I. EDITORIAL – APPROVAL OF THE STATE BUDGET FOR 2022
In terms of legislation, the month of June was marked by the publication of Law no. 12/2022, of June 27, which approved the State budget for 2022.
On the legislative front, the following should also be highlighted:
- Ordinance no. 164-A/2022, of June 24, which reviewed and set the rates of tax on petroleum and energy products.
- Resolution of the Assembly of the Republic no. 29/2022, of June 28, which approved the budget of the Assembly of the Republic for 2022.
- Decree-Law no. 42/2022, of June 29, which establishes measures to support families and businesses in the context of the armed conflict in Ukraine.
In the scope of case law, it is worth mentioning the Judgement of the Constitutional Court, no. 1004/2020, of June 28, Case no. 468/22, which clarified that “Therefore, the Constitutional Court decides to declare, with mandatory general force, the unconstitutionality of the rule contained in article 168-A (5) of Law no. 2/2020, of March 31, which approved the State Budget for 2020, as amended by Law no. 27-A/2020, of July 24, which approved the Supplementary State Budget, insofar as it determines, with respect to the specific forms of contracts for the exploitation of real estate for commerce and services in shopping centres, the exemption of payment of the fixed or minimum monthly remuneration owed by the tenants in addition to a reduction proportional to the reduction of the monthly turnover, up to a limit of 50/prct. of the value, when the establishments have a drop in monthly sales volume, in relation to the sales volume of the homologous month of the year 2019 or, in its absence, to the average sales volume of the six months prior to the Decree of the President of the Republic no. 14-A/2020, of March 18, or of a shorter period, if applicable.”
In the same context, we would also highlight the Judgment of the Supreme Administrative Court, of June 8, Case no. 0871/19.7BEPRT, which clarified that “The tax transparency regime provided for in Article 6 of the IRC Code is not applicable to companies of Insolvency Administrators, for the purposes of imputing the company’s taxable income to the partners, in terms of IRS, under the terms of paragraph 1 of that Article, since the activity of the Judicial Administrator is not specifically provided for in the table referred to in Article 151 of the IRS Code.”
Finally, in Miscellaneous, we highlight the renewal, by the Government, of measures to mitigate the increase in fuel prices, and the approval of new measures for the most affected sectors.
II. LEGISLATION
Ordinance no. 154/2022, of June 2: Establishes the rules regarding the places where smoking is allowed according to paragraphs b) to d) of No. 1 and No. 7 of Article 5 of Law No. 37/2007, of 14 August.
https://files.dre.pt/1s/2022/06/10700/0000600009.pdf
Ordinance no. 154-A/2022, of June 2: Creates and regulates the Support Measure for the Emergency Reinforcement of Social and Health Equipment in 2022.
https://files.dre.pt/1s/2022/06/10701/0000200008.pdf
Ordinance no. 155-A/2022, of June 3: Revision and fixing of the values of the tax rates on petroleum and energy products.
https://files.dre.pt/1s/2022/06/10801/0000200003.pdf
Decree-Law no. 40/2022, of June 6: Creates the map of coverage of fixed and mobile electronic communications networks.
https://files.dre.pt/1s/2022/06/10900/0000400007.pdf
Ordinance no. 159/2022, of June 14: Creates a credit line with subsidized interest rates, called “Cash Line – Agricultural Sector”, aimed at operators engaged in the production, processing or commercialization of agricultural products, with a view to supporting treasury costs to finance their activity.
https://files.dre.pt/1s/2022/06/11400/0000300005.pdf
Ordinance no. 160/2022, of June 15: Third amendment to Ordinance no. 325-A/2019, of September 20, establishing the complementary national rules for the implementation of the National Apiculture Programme (PAN) for the triennium 2020-2022.
https://files.dre.pt/1s/2022/06/11500/0000700009.pdf
Decree-Law no. 41/2022, of June 17: Establishes the regime of mobility of teachers due to illness.
https://files.dre.pt/1s/2022/06/11600/0000200005.pdf
Ordinance no. 160-A/2022, of June 17: Approves the Regulation on the Compensation Scheme for Operators in the Fisheries and Aquaculture Sector for Additional Energy Costs Resulting from Russia’s Military Aggression against Ukraine.
https://files.dre.pt/1s/2022/06/11601/0000200007.pdf
Ordinance no. 160-B/2022, of June 17: Revision and fixing of the values of the tax rates on petroleum and energy products.
https://files.dre.pt/1s/2022/06/11602/0000200004.pdf
Ordinance no. 161/2022, of June 20: Repealing paragraph v) of article 1 of Administrative Rule no. 100/2021, of May 10, amended by Administrative Rule no. 168-A/2021, of August 2, which defines the huntable species that may be hunted during the 2021-2024 hunting seasons.
https://files.dre.pt/1s/2022/06/11700/0000500005.pdf
Ordinance no. 163/2022, of June 22: Percentage to be allocated to the Tax Stabilization Fund.
https://files.dre.pt/1s/2022/06/11900/0000200002.pdf
Ordinance no. 164/2022, of June 23: Regulates the installation of the National Anti-Corruption Mechanism.
https://files.dre.pt/1s/2022/06/12000/0000200003.pdf
Resolution of the Assembly of the Republic no. 28/2022 of June 24: Participation of national authorities in the international effort to investigate, prosecute, convict and punish all war crimes committed during the invasion of Ukraine.
https://files.dre.pt/1s/2022/06/12100/0000200002.pdf
Ordinance no. 164-A/2022, of June 23: Review and setting of the rates of tax on petroleum and energy products.
https://files.dre.pt/1s/2022/06/12101/0000200003.pdf
Law no. 12/2022, of June 27: State Budget 2022.
https://files.dre.pt/1s/2022/06/12200/0000200291.pdf
Resolution of the Assembly of the Republic no. 29/2022 of June 28: Assembly of the Republic budget for 2022.
https://files.dre.pt/1s/2022/06/12300/0000200014.pdf
Decree-Law no. 42/2022, of June 29: Establishes measures to support families and businesses in the context of the armed conflict in Ukraine.
https://files.dre.pt/1s/2022/06/12400/0000300005.pdf
Ordinance no. 165/2022, of June 29: Undertakes the seventh amendment to Ordinance no. 142-B/2012, of 15 May, which defines the conditions under which the National Health Service (SNS) ensures the costs of non-urgent patient transport that is instrumental to the provision of health care services.
https://files.dre.pt/1s/2022/06/12400/0000600007.pdf
Ordinance no. 166/2022, of June 29: Second amendment to Ordinance no. 202/2019, of July 3, which defines the terms and criteria applicable to the pilot project to be adopted within the scope of the consumer incentive system for the return of non-reusable plastic drinks packaging.
https://files.dre.pt/1s/2022/06/12400/0000800008.pdf
Resolution of the Assembly of the Republic no. 30/2022 of June 30: First supplementary budget of the Assembly of the Republic for the year 2022.
https://files.dre.pt/1s/2022/06/12500/0000300009.pdf
Decree-Law no. 42-A/2022, of June 30: Amends the measures applicable in the context of the pandemic disease COVID-19.
https://files.dre.pt/1s/2022/06/12501/0000200007.pdf
Resolution of the Council of Ministers no. 51-A/2022, of June 30: Extends the declaration of the state of alert in relation to the pandemic disease COVID-19.
https://files.dre.pt/1s/2022/06/12501/0000800008.pdf
Ordinance no. 167-A/2022, of June 30: Suspends the update of the rate of the addition on CO2 emissions until 31 August 2022.
https://files.dre.pt/1s/2022/06/12501/0000900009.pdf
Ordinance no. 167-B/2022, of June 30: Establishes the rules regarding eligibility, composition, determination and attribution to public managers, who exercise executive functions in corporate public entities integrated in the National Health Service, of a variable remuneration associated to the recognition and incentive of good management.
https://files.dre.pt/1s/2022/06/12501/0001000024.pdf
Ordinance no. 167-C/2022, of June 30: Temporarily updates the value of the ISP unit rate applicable to coloured and marked gas oil.
https://files.dre.pt/1s/2022/06/12501/0002500025.pdf
III. CASE-LAW
III.1. Court of Justice of the European Union
Judgment of the Court of Justice, of June 2, Case C-617/20: Reference for a preliminary ruling. Judicial cooperation in civil matters. Measures relating to the law on succession. Regulation (EU) No 650/2012. Articles 13 and 28. Validity of the declaration of repudiation of the estate. Heir residing in a Member State other than that of the court having jurisdiction to rule on the succession. Declaration made in the court of the Member State of habitual residence of that heir.
Summary:
“For the reasons stated, the Court of Justice (Fifth Chamber) declares:
Articles 13 and 28 of the Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and the creation of a European Certificate of Succession must be interpreted as meaning that a declaration concerning the renunciation of the succession made by an heir before a court of the Member State of his habitual residence is to be regarded as valid as to form where the formal requirements applicable in that court have been complied with, without it being necessary, for the purposes of that validity, for it to satisfy the formal requirements required by the law applicable to the succession.”.
Judgment of the Court of Justice, of June 2, Case C-112/21: Reference for a preliminary ruling. Approximation of laws. Trade marks. Directive 2008/95/EC – Article 5. Trade mark rights. Article 6(2). Limitation of the effects of the trade mark. Impossibility for the proprietor of a trademark to prohibit third parties from using, in the course of trade, an earlier right of local scope. Requirements. Concept of “earlier right”. Trade name. Owner of a later trademark that has an even earlier right. Relevance.
Summary:
“For the reasons stated, the Court of Justice (Tenth Chamber) declares:
Article 6(2) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that, in order to determine whether there is an ‘earlier right’ within the meaning of that provision, it is not necessary for the proprietor of that right to be able to prohibit the use of the later mark by the proprietor of that right.
Article 6(2) of Directive 2008/95 must be interpreted as meaning that a ‘earlier right’, within the meaning of that provision, may be granted to a third party in a situation where the proprietor of the later trade mark has an even earlier right, recognised under the legislation of the Member State concerned, to the sign registered as a trade mark, provided that, under that legislation, the proprietor of the trade mark and of the even earlier right may no longer prohibit, on the basis of his even earlier right, the use by the third party of his later right.
Judgment of the Court of Justice, of June 2, Case C-196/21: References for a preliminary ruling. Judicial cooperation in civil matters. Service of judicial and extrajudicial documents. Regulation (EC) No 1393/2007. Article 5. Translation of the document. Translation costs borne by the applicant. Concept of “applicant”. Notification, on the initiative of the judicial body seised to decide, of judicial documents to parties to the proceedings.
Summary:
“Article 5(2) of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (‘Service of documents’), repealing Council Regulation (EC) No 1348/2000, must be interpreted as meaning that, where a judicial body orders the transmission of judicial documents to a third party requesting to participate in the proceedings, that judicial body cannot be regarded as the ‘applicant’ within the meaning of that provision.
Judgment of the Court of Justice, of June 3, Case C-188/21: References for a preliminary ruling. Common system of value added tax (VAT). Directive 2006/112/EC. Right to deduct VAT. Arrangements for exercise. Cancellation and subsequent reactivation of the tax identification number of a taxable person. Loss of the right to deduct VAT in respect of transactions carried out in the period prior to that cancellation. Principle of proportionality.
Summary:
Articles 63, 167 and 168, 178 to 180, 182 and 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 principles of the neutrality of value added tax (VAT) and proportionality must be interpreted as precluding a national measure under which a VAT payer whose tax identification number was cancelled because he failed to submit and publish his annual accounts and subsequently reinstated, following the correction of that omission, forfeits his right to deduct input VAT paid in the period prior to that annulment, even though the material conditions giving rise to the right to deduct were met and even though that person had not acted fraudulently or abusively in order to be able to benefit from that right.”.
Judgment of the Court of Justice, of June 16, Case C-572/20: Reference for a preliminary ruling. Free movement of capital. Dividends from dispersed shareholdings. Refund of withholding tax paid by a non-resident company. Conditions. Free movement of capital. Principle of proportionality.
Summary:
“Article 63 TFEU must be interpreted as precluding a provision of the tax legislation of a Member State which makes repayment of withholding tax paid on dividends from shareholdings below the thresholds laid down by Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, as amended by Council Directive 2003/123/EC, of 22 December 2003, received by a company established in another Member State to the proof that that tax cannot be imputed or credited to that company or to its direct or indirect shareholders or deducted by that company as business expenses or operating expenses, if no such requirement is provided for in respect of the repayment of tax on revenue paid by a resident company receiving the same type of income.”.
III.2. General Court of the European Union
III.3. Constitutional Court
Judgment of the Supreme Court of Justice, of June 22, Case no. 449/10.0TTVFR-F.P1.S1: Collective Dismissal. Urgent process.
Summary:
“I- Article 26 (1)(d) of the Labour Procedure Code in consecrating the urgent nature of the action to contest collective dismissal covers the executive phase.
II- Indeed, if certain interests of workers require special promptness, this must not be confined to the declaration of their rights but must extend to the enforcement of those rights”.
Judgment of the Supreme Court of Justice, of June 23, Case no. 831/19.8T8PVZ.P1.S1: Sale and Purchase Agreement. Definitive breach. Cancellation. Restitution of the deposit. Admonitory notice. Reasonable period of time. Delay. Good faith. Duty of cooperation. Abuse of rights. Conclusive behaviour. Promising Purchaser. Promising seller.
Summary:
- Article 412(1) of the Civil Code establishes, as a general principle, the transferability of the rights and obligations of the parties to their respective successors in the event of death, and the communications made to the original promissory purchasers are binding on their successors as if they were addressed directly to them: the heirs of the promissory purchasers succeed in the position of those who have already been summoned.
- There is a definite default in one of three situations:
. when during default the creditor grants the debtor a reasonable final additional period of time to comply (admonitory notice) and the latter still fails to comply (Art. 808 (1) Part II);
. when during the delay the creditor loses interest in the service provided (Article 808(1), Part I), which occurs when it objectively ceases to be useful to him (Article 808 (2)), assessed objectively in the light of the principles of good faith, according to criteria of reasonableness;
. when the debtor himself declares, in serious and definitive terms, that he will not perform (declaration of non-performance) and the creditor, as a result, considers the obligation to be definitively unperformed.
III. The admonitory summons (intimatory statement) must contain three elements: a) a summons to comply; b) the setting of a peremptory term for compliance; c) the admonition or the commencement (admonitory statement) that the obligation will be considered definitively unfulfilled if compliance is not verified within that term.
- The new time limit – not to be confused with or in addition to the initial term – within which the debtor may still comply must be reasonable, that is, it must be established in consistency with the principles of good faith, cooperation of contracting parties and non-abuse of a right.
- There is nothing to prevent, for reasons of procedural economy, the use of a single declaration for the admonitory interpellation and for the settlement.
- The admonitory interpellation is, however, dispensed with when the contracting party to whom it would be addressed has behaved in a way that, in addition to infringing good faith in the contract, reveals a clear intention of not wishing to comply with the contract – that is, when there is a definitive breach of the promissory contract as a result of the anticipated perception that the promised contract will not be materialized, through the assessment of the active or omission behaviour of the counterparty.
VII. Good faith – which is present both in the preparation and formation of the contract (Article 227 of the Civil Code) and also in the fulfilment of obligations and in the exercise of the corresponding right (Article 762 of the same Code) – is a principle which constitutes a sure and certain backbone of our legal system, vivifying it so as to provide a solution to the whole range of problems of social cooperation which it aims to resolve in the field of obligations”.
Judgment of the Porto Court of Appeal, of June 8, Case no. 1579/20.6T8PVZ.P1: International jurisdiction. Civil liability. Criteria of coincidence of causality and necessity.
Summary:
“I – If the defendant is not domiciled or established in a Member State, Regulation (EU) No 1215/2012, does not apply, as a rule, to the determination of jurisdiction or the recognition and enforcement of judgments in civil and commercial matters.
II – In our domestic legal system, the factors for attributing international jurisdiction to the Portuguese courts, provided for in Article 62 of the CPC, are determined by criteria of coincidence, causality and necessity, which, between themselves, are alternative.
III – If the action is intended to enforce civil liability based on tort or delict, for the Portuguese courts to have international jurisdiction by application of the coincidence criterion, the tort must have occurred in Portugal.
IV – By applying the causality criterion, at least one fact that forms part of the cause of action must have been committed in Portugal.
V – If there is some weighty element of personal or real connection between the object of the dispute and the national legal order, the Portuguese courts are also internationally competent if there is a risk of denial of justice, whether due to legal impossibility or to manifest practical difficulty in making the right invoked by the plaintiff effective.
VI – As none of the above criteria are met, the Portuguese courts are internationally incompetent to judge this action”.
Judgment of the Porto Court of Appeal, of June 8, Case no. 2044/18.7T8OAZ-B.P1: Res judicata authority. Event that simultaneously generates civil and labour liability. Non-cumulative indemnities. Double damage.
Summary:
“I- The authority of res judicata embodies the acquiescence of a decision rendered in another action previously filed and falling within the same subject-matter as the one under trial and aims to prevent that the material legal situation, defined by a sentence, may be validly defined differently by another decision, the coexistence of the triple identity provided for in Article 581 of the Code of Civil Procedure not being required.
II – In the event that the event simultaneously generates both civil and labour liability, the compensation fixed within the scope of each jurisdiction and in accordance with the respective rules, are not cumulative, but complementary, and, in view of the dual nature of the event, the person who is called upon in the first line to respond for the compensation of damages is the person responsible for the reparation within the scope of civil liability. Therefore, the party (or parties) responsible for the labour claim, in relation to the same damage, is (are) released from the payment of the benefits of its (their) responsibility up to the amount of the compensation established within the scope of civil liability, and the injured party cannot be doubly compensated for the same damage, without prejudice to the latter being entitled to opt for the compensation that it considers more favourable – a regime that, already provided for in previous laws, results from article 17 of the LAT.
III – Double damage may occur with regard to future patrimonial damage (loss of earnings) related to the loss of earning capacity of the victim, received as a pension (work accident) or as anticipated capital received at once (civil liability).
IV – In view of the imperative nature of the LAT’s regime, in particular in its articles 17 (2), 79 (3), 84 and 125 (1), only the effective payment to the injured party of the indemnities referred to in II by the civil liability has the power to extinguish the liability and corresponding obligation of the labour liability.
Judgment of the Lisbon Court of Appeal, of June 7, Case no. 11/17.7SULSB-E.L1-5: Aggregation of sentences. Suspension of sentence execution.
Summary:
“Only at the end, that is, when the single sentence is determined and the overall situation is assessed, should it be considered whether or not that sentence, which is the one that the offender must serve, may be suspended during its execution, as long as the necessary formal prerequisites are met (the length of the prison sentence imposed must not exceed the limit required by law, currently five years) and the material prerequisites – a favourable prognosis in relation to the behaviour of the offender and satisfaction of the aims of the punishment, under the terms of article 50 (1) of the Penal Code.
-However, if the execution of an installment sentence has been suspended, which is often the case in legal combinations where there is supervening knowledge of concurrent offences, “for the purpose of forming the joint sentence, the extent of the imprisonment actually determined will be taken into account” and once this has been determined, “the court will decide whether it may legally and criminally be replaced by a non-custodial sentence”.
-The majority jurisprudence is based on the idea that res judicata is not formed on the suspension of the execution of the sentence, but only on the measure of that sentence, it being understood that the substitution is resolutively conditioned to the supervening knowledge of the competition, and also on the ideas of the provisional nature of the suspension of the sentence and the judgement rebus sic stantibus on this issue, an orientation that the Constitutional Court has already judged not to be unconstitutional”.
Judgement of the Guimarães Court of Appeal, of June 2, Case no. 3655/20.6T8GMR-A.G1: Executioner’s embargos. Indivisibility of mortgage. Waiver. Proportional liability.
Summary:
“- The indivisibility of the mortgage, as provided for in article 696 of the Civil Code, as a characteristic of the mortgage is rooted in the very structure of the right in rem but also embodies a reinforcement of the creditor’s position left by the legislator to the will of the parties, since in its essential features a divisible mortgage does not cease to be a mortgage.
– Consequently, we are faced here with a non-essential characteristic of the same, which may be the object of a unilateral transaction, maxime an abdicative waiver, which may be consubstantiated through a tacit declaration.
– Having said this, when the conclusive facts allow the conclusion to be drawn that the relationship between the material stability of the original guarantee and the protection of the entire debt is broken or interrupted, the creditor will have tacitly renounced the indivisibility of the mortgage, and may not thereafter enforce it indivisibly, but only divisibly, with reference to its current value”.
Judgement of the Évora Court of Appeal, of June 9, Case no. 1370/20.0T8LLE-A.E1: Horizontal Property. Urban allotment. Minutes of the condominium owners general meeting. Enforcement order.
Summary:
“I. The regime of horizontal property applies to allotment operations insofar as the obligation of owners to contribute to the expenses of the common parts is concerned, by virtue of the provisions of article 43 (3) of Decree-Law 555/99, of 16-10 (RJUE).
The minutes of the meetings of the plot owners meetings are considered to be the minutes of the condominium members meetings, namely for the purposes of article 6 (1) of Decree-Law no. 268/94, of 25-10, and may be considered an enforceable title if they have the characteristics set out in that rule.
III.4. Courts of Justice
Judgment of the Supreme Court of Justice, of June 22, Case no. 449/10.0TTVFR-F.P1.S1: Collective Dismissal. Urgent process.
Summary:
“I- Article 26 (1)(d) of the Labour Procedure Code in consecrating the urgent nature of the action to contest collective dismissal covers the executive phase.
II- Indeed, if certain interests of workers require special promptness, this must not be confined to the declaration of their rights but must extend to the enforcement of those rights”.
Judgment of the Supreme Court of Justice, of June 23, Case no. 831/19.8T8PVZ.P1.S1: Sale and Purchase Agreement. Definitive breach. Cancellation. Restitution of the deposit. Admonitory notice. Reasonable period of time. Delay. Good faith. Duty of cooperation. Abuse of rights. Conclusive behaviour. Promising Purchaser. Promising seller.
Summary:
- Article 412(1) of the Civil Code establishes, as a general principle, the transferability of the rights and obligations of the parties to their respective successors in the event of death, and the communications made to the original promissory purchasers are binding on their successors as if they were addressed directly to them: the heirs of the promissory purchasers succeed in the position of those who have already been summoned.
- There is a definite default in one of three situations:
. when during default the creditor grants the debtor a reasonable final additional period of time to comply (admonitory notice) and the latter still fails to comply (Art. 808 (1) Part II);
. when during the delay the creditor loses interest in the service provided (Article 808(1), Part I), which occurs when it objectively ceases to be useful to him (Article 808 (2)), assessed objectively in the light of the principles of good faith, according to criteria of reasonableness;
. when the debtor himself declares, in serious and definitive terms, that he will not perform (declaration of non-performance) and the creditor, as a result, considers the obligation to be definitively unperformed.
III. The admonitory summons (intimatory statement) must contain three elements: a) a summons to comply; b) the setting of a peremptory term for compliance; c) the admonition or the commencement (admonitory statement) that the obligation will be considered definitively unfulfilled if compliance is not verified within that term.
- The new time limit – not to be confused with or in addition to the initial term – within which the debtor may still comply must be reasonable, that is, it must be established in consistency with the principles of good faith, cooperation of contracting parties and non-abuse of a right.
- There is nothing to prevent, for reasons of procedural economy, the use of a single declaration for the admonitory interpellation and for the settlement.
- The admonitory interpellation is, however, dispensed with when the contracting party to whom it would be addressed has behaved in a way that, in addition to infringing good faith in the contract, reveals a clear intention of not wishing to comply with the contract – that is, when there is a definitive breach of the promissory contract as a result of the anticipated perception that the promised contract will not be materialized, through the assessment of the active or omission behaviour of the counterparty.
VII. Good faith – which is present both in the preparation and formation of the contract (Article 227 of the Civil Code) and also in the fulfilment of obligations and in the exercise of the corresponding right (Article 762 of the same Code) – is a principle which constitutes a sure and certain backbone of our legal system, vivifying it so as to provide a solution to the whole range of problems of social cooperation which it aims to resolve in the field of obligations”.
Judgment of the Porto Court of Appeal, of June 8, Case no. 1579/20.6T8PVZ.P1: International jurisdiction. Civil liability. Criteria of coincidence of causality and necessity.
Summary:
“I – If the defendant is not domiciled or established in a Member State, Regulation (EU) No 1215/2012, does not apply, as a rule, to the determination of jurisdiction or the recognition and enforcement of judgments in civil and commercial matters.
II – In our domestic legal system, the factors for attributing international jurisdiction to the Portuguese courts, provided for in Article 62 of the CPC, are determined by criteria of coincidence, causality and necessity, which, between themselves, are alternative.
III – If the action is intended to enforce civil liability based on tort or delict, for the Portuguese courts to have international jurisdiction by application of the coincidence criterion, the tort must have occurred in Portugal.
IV – By applying the causality criterion, at least one fact that forms part of the cause of action must have been committed in Portugal.
V – If there is some weighty element of personal or real connection between the object of the dispute and the national legal order, the Portuguese courts are also internationally competent if there is a risk of denial of justice, whether due to legal impossibility or to manifest practical difficulty in making the right invoked by the plaintiff effective.
VI – As none of the above criteria are met, the Portuguese courts are internationally incompetent to judge this action”.
Judgment of the Porto Court of Appeal, of June 8, Case no. 2044/18.7T8OAZ-B.P1: Res judicata authority. Event that simultaneously generates civil and labour liability. Non-cumulative indemnities. Double damage.
Summary:
“I- The authority of res judicata embodies the acquiescence of a decision rendered in another action previously filed and falling within the same subject-matter as the one under trial and aims to prevent that the material legal situation, defined by a sentence, may be validly defined differently by another decision, the coexistence of the triple identity provided for in Article 581 of the Code of Civil Procedure not being required.
II – In the event that the event simultaneously generates both civil and labour liability, the compensation fixed within the scope of each jurisdiction and in accordance with the respective rules, are not cumulative, but complementary, and, in view of the dual nature of the event, the person who is called upon in the first line to respond for the compensation of damages is the person responsible for the reparation within the scope of civil liability. Therefore, the party (or parties) responsible for the labour claim, in relation to the same damage, is (are) released from the payment of the benefits of its (their) responsibility up to the amount of the compensation established within the scope of civil liability, and the injured party cannot be doubly compensated for the same damage, without prejudice to the latter being entitled to opt for the compensation that it considers more favourable – a regime that, already provided for in previous laws, results from article 17 of the LAT.
III – Double damage may occur with regard to future patrimonial damage (loss of earnings) related to the loss of earning capacity of the victim, received as a pension (work accident) or as anticipated capital received at once (civil liability).
IV – In view of the imperative nature of the LAT’s regime, in particular in its articles 17 (2), 79 (3), 84 and 125 (1), only the effective payment to the injured party of the indemnities referred to in II by the civil liability has the power to extinguish the liability and corresponding obligation of the labour liability.
Judgment of the Lisbon Court of Appeal, of June 7, Case no. 11/17.7SULSB-E.L1-5: Aggregation of sentences. Suspension of sentence execution.
Summary:
“Only at the end, that is, when the single sentence is determined and the overall situation is assessed, should it be considered whether or not that sentence, which is the one that the offender must serve, may be suspended during its execution, as long as the necessary formal prerequisites are met (the length of the prison sentence imposed must not exceed the limit required by law, currently five years) and the material prerequisites – a favourable prognosis in relation to the behaviour of the offender and satisfaction of the aims of the punishment, under the terms of article 50 (1) of the Penal Code.
-However, if the execution of an installment sentence has been suspended, which is often the case in legal combinations where there is supervening knowledge of concurrent offences, “for the purpose of forming the joint sentence, the extent of the imprisonment actually determined will be taken into account” and once this has been determined, “the court will decide whether it may legally and criminally be replaced by a non-custodial sentence”.
-The majority jurisprudence is based on the idea that res judicata is not formed on the suspension of the execution of the sentence, but only on the measure of that sentence, it being understood that the substitution is resolutively conditioned to the supervening knowledge of the competition, and also on the ideas of the provisional nature of the suspension of the sentence and the judgement rebus sic stantibus on this issue, an orientation that the Constitutional Court has already judged not to be unconstitutional”.
Judgement of the Guimarães Court of Appeal, of June 2, Case no. 3655/20.6T8GMR-A.G1: Executioner’s embargos. Indivisibility of mortgage. Waiver. Proportional liability.
Summary:
“- The indivisibility of the mortgage, as provided for in article 696 of the Civil Code, as a characteristic of the mortgage is rooted in the very structure of the right in rem but also embodies a reinforcement of the creditor’s position left by the legislator to the will of the parties, since in its essential features a divisible mortgage does not cease to be a mortgage.
– Consequently, we are faced here with a non-essential characteristic of the same, which may be the object of a unilateral transaction, maxime an abdicative waiver, which may be consubstantiated through a tacit declaration.
– Having said this, when the conclusive facts allow the conclusion to be drawn that the relationship between the material stability of the original guarantee and the protection of the entire debt is broken or interrupted, the creditor will have tacitly renounced the indivisibility of the mortgage, and may not thereafter enforce it indivisibly, but only divisibly, with reference to its current value”.
Judgement of the Évora Court of Appeal, of June 9, Case no. 1370/20.0T8LLE-A.E1: Horizontal Property. Urban allotment. Minutes of the condominium owners general meeting. Enforcement order.
Summary:
“I. The regime of horizontal property applies to allotment operations insofar as the obligation of owners to contribute to the expenses of the common parts is concerned, by virtue of the provisions of article 43 (3) of Decree-Law 555/99, of 16-10 (RJUE).
The minutes of the meetings of the plot owners meetings are considered to be the minutes of the condominium members meetings, namely for the purposes of article 6 (1) of Decree-Law no. 268/94, of 25-10, and may be considered an enforceable title if they have the characteristics set out in that rule.
III.5. Administrative and Tax Court
Judgement of the Southern Central Administrative Court, of June 9, Case no. 1458/09.8BESNT: Judged liquidation. Default interest.
Summary:
“I – The general principle of two years prior to attachment, as set out in Article 734 of the Civil Code, shall apply to default interest on general and special real estate credit privilege, for IRS and IMI credits, to be considered in the ranking of credits.
II – The remaining default interest of the enforceable debt cannot be counted as accessory to the credit covered by the preferential credit, but as an enforceable credit it enjoys attachment, being in the lower bracket of those credits that may be graduated and may be counted under the terms of article 44 of the LGT and dealt with and graduated in the proper place.
III – Article 262(8) of the CPPT only applies to public credits that are collected by the creditor’s own tax department and not to non-tax credits.
IV – Late payment interest on non-tax credits should be counted up to the moment of liquidation”.
Judgement of the Southern Central Administrative Court, of June 29, Case no. 116/22.2 BCLSB: Sports Justice. Roller hockey. Protective order. Preliminary refusal.
Summary:
“I) It is excluded from the jurisdiction of the Court of Arbitration for Sport and, therefore, also from the scope of competence of this TCA South, as it is exclusive to sports federations, the resolution of issues arising from the application of technical and disciplinary rules directly concerning the practice of sports competition itself (cf. art. 4 paragraph 6, of the Law of the TAD).
- II) The alleged wrongful display of a red card by the match referee, a circumstance which led to the suspension sanction applied to the Applicant, cannot be considered by the ATT.
III) Not verifying the fulfillment of the assumption of fumus boni juris, the writ must be dismissed”.
Judgment of the North Central Administrative Court, of June 9, Case no: 001408/21.3BEBRG: Salary guarantee fund; Insolvency; Recognition of labour claims by judgment; Reference period; Article 319 of the labour code regulation.
Summary:
“1. The credits become liquid and enforceable, being litigious, with the transit in res judicata of the court decision that recognises them.
- But that statement is valid only with regard to the employer, who is the debtor, and for the purposes, in particular, of assessing whether the claim is time-barred or not.
- It does not apply to the Wage Guarantee Fund. In relation to the Wage Guarantee Fund there are specific norms that regulate the matter, those contained in article 319 of the Labour Code Regulations, which state which credits the payment of which this Fund guarantees, that is, those that can be demanded of it, and which do not coincide, obviously, with all the credits that can be demanded of the employer.
- In accordance with the provisions of Paragraph 2 of Article 319 of the Labour Code Regulations “If there are no outstanding claims in the reference period mentioned in the previous paragraph, or their amount is lower than the maximum limit defined in paragraph 1 of the following article, the Wage Guarantee Fund guarantees up to this limit the payment of outstanding claims after the said reference period”.
Judgment of the Supreme Administrative Court, of June 8, Case no. 0871/19.7BEPRT: Insolvency Administrator. Fiscal transparency.
Summary:
“The tax transparency regime provided for in Article 6 of the IRC Code is not applicable to companies of Insolvency Administrators, for the purposes of imputing the company’s taxable income to the partners, in terms of IRS, under the terms of paragraph 1 of that Article, since the activity of the Judicial Administrator is not specifically provided for in the table referred to in Article 151 of the IRS Code.”
Judgment of the Supreme Administrative Court, of June 8, Case no. 01826/15.6BELRS: Stamp Tax. Service tax. Merchant.
Summary:
“I- With the introduction of Law 150/99, of 11/09, Stamp Duty has changed its essential nature from a tax on documents to a true tax on operations which, regardless of the form in which they are carried out, reveal income or wealth. In some cases it is levied on expenses, in others on income, and in still others on assets, a situation which inevitably introduces an element which disrupts the coherence of the tax and therefore poses a greater challenge to the interpreter. In its current form, stamp duty is configured as a means of attaining manifestations of contributory capacity that are not covered by the assessment rules of any other taxes and thus tends to assume a residual function.
II – Item 17.3.4 of the TGIS, in the wording in force in 2012 and resulting from the reform introduced by Law 150/99, of 11/09, broadens the scope of application in relation to article 120-A of the previous Table, as it applies not only to commissions (a term which should be interpreted in accordance with banking and financial jargon), but also to any and all other consideration for financial services, provided that these are not services subject to VAT and are not exempt from this tax.
III – The Merchant Service Charge (MSC) is a commission charged to payees (as a rule, merchants) by their respective payment service providers for each card transaction carried out through an automated payment terminal (APT). Normally, the SCT is a percentage of the value of the transaction.
IV – And this provision of payment services falls, therefore, within the concept of “Other commissions and consideration for financial services”, and is therefore subject to Stamp Duty, through the application of item 17.3.4 of the TGIS, in the wording in force in 2012, the alteration in the norm introduced by art.153, of Law 7-A/2016, of 30/03 being irrelevant.”
Judgment of the Supreme Administrative Court, of June 8, Case no. 0503/19.3BELRS: Expiry of the right of liquidation. Compensatory interest. Error attributable to the administration. Compensation.
Summary:
“I – The right to interest on damages provided for in Article 43(1) of the General Tax Law, deriving from the judicial annulment of an assessment act, depends on it having been demonstrated in the proceedings that this act is affected by an error on the assumptions of fact or of law attributable to the Tax Administration.
II – The annulment of an assessment act based on the forfeiture of the right to assess the tax, as the notification of that act was not made within the limitation period, does not imply the existence of any error on the factual or legal assumptions of the assessment, so that, under the aforementioned Article 43 of the LGT the taxpayer is not entitled to compensatory interest.
III – The conclusion set out in point II does not rule out the taxpayer’s right, under the combined provisions of Article 22 of the Constitution of the Portuguese Republic and Law 67/2007, of December 31, to request, in the appropriate proceedings, the compensation to which he or she feels entitled”.
Judgment of the Supreme Administrative Court, of June 22, Case no. 02131/11.2BELRS: IRS. Official assessment. Taxation by the actual income.
Summary:
“I – The time limit provided for in Article 77 of the CIRS for the ex officio assessment of IRC in the event of failure by the taxpayer to submit a tax return is not a limitation period; it is merely a time limit addressed to the AT services for diligent action by the services in order to prevent the expiry of the right to assess (which is subject to the normal time limit).
II – In cases where the taxpayer fails to file a tax return, and without prejudice to the AT’s duty to promote the ex officio provisional tax assessment pursuant to article 76(1)(b) of the CIRS, it is the AT’s duty to avoid that this failure (irrespective of the penalties applicable for the breach of ancillary declaratory duties) results in a future advantage for the taxpayer in default. However, it is the AT’s duty to find out, through the exercise of its inspection powers, about the taxpayer’s real economic situation, particularly when the taxpayer submits the tax return for that tax year after the deadline.
IV. BRIEFS
IV.1. DOCTRINE
IV.1.1. Monographs and Periodic Publications
Fernanda Paula Marques de Oliveira, Atas do II Congresso de Direito do Urbanismo, Almedina, junho 2022.
Bruna de Sousa, Da Perda de Chance na Responsabilidade Cilvil do Médico, Almedina, junho 2022.
José Casalta Nabais, Estudos de Direito do Património Cutural, Almedina, junho 2022.
André Alfar Rodrigues, Regime de Proteção dos Denunciantes (Whistleblowers), Almedina, junho 2022.
Jorge Andrade da Silva, Código dos Contratos Públicos – Anotado e Comentado, Almedina, junho 2022.
Mercilia Pereira Gonçalves, O Notário e a Atividade Notarial, Almedina, junho 2022.
Jorge Bacelar Gouveia, Direito Internacional da Segurança – Revisto e Atualizado, 2ª edição, Almedina, junho 2022.
Vitorino Gouveia, O RGPD e os Recursos Humanos – Guia Prático para a Conformidade, 2ª edição, Almedina, junho 2022.
Luís Manuel Teles de Menezes Leitão, Código da Insolvência e Recuperação de Empresas – Anotado, 12ª Edição, Almedina, junho 2022.
Esmeralda Nascimento e Márcia Trabulo, Elucidário, 22ª Edição, Almedina, junho 2022.
Débora Melo Fernandes, Preferências Locais na Contratação Pública, Almedina, junho 2022.
Margarida Sousa Martins, Da Admissibilidade das Gravações e Fotografias recolhidas por Particulares como Meio de Prova em Processo Penal, Almedina, junho 2022.
Isabel Celeste M. Fonseca, Resolução Alternativa de Litígios Jurídico-Públicos, Almedina, junho 2022.
Cristina Araújo Dias, Código Civil Anotado – Livro V : Direito das Sucessões, 2ª edição, Almedina, junho 2022.
Assunção Cristas, Mar e Direito em Contexto, Almedina, junho 2022.
Isabel Ferreira Quelhas Geraldes, Código do Registo Predial – Anotado e Comentado, 3ª edição, Almedina, junho 2022.
Frederico Machado Simões, A Infração Sucessiva no Direito das Contraordenações, Almedina, junho 2022.
Paulo Pimenta, Código de Processo Civil Anotado – Volume 1 : Parte Geral e Ação Declarativa, 3ª edição, Almedina, junho 2022.
Helena Prata Ferreira, A Justiciabilidade dos Direitos Económicos e Sociais, Almedina, junho 2022.
António Santos Abrantes Geraldes, Paulo Pimenta, e Luís Filipe Pires de Sousa, Código de Processo Civil Anotado – Volume 2, 2ª edição, Almedina, junho 2022.
IV.1.2. Generic Guidelines & Cia
Circulated Letter no.: 90054, of 2022-06-06, by order of the Subdirector General of the Collection Area.
Subject: Fiscal representation of the non-resident. Clarification of procedures.
Circulated Letter no.: 90056, of 2022-06-15, by order of the Subdirector General of the Collection Area.
Subject: Brexit. Fiscal representation. Update of Circular Letter No. 90031/2021, of 11/01.
Circulated Letter no.: 20242, of 2022-06-17, by order of the Subdirector General of IR and International Relations.
Subject: Extraordinary and transitional incentive scheme to maintain jobs. Article 403 of Law no. 75-B/2020, of 31 December.
Circulated Letter no.: 30249, of 2022-06-27, by order of the Subdirector General of the Tax Management Area – VAT.
Subject: VAT. State Budget for 2022. Amendments to the VAT Code and complementary legislation.
Circulated Letter no.: 20243, of 2022-06-30, by order of the Subdirector General of IR and International Relations.
Subject: Ex-residents’ tax regime for the years 2021, 2022 and 2023. Article 12-A of the IRS Code and transitional rules for the year 2021. State Budget Law/2022.
IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation
In June, the Government renewed the measures to mitigate the increase in fuel prices for the months of July and August, supporting all consumers through a reduction in taxes and approving new measures for the most affected sectors.
Firstly, the ISP discount equivalent to a decrease in the VAT rate from 23% to 13% will be maintained for the months of July and August.
As for compensation through ISP reduction of the additional VAT revenue arising from fuel price rises, the value will remain stable in the same months, while the update of the carbon tax in this period will also remain suspended.
New measures directed to specific sectors of activity were also approved: i) the Extraordinary Professional Diesel (GPE) mechanism was created for the goods transport sector, through which 17 cents per litre will be reimbursed, up to a maximum of 8500 litres consumed in the two months; ii) the 50% reduction in the Single Road Tax (IUC) for category D vehicles was maintained; iii) financial support for buses and taxis was approved for the passenger transport sector.
For both sectors (goods and passengers) the extension for five years of the 120% increase in IRC (corporate income tax) on fuel costs is maintained, as well as making the payment of tax obligations more flexible. Finally, for the agricultural sector, the ISP discount is increased from 3.4 cents per litre of agricultural diesel to 6 cents per litre.
Considering the outlook for price developments in the third week of June, and the price changes seen in the first two weeks, there was a further reduction in the ISP rates on both fuels, as of 20 June, reducing the tax burden (ISP + VAT) by an additional 1.2 cents per litre of petrol and 0.4 cents per litre of diesel. As such, the ISP rate for diesel has fallen to the minimum permitted under Directive 2003/96/EC, of 27 October.
On 28 June, the new withholding tables for pensioners came into force. All tax brackets of the withholding tables up to 2.5 times the social support index (IAS) was updated by 10 euros. The aim of this update is to prevent pensioners with pensions of up to 1108 euros from moving up the deduction scale, just because of the extraordinary increase in pensions.
In this way, pensions that will be paid from July onwards should already reflect the 10-euro increase, ensuring an effective improvement in net disposable income, as foreseen in the State Budget for 2022.
IV.2.2. Industrial Property
ICC Portugal (the Portuguese National Delegation of the International Chamber of Commerce) promoted, together with its Intellectual Property Committee, an event to mark the 10 years of the Intellectual Property Court.
The event took place on 28 June, in Lisbon, between 2 pm and 6 pm and counted not only with the contribution of magistrates from the Intellectual Property Court itself, but also with the intervention of IP experts from several European Union Member States (Spain, France, Italy and Germany) who addressed some topics regarding their respective IP jurisdictions.
The new Table of Industrial Property Fees was also published this month in the Diário da República, 2nd series, updating the fees related to the various types of Industrial Property for the year 2022.
This update resulted from a decision of INPI’s Directive Council, of 25 May 2022, and considering the provisions of article 3 of Ordinance 201-A/2019, of 01 July, is effective as of 1 July 2022.
https://inpi.justica.gov.pt/Noticias-do-INPI/Atualizacao-das-taxas-de-propriedade-industrial
The University of Lisbon Law School, in partnership with the Portuguese Intellectual Law Association, will hold the Lisbon Summer Course on Intellectual Property, via online.
This year’s edition of this course, under the scientific coordination of Dário Moura Vicente and Sofia de Vasconcelos Casimiro, will be entitled “The State of the Matters in 2022”, and will take place from July 4th to 8th.
This initiative aims to provide the interested parties with the opportunity to examine and update themselves in relation to the most current issues of Intellectual Property Law.
The course, which will last for five days, is divided into five themes, the sessions of which may be attended separately, the first dealing with Intellectual Property Law in an international context, the second with Copyright, the third with Information Society Law, the fourth with Patents and Trade Secrets, and the fifth with Distinctive Signs.
INPI, in collaboration with the Community of Portuguese-speaking Countries, organised, on 23-24 June, the first Portuguese-speaking Industrial Property Seminars.
The IP Encounters aimed to promote the transfer of knowledge, continuous improvement and enhancement of the staff of the national entities that are responsible for granting Industrial Property Rights, through regular sharing of experiences, discussion and reflection on issues of common interest.
https://inpi.justica.gov.pt/Noticias-do-INPI/I-Jornadas-Lusofonas-de-Propriedade-Industrial
On June 23, under the scope of the 1st Lusophone Conferences on Industrial Property, the new Industrial Property Portal of Lusophone countries was presented, now available at https://www.portal-lusofonia.org.
This new digital platform aims to be a gateway for the sharing of specialised content information on Industrial Property (IP) within the Lusophony.
https://inpi.justica.gov.pt/Noticias-do-INPI/Portal-da-Propriedade-Industrial-da-Lusofonia
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