I. EDITORIAL – APPROVAL OF THE LEGAL FRAMEWORK OF COVERED BONDS
In terms of legislation, the month of May was characterised by the publication of Decree-Law no. 31/2022, of May 6, which approves the Legal Framework of Covered Bonds and transposes Directive (EU) 2019/2162 and Directive (EU) 2021/2261.
On the legislative front, the following should also be highlighted:
- Ordinance no. 141/2022, of May 3, which establishes the extraordinary regime of deferral of payment of social security contributions and extends the complementary regime of deferral of tax obligations in the first half of 2022;
- Decree-Law no. 33/2022, of May 14, which establishes an exceptional and temporary mechanism for adjusting electricity production costs within the scope of the Iberian Electricity Market;
- Decree-Law no. 37/2022, of May 27, which alters the regime for charging user fees in the National Health Service.
In the scope of case law, it is worth mentioning the Judgement of the Évora Court of Appeal, of May 12, Case no. 61522/20.0YIPRT-A.E1, which clarified that “- Telecommunications companies are subject to confidentiality duties (art. 48 of Law no. 5/2004, of 10-02 “Law of Electronic Communications” and art. 4(1) of Law no. 41/2004, of 18-08 “Law of Protection of Personal Data and Privacy in Telecommunications”);
– By expressing their will not to authorise the disclosure of their personal data, set out in the telecommunications service contract, telecommunication companies’ customers exercise a right with constitutional protection (art. 35 (4) CRP) and within the framework of the right to the protection of personal data (art. 5 (1)(f)of RGPD).
– In principle, telecommunications companies (those responsible for processing such data) cannot carry out processing which has not been consented to by the data subject;
– But consent is not the only cause of legitimacy and lawfulness in the processing of personal data;
– Consent shall not be required if the processing is necessary for the purposes of the legitimate interests pursued by a third party (Article 6(f) of the RGPD) and if, using a principle of proportionality, as suggested in the same provision, the interests or fundamental rights and freedoms of the data subject are not overridden;
– In this situation is the right of a third party to an effective jurisdictional protection, for which it needs information about the address of the telecommunication company’s customer in order to make possible the summons of the latter, as defendant, once all the possibilities of obtaining the same information by a less intrusive way have been exhausted;
– The refusal of information by the telecommunications company is not legitimate in this case.”.
In the same context, we would also highlight the Judgement of the Évora Court of Appeal, of May 10, Case no. 17/21.1JAFAR-A.E1, which clarified that “I. The “diligence records” and “diligence reports” are atypical means of obtaining evidence. II. Without prejudice to their relevance in the context of the criminal investigation, they may only be used in court as elements to be consulted by the witness who is their author, when necessary to refresh his memory, but they may not be valued as if they were testimonial or documentary evidence – because they are not.”.
Finally, in Miscellaneous, we highlight the approval by the Government, in the Council of Ministers, of an exceptional price revision regime in public contracts, due to the exponential increase in the costs of materials, labour or equipment, to be in force until 31 December 2022.
II. LEGISLATION
Ordinance no. 141/2022, of May 3: Establishes the extraordinary regime of deferred payment of social security contributions and extends the complementary regime of deferral of tax obligations in the first half of 2022.
https://files.dre.pt/1s/2022/05/08500/0000200004.pdf
Ordinance no. 141-A/2022, of May 5: Identifies coastal and transitional bathing waters and inland bathing waters for the year 2022, fixing the respective bathing seasons, and classifies them as bathing beaches where lifeguards are provided.
https://files.dre.pt/1s/2022/05/08701/0000200024.pdf
Resolution of the Council of Ministers no. 41-C/2022, of May 5: Extends the declaration of the situation of alert, in the context of the pandemic of the disease COVID -19.
https://files.dre.pt/1s/2022/05/08702/0000200002.pdf
Law no. 11/2022, of May 6: Amendment to the deadline for Law no. 73/2021, of November 12, which approves the restructuring of the Portuguese border control system, to come into effect.
https://files.dre.pt/1s/2022/05/08800/0000200003.pdf
Decree-Law no. 31/2022, of May 6: Approves the Legal Regime of Covered Bonds and transposes Directive (EU) 2019/2162 and Directive (EU) 2021/2261.
https://files.dre.pt/1s/2022/05/08800/0000500032.pdf
Ordinance no. 141-B/2022, of May 6: Revision and setting of the rates of tax on oil and energy products.
https://files.dre.pt/gratuitos/1s/2022/05/08801.pdf
Decree Law no. 32/2022, of May 9: Approves the organization and functioning regime of the XXIII Constitutional Government.
https://files.dre.pt/1s/2022/05/08900/0000400050.pdf
Resolution of the Council of Ministers no. 42/2022, of May 9: Approves the Code of Conduct of the XXIII Constitutional Government.
https://files.dre.pt/1s/2022/05/08900/0005100054.pdf
Ordinance no. 142/2022, of May 9: Extends the deadline set forth in article 1 of Ordinance no. 139/2022, of April 22.
https://files.dre.pt/1s/2022/05/08900/0005500055.pdf
Ordinance no. 144/2022, of May 13: Determines the professions excluded from the scope of application of Decree-Law no. 28-B/2022, of March 25.
https://files.dre.pt/1s/2022/05/09300/0000200008.pdf
Ordinance no. 145-A/2022, of May 13: Revision and setting of the rates of tax on oil and energy products.
https://files.dre.pt/1s/2022/05/09301/0000200002.pdf
Decree-Law no. 33/2022, of May 14: Establishes an exceptional and temporary mechanism for adjusting electricity production costs within the framework of the Iberian Electricity Market.
https://files.dre.pt/1s/2022/05/093a00/0000200008.pdf
Decree-Law no. 34/2022, of May 20: Approves exceptional measures to guarantee access to higher education, in the academic year 2022-2023, by students from foreign education systems.
https://files.dre.pt/1s/2022/05/09800/0000400005.pdf
Decree-Law no. 36/2022, of May 20: Establishes an exceptional and temporary regime within the scope of price increases impacting on public procurement.
https://files.dre.pt/1s/2022/05/09800/0001100013.pdf
Ordinance no. 151-A/2022, of May 20: Revision and setting of the rates of tax on oil and energy products.
https://files.dre.pt/1s/2022/05/09801/0000200003.pdf
Ordinance no. 151-B/2022, of May 23: Exceptional and temporary reimbursement scheme for rapid antigen tests (TRAg) for professional use.
https://files.dre.pt/1s/2022/05/09901/0000200003.pdf
Notice no. 50/2022, of May 25: Entry into force of the Cooperation Agreement between the Portuguese Republic and the Kingdom of Morocco on Internal Security, signed in Lisbon on 20 April 2015.
https://files.dre.pt/1s/2022/05/10100/0000200002.pdf
Notice no. 51/2022, of May 25: Entry into force of the Film and Audiovisual Co-production Agreement between the Portuguese Republic and the Kingdom of Morocco, signed in Rabat on 5 December 2017.
https://files.dre.pt/1s/2022/05/10100/0000300003.pdf
Notice no. 52/2022, of May 26: Entry into force of the Cooperation Agreement between the Portuguese Republic and the People’s Democratic Republic of Algeria in the Field of Health, signed in Lisbon on 3 October 2018.
https://files.dre.pt/1s/2022/05/10200/0000200002.pdf
Decree-Law no. 37/2022, of May 27: Changes the regime for charging user fees in the National Health Service.
https://files.dre.pt/1s/2022/05/10300/0000300004.pdf
Ordinance no. 152/2022, of May 27: Undertakes the twelfth amendment of the Specific Regulations of the Social Inclusion and Employment Domain.
https://files.dre.pt/1s/2022/05/10300/0000500006.pdf
Ordinance no. 152-A/2022, of May 27: Revision and setting of the rates of tax on oil and energy products.
https://files.dre.pt/1s/2022/05/10301/0000200003.pdf
Resolution of the Council of Ministers no. 47/2022, of May 30: Extends the declaration of the situation of alert in the context of the pandemic of the disease COVID -19.
https://files.dre.pt/1s/2022/05/10400/0002500025.pdf
III. CASE-LAW
III.1. Court of Justice of the European Union
Judgment of the Court of Justice, of May 12, Case C-426/20: Reference for a preliminary ruling. Social policy. Directive 2008/104/EC. Temporary agency work. Article 5(1). Principle of equal treatment. Article 3(1)(f). Concept of “basic working and employment conditions of temporary workers”. Compensation payable for annual paid leave not taken and the corresponding holiday pay in the event of termination of employment.
Summary:
“For the reasons stated, the Court of Justice (Sixth Chamber) declares:
The first subparagraph of Article 5(1) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, read in conjunction with Article 3(1)(f) thereof must be interpreted as precluding national legislation under which the compensation to which temporary workers are entitled, on termination of their employment relationship with a user undertaking, in respect of days of paid annual leave not taken and the corresponding holiday pay is lower than the compensation to which those workers would have been entitled, in the same situation and on a similar basis, if they had been recruited directly by that user undertaking to perform the same duties there during the same period.”.
https://eur-lex.europa.eu/legal-content/PT/TXT/?uri=CELEX:62020CJ0426
Judgment of the Court of Justice, of May 17, Joined Cases C-693/19 and C-831/19: Reference for a preliminary ruling. Directive 93/13/EEC. Unfair terms in consumer contracts. Principle of equivalence. Principle of effectiveness. Order for payment and attachment proceedings against third parties. Authority of res judicata implicitly covering the validity of the terms of the enforcement order. Power of the enforcement judge to review of his own motion the possible unfairness of a term.
Summary:
“For the reasons stated, the Court of Justice (Grand Chamber) declares:
Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding national legislation which provides that, where an order for payment issued by a court at the request of a creditor has not been contested by the debtor the enforcement court cannot, on the ground that the authority of res judicata attaching to such an order implicitly covers the validity of those terms, thereby excluding any review of their validity, subsequently review the possible unfairness of the contractual terms on which the order was based. The fact that, at the time when the order became final, the debtor did not know that he could be regarded as a ‘consumer’ within the meaning of that directive is irrelevant in that regard.
https://eur-lex.europa.eu/legal-content/PT/TXT/?uri=CELEX:62019CJ0693
III.2. General Court of the European Union
III.3. Constitutional Court
Judgement of the Constitutional Court, no. 268/2022, of April 19, Case no. 828/2019.
Summary:
“For the reasons stated, the Constitutional Court decides:
a) To declare the unconstitutionality, with mandatory general force, of the rule set out in article 4 of Law no. 32/2008, of July 17, in conjunction with article 6 of the same law, due to the violation of the provisions of paragraphs 1 and 4 of article 35 and of paragraph 1 of article 26, in conjunction with paragraph 2 of article 18, all of the Constitution;
b) To declare the unconstitutionality, with mandatory general force, of the provision in Article 9 of Law 32/2008, of July 17, concerning the transmission of stored data to the competent authorities for the investigation, detection and prosecution of serious crimes, insofar as it does not provide for notification to the person concerned that the data stored were accessed by the criminal investigation authorities, as long as such notification is not likely to jeopardise investigations or the life or physical integrity of third parties, on the grounds of violation of the provisions of Articles 35(1) and 20(1), in conjunction with Article 18(2), all of the Constitution.”.
http://www.tribunalconstitucional.pt/tc/acordaos/20220268.html
Judgement of the Constitutional Court, no. 275/2022, of April 26, Case no.: 320/2021.
Summary:
“3. In view of the above, it is decided:
a) To hold unconstitutional the rule contained in articles 24 (1)(b), and 29 (2), of the Lei Geral Tributária (General Tax Law), interpreted in the sense that the subsidiary tax liability is transferable in case of universal succession by death, when the reversion is determined after the death of the director, officer or manager of the original debtor, against the respective successors, thus burdening them with the proof that the lack of payment is not attributable to the deceased, due to the violation of article 20(4) of the Constitution of the Portuguese Republic; and, consequently
(b) dismiss the appeal.”.
http://www.tribunalconstitucional.pt/tc/acordaos/20220275.html
Judgement of the Constitutional Court, no. 277/2022, of April 26, Case no.: 666/2021.
Summary:
“3. In view of the above, it is decided:
a) To hold unconstitutional the rule contained in Article 277(e) of the Civil Procedure Code, applicable ex vi of Article 4 of the Criminal Procedure Code, when interpreted in such a way as to consider superveniently useless the appeal against a decision that applied non-custodial coercive measures, due to its temporal extinction or revocation while the appeal is pending, due to the violation of Article 32 (1) of the Constitution of the Portuguese Republic; and, consequently
b) uphold the present appeal, ordering that the case be sent back to the Lisbon Court of Appeal to reform the contested decision in accordance with the present judgment of unconstitutionality.”.
http://www.tribunalconstitucional.pt/tc/acordaos/20220277.html
Judgement of the Constitutional Court, no. 276/2022, of April 26, Case no.: 406/2021.
Summary:
“3. In view of the above, it is decided:
a) Not to consider unconstitutional the rule contained in article 48(1)(c)of the General Regime of the Civil Protection Procedure, in conjunction with article 738(4) of the Code of Civil Procedure, interpreted in the sense that the limit of unseizability foreseen in this precept does not establish any differentiation based on the nature or amount of the income of the person judicially obliged to provide maintenance, nor does it foresee as a minimum limit of applicability the preservation of an amount equivalent to the value of the Social Support Index; and, consequently
b) uphold the present appeal, determining the remittance of the case records to the Juízo de Família e Menores de Guimarães, for reform of the appealed decision in conformity with the present judgment of unconstitutionality.”.
http://www.tribunalconstitucional.pt/tc/acordaos/20220276.html
Judgement of the Constitutional Court, no. 279/2022, of April 26, Case no.: 1093/2021.
Summary:
“a) Do not consider unconstitutional the rule resulting from the interpretation of the provisions of Articles 61(1)(d) and 125 of the Code of Criminal Procedure, to the effect that the documents obtained by a tax inspection, under the duty of cooperation imposed by Articles 9(1) of the Supplementary Regime of the Tax and Customs Inspection Procedure, and 59(4) of the General Tax Law, which occurred prior to the opening of the inquiry stage,, may subsequently be used as evidence in criminal proceedings for the practice of the crime of tax fraud brought against the taxpayer; and, consequently
(b) dismiss the present appeal on constitutionality.”.
http://www.tribunalconstitucional.pt/tc/acordaos/20220279.html
III.4. Courts of Justice
Judgement of the Porto Court of Appeal, of May 4, Case no.: 2210/18.5T8VNG.P1: Traffic Accident. Concurrence of fault and risk. Exclusive fault of the victim.
Summary:
“I – A current interpretation of Article 505 of the Civil Code does not exclude the possibility of competition with strict liability, associated with the risk inherent in the circulation of the other vehicle also intervening in the traffic accident.
II – This concurrence, however, does not occur when the accident is due to the exclusive fault of the injured party himself, this constituting a circumstance excluding liability arising from the circulation of the other party involved in the accident“.
Judgement of the Porto Court of Appeal, of May 4, Case no.: 61/20.6T8PRT.P1: Divorce without consent. Attribution of the family home. Lease.
Summary:
“I – There being a lease on the family home, its destination, in case of divorce or judicial separation of people and goods, in the absence of an agreement, is decided taking into account the needs of the spouses, the interests of the children and other relevant factors.
II – When assessing the need for the house, the court shall take into account, in particular, the spouses’ patrimonial situation – the income and earnings of both spouses as well as the respective burdens – and, combining these elements with the interest of the children, shall attribute the right to rent the family home to the spouse who needs it most.
III – Only if the needs of both spouses are equal or approximately equal should supplementary criteria be used, in which case the family home may be attributed to the spouse who has the closest connection to it, namely because he/she has lived there since adolescence“.
Judgement of the Porto Court of Appeal, of May 4, Case no.: 3156/15.4T8GDM.P1: Pre-emption right of tenants. Benefaction. Deprivation of use.
Summary:
“I – The tenant does not have a pre-emption right, pursuant to Article 1091(1)(a) of the Civil Code, when it has received as leasehold improvements (a house) built by the lessor on land that the latter has leased to a third party with the right to make such improvements that would revert to the owner of the land.
II – We are not dealing with a lease that falls over an object whose domain may be autonomously transacted, the requirement of legal autonomy of the thing being reasonable so that it may constitute the object of a property transfer transaction, it is also reasonable that the pre-emption right from the lease be projected by reference to the same legal unit, since it tends to the acquisition of the right in rem.
III – The unlawful deprivation of the use of a house configures in itself a damage resulting from the impossibility of using such property, being an autonomous damage.
IV – This damage may be compensated even if the concrete utility or advantage that the owner would have gained from the property during the period of deprivation has not been proven and, in such a case, given the difficulties of proof that exist in the quantification of equivalent compensation, the compensation is fixed equitably (cfr. art. 566 (3) of CC).“.
Judgement of the Porto Court of Appeal, of May 4, Case no.: 107/22.3YRPRT: Vehicle repair. Excessive onerosity. Suitability to satisfy the needs of the injured party. Damage of the deprivation of use.
Summary:
“I – In order to affirm the excessive onerosity it is not enough to demonstrate that the value of the repair of the vehicle is higher than its market value, since one of the poles of the determination of the excessive onerosity is the price of the repair, the other is not the market value of the vehicle but its asset value, the value that the vehicle has within the assets of the injured party.
II – The vehicle, due to its antiquity, may have a reduced or diminished commercial value, it may still be able to satisfy the needs of its owner who, who cannot be satisfied with an amount corresponding to that commercial value, because he is deprived of the comforts that that vehicle still provided him.
III – Therefore, such value, which is part of the injured party’s assets, cannot be disregarded when considering the adequacy or not of natural reconstitution as a form of reparation for the injured party.
IV – For the purpose of awarding compensation for the deprivation of use, proof of effective and concrete damages shall not be required, and may be assessed and resolved in abstracto, being gauged by the mere objective impossibility of using the thing”.
Judgement of the Porto Court of Appeal, of May 4, Case no.: 1413/21.0T8VLG-D.P1: Lease Agreement. Non-payment of rent. Enforceable title. Compensation for the delay.
Summary:
“I – The enforcement instrument referred to in Article 14-A of the NRAU is of a complex nature, consisting of the lease agreement and the communication to the debtor (tenant or guarantor).
II – The enforcement instrument of the said Article 14-A of the NRAU grants the pursuing creditor support for the coactive realization of the amount inherent to the “double” rents, rectius, “indemnity” for the delay in returning the leased premises, referred to in Article 1045 (1) and (2) of the Civil Code, together with the singular “rents” equally in debt.
III – Notwithstanding, it must be stated in the communication made that values concerning falling due rents and indemnity will be petitioned, in order for such values to be covered by the writ of execution, which contains all the data for the arithmetic calculation of the amounts due.
IV – In turn, the immediate cognition of the merit in the preliminary order is only legitimate if the proceedings make such cognition possible, which does not occur if there are disputed facts that may be relevant according to the plausible solutions of the question of law”.
Judgment of the Guimarães Court of Appeal, of May 9, Case no.: 144/20.T9MNC.G1: Nullity of sentence. Valuation of prohibited evidence. Professional secrecy of a lawyer.
Summary:
“I – The evaluation of the testimony of a witness on facts of which he had knowledge in the exercise of his professional functions as a lawyer, without having validly obtained the release of the respective professional secrecy, constitutes prohibited evidence.
II – This is not precluded by the fact that the witness is both a niece and a friend of her constituent.
III – A sentence that considers evidence to be prohibited without addressing the issue of such prohibition is vitiated by nullity, due to omission of pronouncement.”.
Judgment of the Évora Court of Appeal, of May 10, Case no.: 17/21.1JAFAR-A.E1: Due diligence records. External diligence reports. Atypical means of evidence. Prohibition of valuation.
Summary:
“I. The “diligence records” and “diligence reports” constitute atypical means of obtaining evidence.
- Without prejudice to their relevance in the context of the criminal investigation, they may only be used at trial as elements to be consulted by the witness who is the author thereof, when necessary to refresh his memory, but they may not be valued as if they were testimonial or documentary evidence – because they are not.“.
Judgment of the Évora Court of Appeal, of May 10, Case no.: 1407/18.2T9LAG.E1: Permanent Crime (new). Limitation of criminal proceedings. COVID.
Summary:
“1 – One thing is the permanent crime, another is the instantaneous crime, but with permanent effects, more properly, lasting effect.
2 – Therefore, the start of the limitation period for the criminal proceedings occurs when the agent published the allegedly defamatory comment on the social network pages Facebook and Google Business, internet sites for the dissemination of the assistant’s services, and not at the moment when he removed that comment from those social networks.
3 – The suspension of the limitation period provided for in Laws 1-A/2020 of 19/3 and 4-B/2021 of 1/12 shall only apply to facts occurring after their entry into force.“.
Judgement of the Lisbon Court of Appeal, of May 11, Case no.: 3121/13.6TTLSB.L1-4: Breach of the duty of effective occupation. Vocational training. Termination of the employment contract. Just cause.
Summary:
“1 – The non-assignment to the worker of any task for a period of about three months, without justification, constitutes a violation of the duty of effective occupation.
2 – This violation plus the fact that the worker was not provided with vocational training during the period in which the employment relationship lasted, constitute just cause for the termination of the employment contract by the worker.“.
Judgement of the Évora Court of Appeal, of May 12, Case no.: 61522/20.0YIPRT-A.E1: Secrecy of communications. Personal data. Consent. Access to the right. Collision of rights. Proportionality principle.
Summary:
“- Telecommunications companies are subject to confidentiality duties (art. 48 Law no. 5/2004, of 10-02 “Law of Electronic Communications” and art. 4(1) of Law no. 41/2004, of 18-08 “Law of Protection of Personal Data and Privacy in Telecommunications”);
– By expressing their will not to authorise the disclosure of their personal data, set out in the telecommunications service contract, telecommunication companies’ customers exercise a right with constitutional protection (art. 35 (4) CRP) and within the framework of the right to the protection of personal data (art. 5 (1)(f)of RGPD).
– In principle, telecommunications companies (those responsible for processing such data) cannot carry out processing which has not been consented to by the data subject;
– But consent is not the only cause of legitimacy and lawfulness in the processing of personal data;
– Consent shall not be required if the processing is necessary for the purposes of the legitimate interests pursued by a third party (Article 6(f) of the RGPD) and if, using a principle of proportionality, as suggested in the same provision, the interests or fundamental rights and freedoms of the data subject are not overridden;
– In this situation is the right of a third party to an effective jurisdictional protection, for which it needs information about the address of the telecommunication company’s customer in order to make possible the summons of the latter, as defendant, once all the possibilities of obtaining the same information by a less intrusive way have been exhausted;
– The refusal of information by the telecommunications company is not legitimate in this case”.
Judgement of the Porto Court of Appeal, of May 17, Case no.: 4132/19.3T8VNG.P1: Fatal accident. Child. Toys. Consumer’s law. Producer/trader liability. Unsafe or defective product. Normal use. Presumption of conformity. Union law.
Summary:
“I – In the context of liability arising from the introduction of defective products onto the market, a product that does not offer the safety that can legitimately be counted on is considered to be defective.
II – This expectation should be assessed in light of the circumstances provided for by law and others that are pertinent to the case.
III – These include the characteristics of the product, its presentation, the normal or reasonably foreseeable conditions of use, the time it is put into circulation, the instructions and warnings accompanying it, and the type of consumers who are expected to use it.
IV – Normal or reasonably foreseeable use does not necessarily coincide with correct use, taking into account the specific use for which the product is intended. But neither does it coincide with any use whatsoever, since the producer does not guarantee absolute safety, regardless of the conditions and manner of use of the product.
V – Ignoring, in a fatal accident with a swing, the specific manner in which the latter was being used when that accident occurred, it cannot be concluded that it was a normal or reasonably foreseeable use and that that swing was therefore an unsafe or defective product from that point of view.“.
Judgment of the Coimbra Court of Appeal, of May 18, Case no.: 1374/21.5T8CTB.C1: Decision of the administrative authority. Judicial impugnation. Decision by judicial order. Declaration of non-opposition. Irredeemable nullity.
Summary:
“I – The court decides against legem, with violation of the rights of hearing and defense of the accused and against the principle of trust, both of which emanate from the CRP, when, in administrative infraction proceedings, there being a challenge to the decision of the administrative authority, it waives the holding of a hearing and delivers a decision on the merits by way of an order, without fully investigating the matter invoked by the appellant, attributing to the silence of the appellant the binding effect of a declaration of non-opposition to the decision in the aforementioned manner.
II – The decision thus rendered constitutes an irreparable nullity, as provided for in Article 119(c) of the CPP.“.
III.5. Administrative and Tax Court
Judgment of the Southern Central Administrative Court, of May 12, Case no.: 521/11.0BELRA: False invoicing. Burden of proof. Evidence/materiality. Means of payment.
Summary:
“I – In the field of false invoicing, it is up to the AT to demonstrate that the evidence it has collected in the course of the inspection is serious and sufficient to conclude that there is no economic relationship or simulation of one that supports the invoices.
II – It is not required that the AT provides direct evidence of the simulation, whereby by meeting this burden and rebutting the presumption of truthfulness of the taxpayer’s declaration enshrined in Article 74(1) of the LGT, the onus is on the taxpayer to prove the reality underlying the invoice by refuting the evidence gathered by the tax authority.
III – Since it is not disputed that registered cheques were issued by the Defendant to the order of the said suppliers, the corresponding payment was made, the respective payment notes were issued, and the outflows of these are recorded in the corresponding bank statements, then, in order to legitimize the ineligibility of the costs deduction, the AT would have had to go further, the AT would have had to go further, it not being sufficient to rely on elements (external indications), having necessarily to obtain some indications from the taxpayer (internal indications) which, even if combined with those others, lead to the high probability that the invoices do not correspond to effective transactions.“.
Judgment of the Southern Central Administrative Court, of May 12, Case no.: 1917/10.0BESNT: IRC. Disposal of medicines. Proof.
Summary:
“I – The AT having placed in question, in a sustained manner, the indispensability of the cost with the scrapping of medicines, it is for the taxpayer to bear the burden of proving that the costs are indispensable.
II – The evidence to be produced by the taxpayer must contain such level of detail as to allow an effective connection between the bookkeeping and the reality.”.
Judgment of the North Central Administrative Court, of May 13, Case no.: 01637/21.0BEPRT: Public tender. Qualified electronic signature. Power of attorney. Exclusion of proposal. Decree-Law no. 290-D/99, of 02.08; (4) of article 57 and (2)(d) and (e) of article 146 of the Public Contracts Code.
Summary:
“1. The argument that a power of attorney issued with the mention of granting powers to the proxy to submit proposals and sign documents, on behalf of the principal, confers powers to bind the represented company to the proposals submitted by the proxy applies to physical documents.
- It does not apply to electronic documents, which, under the terms of Decree-Law no. 290-D/99, of 02.08 (amended by Decree-Laws nos. 62/2003, of 03.04, 165/2004, of 07.06 116-A/2006, of 16.0, and 88/2009, of 09.04, and Decree-Law no. 12/2021, of 09.02), may contain (I) the “electronic signature”; (II)the “advanced electronic signature” and (III) the “qualified electronic signature”, as stated in the contested decision.
- A power of attorney that indistinctly refers to the necessary powers for the representative to sign documents does not count as a power of attorney binding the principal to the proposals presented by the proxy, given that the qualified electronic signature, required in the terms of the bidding, is more demanding than a simple electronic signature.
- Moreover, since the tender documents are signed with a qualified electronic signature by one of the company representatives and not by another
and given that the power of attorney is signed in the same terms by both representatives, the meaning and scope of this different form of binding the company by two of its representatives is not understood, which leaves one with justified doubts as to the true scope of the represented party’s will and, consequently, as to whether the expression used allows one to conclude that the presentation of contractual proposals is covered and, consequently, whether it intended to expressly authorise the represented party to submit tenders on its behalf – and thus sign the respective constitutive documents – in all contracting procedures carried out on electronic platforms, engaging its represented party in the pre-contractual phase, doubts which are not compatible with the rigor required in the verification of the representative’s powers to submit the proposal.
- This justifies the exclusion of this proposal, contained in the contested act, in accordance with the combined provisions of the articles to non-compliance with the provisions of Article 57(4) and Article 146(2)(d) and (e) of the Public Contracts Code.”.
IV. BRIEFS
IV.1. DOCTRINE
IV.1.1. Monographs and Periodic Publications
Rui Marques e Sónia Martins Reis, Código Fiscal do Investimento – Anotado e Comentado, Almedina, maio 2022.
João Vieira dos Santos, Regulação de Formas de Financiamento Empresarial Fintech – Em Especial o Crowdfunding e as Initial Coin Offerings, Nº 8, Almedina, maio 2022.
Guilherme Dray, Direito do Trabalho e Cidadania – O Sentido do Direito do Trabalho, Almedina maio 2022.
Nazaré da Costa Cabral, Modelos de Políticas Públicas Sociais – Do Rendimento Incondicional aos ‘Vouchers’, passando por Soluções Intermédias, Almedina, maio 2022.
Paula Costa e Silva e Nuno Trigo dos Reis, Private Enforcement e Tutela Coletiva, Almedina, maio 2022.
David Falcão, Lições de Direito do Consumo, 3.ª Edição, Almedina, maio 2022.
Jorge Bacelar Gouveia, Defesa Nacional e Forças Armadas – Uma Perspetiva do Direito Militar da Segurança em Estado Constitucional Democrático, Almedina, maio 2022.
VI Congresso Direito das Sociedades em Revista, VI Edição, Almedina, maio 2022.
Manuel Monteiro Guedes Valente e Fauzi Hassan Choukr, O Processo Penal no Âmbito da Responsabilidade Penal da Pessoa Jurídica, Almedina, maio 2022.
Ricardo Costa, Direito das Empresas – Reflexões e Decisões, Almedina, maio 2022.
Inês Horta Pinto, Repartição de Funções Entre Administração e Juiz e Tutela Jurisdicional Efectiva na Execução da Pena de Prisão, Almedina, maio 2022.
Beatriz Ribeiro, O Direito ao Reporte de Prejuízos Fiscais – Enquadramento Legal do Seu Regime em Sede de IRC e IRS, Almedina, maio 2022.
Maria Emília Teixeira, Temas de Direito Bancário e Dos Valores Mobiliários – Livro 1, Almedina, maio 2022.
André de Almeida Martins, Fixação das Regras Processuais e Exercício da Função Arbitral na Arbitragem Voluntária, Almedina 2022.
Dário Moura Vicente e Nuno Sousa e Silva, Propriedade Intelectual, Contratação e Sociedade da Informação – Estudos Jurídicos em Homenagem a Manuel Oehen Mendes, Coleção de Estudos de Direito Intelectual, Tomo VI, Almedina, maio 2022.
Clara Sottomayor, Código Civil Anotado – Livro IV – Direito da Família, 2.ª Edição, Almedina, maio 2022.
Maria do Rosário Epifânio, Manual de Direito da Insolvência, 8.ª Edição, Almedina, maio 2022.
Maria João Antunes, Direito Processual Penal, 4.ª Edição, Almedina, maio 2022.
IV.1.2. Generic Guidelines & Cia
Circulated Letter no.: 30247, of 2022-05-13, by order of the Subdirector General of the Tax Management Area-IVA.
Subject: VAT – nutrition services provided in gyms and other sports facilities.
Circulated Letter no.: 55003/2022, of 2022-05-05, by order of the Director of the Large Taxpayers Unit.
Subject: Model 57 – additional on the banking sector (ASSB) – clarification – year of additional.
IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation
The Ministry of Agriculture and Food, informed, on May 6, that the ISP rate on Agricultural Diesel is 7.3 cents per litre, as well as the carbon tax of 5.9 cents per litre, expressing a significant tax reduction on the price of this fuel.
It should be noted that, in fiscal terms, the Government reduced the ISP of Agricultural Diesel by 3.4 cents per litre as from 21 March 2022.
https://www.portugal.gov.pt/pt/gc23/comunicacao/comunicado?i=esclarecimento-sobre-gasoleo-agricola
The Ministry of Internal Administration approved, on May 13, the Financial Directive 2022, in articulation with the League of Portuguese Firefighters.
The Financial Directive 2022 represents a fundamental instrument for public budget management, highlighting:
– The 7% increase in the amounts associated to the daily contribution made to the Firefighters integrated in the devices;
– Specific support in excess of half a million euros, to be paid in a single instalment, in June, to Humanitarian Associations with Fire Brigades that create or host DECIR teams;
– Specific financial support for Humanitarian Associations with fire brigades that contribute vehicles to the Detached Brigade Reinforcements;
The Government approved, in the Council of Ministers, an exceptional price revision regime in public contracts, due to the exponential increase in the costs of materials, labour or equipment, to be in force until 31 December 2022.
Under the revision, the parties may only revise the price, on an extraordinary basis, if a particular material, type of labour or equipment represents at least 3% of the contract price and has a year-on-year cost variation rate of 20% or more.
An extension of contract deadlines is also allowed, without recourse to penalties and additional payments, whenever there is an interruption in the supply of materials necessary for the execution of the work.
Until May 25, more than 4.1 million personal income tax returns have been filed by taxpayers, and the Customs Tax Authority has refunded around €2,057 million. Around 551.9 thousand collection notes have also been issued, totaling around €635 million.
Taxpayers are allowed to submit their tax return until 30 June 2022.
IV.2.2. Industrial Property
The University of Lisbon Law School, together with the Portuguese Intellectual Law Association, will hold the Lisbon Intellectual Property Summer Course online, which will be entitled “The State of the Matters in 2022”.
The course will run from 4 to 8 July 2022 and is divided into five themes:
– Intellectual Property Law in an international context;
– Copyright;
– Information Society Law;
– Patents and Trade Secrets;
– Distinctive Signs.
Recently, the European Court of Auditors (ECA) published Special Report 06/22, “EU Intellectual Property Rights – Protection is not completely watertight“.
In this Report, the ECA clarifies that the EU legal framework on intellectual property protection is not as effective as it could be, pointing in particular to the shortcomings present in the EU Designs Directive and the Union’s fees mechanism.
The ECA highlights the lack of harmonization between national systems and the EU system and additionally draws attention to the absence of an EU-wide protection regime for all products, namely, we highlight this absence in relation to non-agricultural products, such as craft and industrial designs.
The INPI made available, on May 11, a Practical Guide to the Substantive Examination of Trademarks and Logotypes, which aims to make the method of analysis and decision on the applications for registration more elucidative, as well as aiming for greater uniformity in the INPI’s decisions.
This document, entitled “Examination Guidelines – Absolute and Relative Grounds for Refusal of Registration of Trademarks“, also contains clarification of concepts and practical examples of the application of legal rules.
https://inpi.justica.gov.pt/Noticias-do-INPI/Guia-Pratico-de-Exame-Substancial-de-Marcas-e-Logotipos
The National Institute of Industrial Property, together with the Spanish Patent and Trademark Office, carried out the Iberian Study – “Patents and rural fire control“, which was based on:
– The technical information provided by patents on sustainable forest management;
– The fight against desertification;
– The prevention of soil degradation and biodiversity loss, focusing on the evolution of patents related to rural fire control.
https://inpi.justica.gov.pt/Noticias-do-INPI/Estudo-Iberico-Patentes-e-controlo-de-incendios-rurais
Finally, the provisional statistical data from January to April 2022, regarding Industrial Property Rights applications and concessions, was published on May 16. In particular, the concessions of inventions registered a decrease of 34.9% (71), compared to the same period in 2021 (109).
On the other hand, national applications for inventions increased by 5.6% (285) compared to applications in 2021 (270).
All statistical reports, annual, half-yearly and monthly, on applications and grants of Industrial Property Rights are available at the IP Observatory.
https://inpi.justica.gov.pt/Noticias-do-INPI/Direitos-de-Propriedade-Industrial-janeiro-a-abril-2022
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