1) Article 267 TFEU must be interpreted as precluding the supreme court of a Member State from declaring, following an appeal in the interest of the law, that a reference to the Court of Justice for a preliminary ruling made by a lower court under that provision is unlawful on the ground that the questions referred are not relevant and necessary to the resolution of the dispute in the main proceedings, without, however, affecting the legal effects of the decision containing that reference. The principle of the primacy of European Union law requires that lower court not to apply that decision of the highest national court.
2) Article 267 TFEU must be interpreted as precluding disciplinary proceedings from being brought against a national court on the ground that it made a reference to the Court of Justice for a preliminary ruling under that provision.
3) Article 5 of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings must be interpreted as requiring the Member States to take concrete measures to ensure that the quality of the interpretation provided and of the translations provided is sufficient to enable the suspect or accused person to understand the accusation against him and that that interpretation is subject to review by the national courts.
4) Article 2(5) of Directive 2010/64, Article 4(5) and Article 6(1) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, read in the light of Article 48(2) of the Charter of Fundamental Rights of the European Union, must be interpreted in such a way as to ensure that the interpretation provided is sufficient to enable the suspect or accused person to understand the accusation against him and to enable that interpretation to be subject to review by the national courts. Article 47(2) of the Charter of Fundamental Rights of the European Union must be interpreted as precluding a person from being tried in absentia where, owing to an inadequate interpretation, he has not been informed, in a language which he understands, of the charge against him or where it is impossible to determine the quality of the interpretation provided and, therefore, to establish that he has been informed, in a language which he understands, of the charge against him.”
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0564
Judgment of the Constitutional Court No. 850/2021, of November 5, Case no. 1111/2021:
Declares that it has no jurisdiction to hear and determine the appeal, since the deliberation of the National Electoral Commission that is part of its subject matter cannot be challenged before the Constitutional Court.
http://www.tribunalconstitucional.pt/tc/acordaos/20210850.html
Judgment of the Constitutional Court No. 852/2021, of November 5, Case no. 1113/2021:
It does not allow an appeal against a decision of the National Electoral Commission as it does not constitute, in any of its two aspects, an electoral administration act susceptible of being challenged.
Declares that it has no jurisdiction to hear and determine the appeal, since the deliberation of the National Electoral Commission that is part of its subject matter cannot be challenged before the Constitutional Court.
http://www.tribunalconstitucional.pt/tc/acordaos/20210852.html
Judgment of the Constitutional Court No. 856/2021, of November 9, Case no. 1048/2021:
Following the delivery of Judgment 285/2021, the parties were notified to, if they so wished, submit allegations as to the invoked unconstitutionality of the rule contained in Article 12 of the legal regime that approved the Extraordinary Contribution on the Energy Sector (CESE), approved by Article 228 of Law no. 83-C/2013, of 31 December, and which was applied in the appealed decision. Only the Appellant has claimed, defending that the prohibition of the deduction of the CESE on corporate income tax, contained in Article 12 of the regime of the tax, determines that it is a true tax, due to its alleged particular contribution capacity, and for such, the CESE is materially unconstitutional, for violation of the principle of contribution capacity, sub-principle in which the constitutional principle of Equality (Article 13 of the Constitution) is concretized in the field of taxes. Its subjective tax base affects taxpayers who have little or nothing to do with the declared purposes of the “contribution”.
When analysing the issue, the Court decided, citing Ruling no. 301/2021, that the allegations produced by the appellant deviated from the initial configuration of the problem, by directing only censure to the rules of subjective and objective incidence of the tax – which had already been subject of appreciation in Summary Decision no. 229/2020.
Therefore, the Court concluded that the issue of unconstitutionality of Article 12 of the legal regime of the EESC, as raised in the complaint filed against this summary decision, is manifestly unfounded.
http://www.tribunalconstitucional.pt/tc/acordaos/20210856.html
Judgment of the Constitutional Court no. 858/2021, of November 9, Case no. 1028/2021:
Following the appeal to the Constitutional Court from the Guimarães Appeal Court, the appellant asked the Constitutional Court to “assess the unconstitutionality of article 374 of the Code of Criminal Procedure (CPP) when applied in the sense that proven and unproven facts do not have to determine the circumstances of time and place in which the offences imputed to the accused occurred” – thus delimiting, as the object of the appeal, a particular normative interpretation of article 374 of the CPP which he understands to have sustained the decision of the court of first instance.
In this regard, the Constitutional Court considered that the appealed decision did not at any point formulate the alleged interpretation whose constitutionality is questioned by the now complainant, and concluded that the constitutionality appeal was inadmissible, as the appellant had not raised any question of unconstitutionality before the appealed court, and also because the rule under review did not correspond to the ratio decidendi of the appealed decision.
http://www.tribunalconstitucional.pt/tc/acordaos/20210858.html
Judgment of the Supreme Court of Justice, of November 9, Case no. 352/16.0T8VFX-Y.L1.S1: Insolvency administrator. Removal from office. Interlocutory decision. Decision that does not end the proceeding. Review appeal. Admissibility of appeal. Presupposition. Nullity of judgment. Rejection of appeal. Right to appeal. Principle of proportionality. Constitutionality.
Summary:
“I – The request for dismissal of the insolvency administrator, as follows from the regime laid down in the CIRE (cf. article 56 and respective systematic insertion), integrates an incident inserted in the main insolvency proceeding, the appeal being subject to the regime of article 14(1) of the CIRE.
II – Even if this is not the case, it is to be considered that the appellate decision, which appraises the decision that rejects the request, does not consider the merit, nor does it terminate the process (art. 671(1) of the CPC), but rather appraises an interlocutory decision on the procedural relationship.
III – In this case, the “continued” review will only be admissible under the terms of Article 671(2), of the CPC.
IV – The alleged nullities, although they may constitute grounds for the appeal (Article 674(1) (c), of the CPC), may not serve as exclusive grounds for its admissibility.
V – The requirement of contradiction of judgments (cf. article. 14 (1), of CIRE or article 671(2), of the CPC), as an admissibility requirement of the appeal is not arbitrary or disproportionate and does not violate any principle constitutionally consecrated”.
Judgment of the Supreme Court of Justice, of November 3, Case no. 3736/19.9T8VFX.L1.S1: Special company recovery proceedings. Relevant issue. Useless act. Impaired knowledge. Object of the appeal. Subordinated credit. Common credit. Reorganization plan.
Summary:
“I – If the PER is not homologated, the discussion on the nature of common and/or subordinate credit of a claim, as well as its credit nature, becomes completely extravagant.
II – A different situation would be if the plan had been approved, given that the aforementioned classification would always have relevance in terms of precedence of payments, as is clear from the normative included in article 48 of the CIRE.
III – But if the complainant/appellant did not question this operative part of the Judgement, e.g., the non-approval of the PER, the assessment of the object of the appeal is completely prejudiced”.
Judgment of the Lisbon Court of Appeal, of November 4, Case no. 2299/21.0YRLSB-2: Car insurance contract. Alteration of risk coverage. Notice.
Summary:
“I. It is not for the Appeal Court to take into consideration facts that were not alleged or discussed before the arbitral Court and which are not included in the matter of fact indicated in the contested award, nor are of its own motion known.
II. In the absence of an agreement authorising it, the effectiveness of a unilateral amendment to an insurance contract by the insurer, in this case the exclusion of cover for own damage in a motor vehicle insurance contract, is not produced by a mere written communication sent to the address of the policyholder, the latter remaining silent.
III. The effectiveness of a negotiating declaration sent by simple letter depends on its receipt by the addressee, namely its deposit in the respective postal addressee.
Notwithstanding the natural presumption that, as a rule, the letter arrives at the address indicated therein, the burden of proving such deposit lies with the creditor, should the addressee question the receipt of the letter and produce evidence thereon“.
Judgment of the Guimarães Court of Appeal, of November 4, Case no. 121/20.3T8BCL.G1: Unjustified Discharge. False statements. Certificate of temporary incapacity. Medical certificate.
Summary:
“I. In order to conclude that there were false statements regarding justification of absences due to incapacity for work due to illness, it is necessary to demonstrate the falsity of the statements contained in the certificate of incapacity and that the worker knowingly falsified the truth of the facts with a view to deceiving the employer.
The fact that the worker does not comply with the conditions relating to the possibility of being absent from home, set out in the incapacity certificates, does not in itself imply that he or she is already fit for work”.
Judgment of the Court of Appeal of Coimbra, of November 9, Case no. 2769/20.7T8LRA.C1: Covid 19. Suspension of procedural deadlines.
Summary:
“I. – The legislation suspending procedural deadlines within the scope of the measures to control the Covid 19 pandemic aimed at preventing the spread of the virus, whose contagion essentially occurs through personal contacts.
II. – However, with the legislation adopted in 2021 (Law no. 4-B/2021, of 01-02) an attempt was made to attenuate the negative effects of the suspension of time limits resulting from the exceptional legislation that came into force in 2020.
III. – Therefore, the provision of Article 6-B (5), paragraph d), of Law no. 1-A/2020, of 19-03, in the wording of that Law no. 4-B/2021, should be interpreted extensively, so as to contemplate – for the purposes of non-suspension of time limits for filing an appeal, arguing nullities or requesting rectification or reform of the decision – not only decisions issued during the period of legal suspension of procedural time limits, but also those previously issued whose time limit for appeal had not yet expired.
IV. – Thus, in relation to a sentence handed down prior to 22/01/2021, but whose appeal period was running on that date, there is no suspension of that period and consequent paralysis of the proceedings, which is understandable, given the public health reasons, in light of the interest of procedural speed and the prompt implementation of justice, as well as in view of the requirements of equal treatment”.
Judgment of the Court of Appeal of Coimbra, of November 9, Case no. 350/09.TBMBR-C.C1: Service by writ of summons. Executive process.
Summary:
“I. – The service by writ of summons of the defendant in enforcement proceedings depends on the verification of the impossibility of personal service, due to the defendant’s absence in an uncertain place, and is the last resort as regards the legal instruments of summons, since it is a “very precarious and contingent […] form of summons”, not generating confidence “as an effective means of informing the defendant that a certain action has been brought against him”.
II. – As it was not possible, in this case, to ascertain whether the defendant/citing party actually resided there, at either of the two addresses provided (the neighbours at the first address stated that no-one had resided there for more than two years and at the second address the other residents were unaware of the identification of the property’s residents), the situation was, therefore, one of uncertainty as to the effective address – and real whereabouts – of the defendant.
III. – As such, given that the possibility of the defendant residing, for the time being, at one of those addresses is not excluded, one cannot conclude, without further diligence – namely, as a last resort, the obtaining of information from the police authorities – that there is absence in an uncertain place, in terms in which one cannot opt for the service by edict”.
Judgment of the Supreme Court of Justice of November 10, Case no. 2475/18.2T8VFX-A.L1.S2: Exceptional Review. Legal relevance. Interests of particular social relevance.
Summary:
“The exceptional review appeal must be rejected outright when no concrete and objective reasons have been stated revealing any possible complexity or jurisprudential or doctrinal controversy of the issue, with the consequent need for an exceptional assessment with the aim of finding a solution that will guide similar cases.”
Judgment of the Court of Appeal of Coimbra, of November 10, Case no. 294/18.5GAACB.C1: Organized and economic-financial crime. Extended forfeiture of assets. Seizure. Purpose of seizure. Periculum in mora.
Summary:
“I – In the field of organised and economic-financial criminality, in the case of extended loss of assets, the decree of seizure (Article 10 of Law No. 5/2002, of 11-01, as amended by Law No. 30/2017, of 30-05), does not depend on the verification of periculum in mora, the founded fear of loss or substantial decrease in the guarantees of payment of the incongruous amount.
II – The new wording conferred to Article 10 (2) by Law no. 30/2017 must be understood as an additional requirement, special when compared with the one resulting from the general rule contained in no.3 of the same article, restricted to seizure requested before liquidation.
III – The seizure provided for in that rule (Article 10), whose sole purpose is to guarantee payment of the amount presumed to be an advantage of the criminal activity, applies, without any limitation, to assets owned by the defendant, which are not themselves the subject of the extended confiscation declaration”.
11.3.4. Administrative and Tax Courts
Judgment of the Supreme Administrative Court, of November 4, Case no. 06/21.6BALSB-A: Disciplinary proceedings. Enquiry proceedings. Guarantees of defence.
Summary:
“From article 214 of the former-EMP (270 of the new EMP) it expressly results that when the Magistrate of the Public Prosecutor’s Office is heard in the enquiry procedure, the same may become “the instructive part of the disciplinary procedure””.
Judgment of the Supreme Administrative Court of November 4, Case no. 0362/20.3BEMDL-S1: Public Procurement. Pre-contractual litigation. Suspensive effect. Serious damage to the public interest. Fighting forest fires.
Summary:
“I – The lifting of the automatic suspensive effect provided for in article 103(1) of the CPTA, at the request of the defendant entity, depends on demonstration of the seriousness of the damage that deferring execution of the act is likely to cause to the public interests defended by it in the proceedings.
II – The precaution inherent to the anticipated prevention of forest fire risks constitutes sufficient justification for the suspension of the awarding act to be lifted”.
Judgment of the Supreme Administrative Court, of November 4, Case no. 01960/20.0BEPRT: Object of the judicial review. New issue.
Summary:
“I – If the first-instance court only assessed and decided the issue raised by the Plaintiff, when challenging the grounds of the act of exclusion of her bid from the tendering procedure, practiced by the contracting authority, the Counterparty, expressly agreeing with the Plaintiff as to the illegality of such grounds for exclusion, cannot appeal against that judgment invoking, in the appeal, that another different cause of exclusion of the Plaintiff’s bid would impose the same decision by the contracting authority.
II – This case deals with the invocation of a “new issue” that was not examined in the contested decision (and that was also not examined in the administrative tender procedure), it being understood that the purpose of appeals is to examine contested decisions and not to examine “new issues” that were not examined in the contested decisions – articles 627 (1), 635 (2) and (3) and 639 (1) of the CPC, applicable “ex vi” of article 140 (3) of the CPTA.
III – Thus, this new issue – which is not known of its own motion – could not be known by the TCAN as an appellate court, as it is not known by the Supreme Administrative Court as a court of review appeal, since, moreover, if it were not, these courts would function as courts of first instance in relation to this ‘new issue'”.
Judgment of the Supreme Administrative Court, of November 10, Case no. 0209/13.7BECTB: Municipal Tax on the Onerous Transmission of Real Estate. Effects.
Summary:
“I – According to Article 38(1) of the LGT, the tax effects refer to the moment when the legal transactions produce the economic effects intended by the parties;
II – Article 36(4) of the LGT states that the classification of a legal transaction by the parties is not binding on the AT;
III – The circumstance of “qualifying” a second deed as a rectification of the first as to the value of the buildings exchanged does not bind the AT to recognise the “rectification” of the value of the properties that were exchanged for the purposes of taxation of the respective transfer.”
Judgment of the Supreme Administrative Court, of November 10, Case no. 0190/14.5BELRS: IRC. Expiry of assessment. Coercive assessment. New assessment.
Summary:
“I – The assessment act that is performed before the request for review of the taxable amount established by indirect methods is definitively decided is illegal – Article 91(2) of the General Tax Law;
II – Consequently, the annulment of the decision preliminarily rejecting the request for review of the taxable amount by indirect methods implies the annulment of the subsequent assessment;
III – If, following the annulment of the preliminary rejection of the request for revision, an order is issued fixing the taxable amount using indirect methods, the subsequent additional assessment must be made within the limitation period of the previously annulled assessment”.
Monographs and Periodic Publications
João de Travassos, O Presidente (da Mesa) da Assembleia Geral, Almedina, novembro de 2021.
Sofia Patrícia Travasso de Feitas Alcaide, A Responsabilidade Civil por Danos Causados por Veículos Autónomos, Almedina, novembro de 2021.
Carlos Cunha de Sousa, As Notificações em Procedimento Tributário, Almedina, novembro de 2021.
Artur Flamínio da Silva (Coordenação), Direito Administrativo e Tecnologia, 2ª edição, Almedina, novembro de 2021.
Guilherme de Oliveira, com a colaboração de Rui Moura Ramos, Manual de Direito da Família, Almedina, novembro de 2021.
Jorge Manuel Loureiro, Processo Judicial de Acidente de Trabalho – Momentos Prévios e a Fase Conciliatória – Notas Práticas Essenciais, Almedina, novembro de 2021.
Ricardo Nascimento, Cedência Ocasional de Trabalhadores – Configuração Geral e Problemas Actuais, Almedina, novembro de 2021.
Ana Sirage Coimbra, Regime Jurídico das Contraordenações Económicas – Anotado, Almedina, novembro de 2021.
Carolina Cunha, A Par Condicio Creditorum como Igualdade Formal dos Credores: Expectativa Vs. Realidade – Do Cumprimento Voluntário À Insolvência-Liquidação, Almedina, novembro de 2021.
Clotilde Celorico Palma (Coordenação), Estudos em Homenagem ao Professor Doutor António Carlos dos Santos, Almedina, novembro de 2021.
João Pacheco de Amorim, Introdução ao Direito dos Contratos Públicos, Almedina, novembro de 2021.
Cláudio Cardoso, O Regime da CPAS e o Regime dos Trabalhadores Independentes – Notas Práticas Sobre Sistemas Contributivos e Prestações Diferidas, Almedina, novembro de 2021.
Maria Elisabete Ramos, O Contrato de Seguro Entre a Liberdade Contratual e o Tipo, Almedina, novembro de 2021.
Ricardo Pedro, Fundos Europeus: Plano de Recuperação e Resiliência, Almedina, novembro de 2021.
Jorge Pinto Furtado, Comentário ao Regime Arrendamento Urbano, 3ª Edição Revista e Atualizada, Almedina, novembro de 2021.
11.4.2. Generic Guidelines & Cia
Circulated Letter no. 30242 of 03-11-2021, by dispatch of the Subdirector General of the Tax Management Area – VAT.
Subject: VAT – List of gold coins.
Circulated Letter no. 351/2021.XXII, of 10-11-2021, by dispatch of the Assistant Secretary of State and Tax Affairs.
Subject: Adjustment of the tax calendar for 2021/2022.
Circulated Letter no. 30243, of 11-11-2021, by dispatch of the Subdirector General of the Tax Management Area – VAT.
Subject: VAT – Deadline for submission of periodic declaration and payment of the respective tax. Single document code (ATCUD) and communication of series. Invoices in PDF.
Economy, Finance and Taxation
Earlier this month, the Government, through the Council of Ministers Communication of 4 November 2021, approved the creation of an extraordinary and exceptional support to the public road passenger transport sector, to be supported by the Environmental Fund, with a view to mitigating the effects of the cyclical increase in fuel prices.
“The support covers vehicles licensed by the Institute of Mobility and Transport (IMT) for public road transport of passengers – taxis and buses – being paid in advance and in a single payment until the end of 2021. The approved support corresponds to a value of 10 cents/litre, supporting each licensed taxi at 190 euros (assuming consumption of 380 litres per month) and at 1050 euros each heavy public passenger transport vehicle (assuming consumption of 2,100 litres of fuel per month),” the statement added.
To apply for support, vehicle operators must complete the form available on the Environmental Fund website by 30 November 2021, submitting the necessary documentation for the operationalisation of the support.
On 8 November, Decree-Law no. 92-A/2021 was published in the Diário da República (Official Gazette), establishing a financial subsidy, of a transitory and exceptional nature, to be granted to citizens for their fuel consumption, using the support platform for the “IVAucher” Programme – the so-called “AUTOvoucher” – which came into effect on November 1- the date on which traders were able to start signing up for the AUTOvoucher.
Later, on the 10th of November, Resolution no. 152/2021 of the Council of Ministers was published, authorizing the expenditure relative to that subsidy.
Thus, as of this date, taxpayers could start benefiting from the AUTOvoucher discount, in the value of 10 cents per litre of fuel, for a total of 50 litres per month, on fuel consumptions at petrol stations.
To do so, they just need to be enrolled in the IVAucher Programme. After the first consumption of the month in a participating petrol station, regardless of its value, the total discount will be reimbursed in the taxpayer’s bank account, within a maximum of two working days.
The Autumn Economic Forecasts of the European Commission (EC), published on 11 November, revised upwards the estimates of GDP growth for Portugal in 2021 and 2022, confirming the prospects of strong economic recovery in the country, in line with the estimates presented in the draft State Budget for 2022.
The EC points to a growth of the Portuguese economy of 4.5% and 5.3% in 2021 and 2022, respectively, compared to 3.9% and 5.1% in the previous forecasts.
The EC estimates confirm that Portugal will again grow significantly above the euro zone in 2022, with a growth of 5.3%, 1 p.p. above the euro zone (4.3%).
GAPI – Offices for Support to the Promotion of Industrial Property has today a new trademark registered at the EUIPO – European Union Intellectual Property Office, following a registration request formalized by INPI. The new trademark is protected under Classes 41 and 45 of the Nice Classification, training services for awareness in Industrial and Intellectual Property and information and valorisation services of Industrial and Intellectual Property, respectively.
The GAPI are a fundamental part in the promotion and dissemination of the importance of the use of industrial property (IP).
https://inpi.justica.gov.pt/Noticias-do-INPI/GAPI-tem-nova-Marca-registada-da-Uniao-Europeia
The 35th edition of “BVT Ocean Energy”, published under the Iberian project between the national institutions that grant industrial property rights in Portugal and Spain, respectively, the National Institute of Industrial Property (INPI) and the Spanish Patent and Trademark Office (OEPM), is now available.
BVT aims to provide quarterly monitoring of the latest news and publications of international Patent Applications (PCT) and European Patents (EP), in the technical field of ocean energy.
https://inpi.justica.gov.pt/Noticias-do-INPI/35%C2%AA-edicao-do-BVT-Oceanicas-ja-esta-disponivel
Centromarca – Portuguese Association of Branded Products Companies launches, for the fourth consecutive year, the ‘Journalism that Trademarks’ award. INPI is associated to this initiative, with the President of the Institute being among the jury members.
This award, worth 2.500 euros, aims to recognise journalistic work that addresses important themes in the area of trademarks and their economic and social environment. It is aimed at journalists with a professional card, authors of the best individual or collective work published in any media outlet operating in Portugal, regardless of the medium used – press, radio, television or digital -, which addresses relevant aspects for brands, the market or the consumer. The deadline for applications runs until 28 February 2022.
The European Patent Office (EPO), in collaboration with INPI, organises, on November 30, an online roundtable discussion dedicated to the topic – Medical diagnostics and related technologies.
This session is intended primarily for users of the patent system in Portugal, who will be able to clarify their questions about patent applications in the area of medical diagnostics and related technologies.
During the session, which will take place via zoom, users will have the opportunity to address what technologies are involved in this area, what is the patenting activity in this field, how emerging technologies interact with exclusively medical matters and what are the challenges that result from this for patent applicants and for the Patent Office itself.
E-LEGAL® NEWSLETTER – DECEMBER 2021
12.1. 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.
https://files.dre.pt/1s/2021/12/23300/0002700043.pdf
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.
https://files.dre.pt/1s/2021/12/23401/0000200002.pdf
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.
https://files.dre.pt/1s/2021/12/23500/0000200009.pdf
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.
https://files.dre.pt/1s/2021/12/23500/0001000012.pdf
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.
https://files.dre.pt/1s/2021/12/23600/0000200005.pdf
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.
https://files.dre.pt/1s/2021/12/23600/0000700009.pdf
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.
https://files.dre.pt/1s/2021/12/23600/0001000014.pdf
Decree-Law no. 109-A/2021, of December 7: Updates the remuneration of the Public Administration and increases the respective remuneration base.
https://files.dre.pt/1s/2021/12/23601/0000200004.pdf
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.
https://files.dre.pt/1s/2021/12/23601/0000500009.pdf
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.
https://files.dre.pt/1s/2021/12/23701/0001900042.pdf
Ordinance no. 294/2021, of December 13: Undertakes the annual update of the value of the Social Support Index (IAS).
https://files.dre.pt/1s/2021/12/23900/0001800018.pdf
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.
https://files.dre.pt/1s/2021/12/24100/0000300004.pdf
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.
https://files.dre.pt/1s/2021/12/24100/0000500005.pdf
Law no. 88/2021, of December 15: Transitional regime of mandatory use of mask in public spaces.
https://files.dre.pt/1s/2021/12/24100/0001000011.pdf
Ordinance no. 301/2021, of December 15: Updates pensions for the year 2022.
https://files.dre.pt/1s/2021/12/24100/0004600054.pdf
Decree-Law no. 119/2021, of December 16: Strengthens social protection in the event of unemployment.
https://files.dre.pt/1s/2021/12/24200/0003100034.pdf
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.
https://files.dre.pt/1s/2021/12/24300/0000700040.pdf
Ordinance no. 307/2021, of December 17: Determines the normal age of access to the old age pension in 2023.
https://files.dre.pt/1s/2021/12/24300/0022400225.pdf
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.
https://files.dre.pt/1s/2021/12/24400/0000300015.pdf
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.
https://files.dre.pt/1s/2021/12/24400/0005900059.pdf
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.
https://files.dre.pt/1s/2021/12/24401/0000200008.pdf
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.
https://files.dre.pt/1s/2021/12/24500/0000300049.pdf
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.
https://files.dre.pt/1s/2021/12/24502/0000200003.pdf
Resolution of the Assembly of the Republic no. 346/2021 of December 22: Recommends that the Government strengthen the public health structure in Portugal.
https://files.dre.pt/1s/2021/12/24600/0000500007.pdf
Decree-Law no. 119-A/2021, of December 22: Amends the measures within the scope of the pandemic disease COVID-19.
https://files.dre.pt/1s/2021/12/24601/0000200010.pdf
Decree-Law no. 119-B/2021, of December 23: Amends measures in the context of the pandemic of the disease COVID-19.
https://files.dre.pt/1s/2021/12/24701/0000200007.pdf
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.
https://files.dre.pt/1s/2021/12/24701/0000800011.pdf
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.
https://files.dre.pt/1s/2021/12/24902/0000200003.pdf
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.
https://files.dre.pt/1s/2021/12/25100/0007400075.pdf
Resolution of the Council of Ministers no. 184/2021 of December 29: Approves the National Strategy to Combat Poverty 2021-2030.
https://files.dre.pt/1s/2021/12/25100/0001900030.pdf
Resolution of the Council of Ministers no. 186/2021, of December 29: Approves the public investment program in research and development for 2021-2030.
https://files.dre.pt/1s/2021/12/25100/0003200041.pdf
Law no. 99/2021, of December 31: Special contributions and value of procedural costs for 2022.
https://files.dre.pt/1s/2021/12/25300/0003300035.pdf
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.
https://files.dre.pt/1s/2021/12/25301/0000200128.pdf
12.3.1. Court of Justice of the European Union
Judgment of the Constitutional Court no. 896/2021, December of 7, Case no. 436/2021:
Summary:
“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“.
http://www.tribunalconstitucional.pt/tc/acordaos/20210896.html
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.
Summary:
“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.
Summary:
“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.
Summary:
“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.
Summary:
“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.
Summary:
“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.
Summary:
“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.
Summary:
“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.
Summary:
“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.
Summary:
“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.
Summary:
“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.
Summary:
“1. 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.
2. 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.
3. In accordance with the provisions of Article 224 of the Civil Code, the recipient 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.
4.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.
5. 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.
Summary:
“1. 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.
2. The same principle applies in relation to the guarantor of the drawer of the bill of exchange“.
12.3.4. Administrative and Tax Courts
Judgment of the Supreme Administrative Court, of December 9, Case no. 0257/17.8BELRA: Stamp tax. Financial transactions.
Summary:
“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.
Summary:
“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.
Summary:
“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, of December 9, Case no. 0804/18.8BEPRT: IRC. Judicial challenge. Special taxation regime.
Summary:
“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.”.
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.
12.4.2. 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.
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:
a) The resolution renewing the declaration of TAP, S.A., Portugália, S.A. and Cateringpor, S.A. in a difficult economic situation;
b) 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.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=460
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.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=461
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.
https://inpi.justica.gov.pt/Noticias-do-INPI/INPI-marca-presenca-em-webinar-promovido-pelo-LabX
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.
https://inpi.justica.gov.pt/Noticias-do-INPI/XIII-Curso-de-Pos-Graduacao-em-Direito-Intelectual
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.
https://inpi.justica.gov.pt/Noticias-do-INPI/INPI-e-CNIPA-renovam-programa-piloto-de-PPH
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:
- Renewal
- Revalidation
- Fee Supplement
- Application for devolution of fees
- Joinder of other documents
- Translation of Folio in European Patent (PTE.)
- Reply to notification
- Request for rectification
- Withdrawal
- Waiver
- Other entries
- Exhibition
https://inpi.justica.gov.pt/Noticias-do-INPI/Novos-servicos-online-para-Patentes
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