I. EDITORIAL – AMENDMENT TO THE CODE OF CRIMINAL PROCEDURE; IMPLEMENTING RULES FOR THE STATE BUDGET FOR 2022
In terms of legislation, the month of August was characterised by the publication of Law no. 13/2022, of August 1, amending the Code of Criminal Procedure and Law no. 5/2002, of January 11, which sets out measures to combat organised and economic-financial crime, and by the publication of Decree-Law no. 53/2022, of August 12, which lays down the rules for implementing the State Budget for 2022.
On the legislative front, the following should also be highlighted:
- Law no. 16/2022 of August 16, which approved the Electronic Communications Law, transposing Directives 98/84/EC, 2002/77/EC and (EU) 2018/1972 and amending and repealing several national laws;
- Law no. 17/2022, of August 17, which transposed Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018, amending the legal framework for competition and the statutes of the Competition Authority;
- Law no. 18/2022, of August 25, which changed the legal regime for the entry, stay, exit and expulsion of foreigners from national territory.
In the scope of case law, it is worth mentioning the Judgement of the Constitutional Court, no. 540/2022, of August 16, Case no. 752/2022, which decided to: “(…) b) Deem unconstitutional the rule contained in Article 24, no. 1 of Law no. 65/2003, of August 23, interpreted as meaning that the detainee who consented to his or her surrender may not appeal against the order that ratified the consent for surrender to the authority that issued the arrest warrant and – after validation of the guarantee provided – determined the execution of his or her surrender, for violation of Article 32, no. 1 of the Constitution of the Portuguese Republic; (…).”.
Finally, in Miscellaneous, we highlight the approval of (i) the decree-law strengthening the family allowance and amending the respective access brackets; (ii) the regulation on the Childcare Guarantee; (iii) the draft law to complete the transposition of Directive (EU) 2019/2161, of the European Parliament and of the Council, which aims to ensure better enforcement and modernisation of Union rules on consumer protection; and (iv) the decree-law simplifying the procedure of the incident of verification of liabilities and ranking of claims in insolvency proceedings and entrusting the insolvency administrator with the responsibility to submit a proposal for ranking the recognised claims together with the list of recognised claims, allowing the judge, in case of agreement and in the absence of objections, to simply ratify both documents.
II. LEGISLATION
Law no. 13/2022, of August 1: Amends the Criminal Procedure Code and Law no. 5/2002, of January 11, establishing measures to combat organised and economic-financial crime.
https://files.dre.pt/1s/2022/08/14700/0000300007.pdf
Ordinance no. 200/2022, of August 1: Updates the value of the reference unit in the table annexed to Ordinance no. 1386/2004, of November 10, in its current wording.
https://files.dre.pt/1s/2022/08/14700/0001300014.pdf
Law no. 14/2022, of August 2: Transposes Directive (EU) 2019/884 of the European Parliament and of the Council, regarding the exchange of information on third-country nationals, amending Law no. 37/2015, of May 5, and Decree-Law no. 171/2015, of August 25.
https://files.dre.pt/1s/2022/08/14800/0000500025.pdf
Notice no. 82/2022, of August 3: Entry into force of the Partnership Agreement on Relations and Cooperation between the European Union and its Member States, of the one part, and New Zealand, of the other part, signed in Brussels on 5 October 2016.
https://files.dre.pt/1s/2022/08/14900/0002000020.pdf
Ordinance no. 202/2022, of August 3: Undertakes the second amendment to Ordinance no. 151-B/2022, of May 23, amended by Ordinance no. 169/2022, of July 4, establishing an exceptional and temporary co-payment scheme for rapid antigen tests (TRAg) for professional use.
https://files.dre.pt/1s/2022/08/14900/0002100022.pdf
Resolution of the Assembly of the Republic no. 48/2022, of August 4: Recommends that the Government annually updates the scale of fees for legal protection.
https://files.dre.pt/1s/2022/08/15000/0000200002.pdf
Decree-Law no. 52/2022, of August 4: Approves the Statute of the National Health Service.
https://files.dre.pt/1s/2022/08/15000/0000500052.pdf
Resolution of the Assembly of the Republic no. 53/2022, of August 8: Opinion on the proposal for a directive of the European Parliament and of the Council on the recovery and confiscation of property and the proposal for a Council decision on the addition of the violation of Union restrictive measures to the areas of crime listed in Article 83(1) of the Treaty on the Functioning of the European Union.
https://files.dre.pt/1s/2022/08/15200/0000300003.pdf
Resolution of the Assembly of the Republic no. 54/2022, of August 9: Adoption by the Assembly of the Republic of the European initiatives considered to be priorities for the purposes of scrutiny within the scope of the European Commission Work Programme for 2022.
https://files.dre.pt/1s/2022/08/15300/0000200002.pdf
Resolution of the Council of Ministers no. 69/2022, of August 9: Approves the National Strategy to Prevent and Combat Money Laundering, the Financing of Terrorism and the Financing of the Proliferation of Weapons of Mass Destruction.
https://files.dre.pt/1s/2022/08/15300/0000300007.pdf
Law no. 15/2022, of August 11: Simplifies the protection regime against disinformation and ensures its articulation with the European Action Plan against Disinformation, amending Law no. 27/2021, of May 17, which approves the Portuguese Charter of Human Rights in the Digital Era.
https://files.dre.pt/1s/2022/08/15500/0000200003.pdf
Ordinance no. 205/2022, of August 11: Amends Ordinance no. 170-A/2020, of July 13, which regulates the procedures, conditions and access terms of the extraordinary incentive to the normalization of entrepreneurial activity.
https://files.dre.pt/1s/2022/08/15500/0000600007.pdf
Decree-Law no. 53/2022, of August 12: Establishes the implementing rules for the State Budget for 2022.
https://files.dre.pt/1s/2022/08/15600/0000200084.pdf
Ordinance no. 205-A/2022, of August 12: Establishes the maximum margins and the respective selling price to the public of bottled liquefied petroleum gas (LPG).
https://files.dre.pt/1s/2022/08/15601/0000200004.pdf
Law no. 16/2022, of August 16: Approves the Electronic Communications Law, transposing Directives 98/84/EC, 2002/77/EC and (EU) 2018/1972, amending Laws nos. 41/2004 of August 18 and 99/2009, of September 4, and Decree-Laws nos. 151-A/2000, of July 20 and 24/2014, of February 14, and revoking Law no. 5/2004, of February 10 and Ordinance no. 791/98, of September 22.
https://files.dre.pt/1s/2022/08/15700/0000200137.pdf
Ordinance no. 205-B/2022, of August 16: Creates extraordinary support to be allocated to farmers whose livestock was affected by the fires that occurred in mainland Portugal and regulates the respective allocation conditions.
https://files.dre.pt/1s/2022/08/15701/0000200006.pdf
Law no. 17/2022, of August 17: Transposes Directive (EU) 2019/1 of the European Parliament and of the Council, of 11 December 2018, which aims to give Member States competition authorities the power to enforce the law more effectively and ensure the proper functioning of the internal market, amending the legal framework for competition, approved by Law no. 19/2012, of May 8, and the statutes of the Competition Authority.
https://files.dre.pt/1s/2022/08/15800/0000200116.pdf
Decree-Law no. 56/2022, of August 19: Reinforces the family allowance and changes the respective access scales.
https://files.dre.pt/1s/2022/08/16000/0000300004.pdf
Regulatory Decree no. 3/2022, of August 19: Regulates the Guarantee for Childhood.
https://files.dre.pt/1s/2022/08/16000/0000500007.pdf
Ordinance no. 209/2022, of August 23: Amends Ordinance no. 314/2015, of September 30, which sets out the method for apportioning the amount of 37.5% of the special online gambling tax.
https://files.dre.pt/1s/2022/08/16200/0000200003.pdf
Ordinance no. 212/2022, of August 23: Updates the values of the license classes.
https://files.dre.pt/1s/2022/08/16200/0001700017.pdf
Law no. 18/2022, of August 25: Changes the legal regime for the entry, stay, exit and expulsion of foreigners from national territory.
https://files.dre.pt/1s/2022/08/16400/0000200137.pdf
Decree-Law no. 57/2022, of August 25: Simplifies the processing of the incident of verification of liabilities and ranking of claims in insolvency proceedings.
https://files.dre.pt/1s/2022/08/16400/0013800139.pdf
Decree-Law no. 57-A/2022, of August 26: Alters the measures applicable in the context of the COVID-19 disease pandemic.
https://files.dre.pt/1s/2022/08/16501/0000200003.pdf
Resolution of the Council of Ministers no. 73-A/2022, of August 26: Extends the declaration of the situation of alert, in the context of the pandemic of the disease COVID-19.
https://files.dre.pt/1s/2022/08/16501/0000400004.pdf
Ordinance no. 216/2022, of August 30: Undertakes the first amendment to Ordinance no. 7/2022, of January 4, which regulates the conditions of publicity of working hours and the way of recording the respective working hours.
https://files.dre.pt/1s/2022/08/16700/0000400005.pdf
Ordinance no. 217/2022, of August 31: Provides for the third amendment to Ordinance no. 151-B/2022, of May 23, amended by Ordinance no. 169/2022, of July 4 and 202/2022 of August 3, which establishes an exceptional and temporary co-payment scheme for rapid antigen tests (TRAg) for professional use.
https://files.dre.pt/1s/2022/08/16800/0000400004.pdf
Ordinance no. 217-A/2022, of August 31: Suspends the update of the rate of the addition on CO2 emissions.
https://files.dre.pt/1s/2022/08/16801/0000200002.pdf
Ordinance no. 217-B/2022, of August 31: Revision and setting of the rates of tax on oil and energy products.
https://files.dre.pt/1s/2022/08/16801/0000300003.pdf
Ordinance no. 217-C/2022, of August 31: Undertakes the temporary update of the ISP unit rate applicable to coloured and marked gas oil.
III. CASE-LAW
III.1. Court of Justice of the European Union
Judgment of the Court of Justice, of August 1, Case C-242/22 PPU: Reference for a preliminary ruling. Urgent preliminary ruling procedure. Judicial cooperation in criminal matters. Directive 2010/64/EU. Right to interpretation and translation. Article 2(1) and Article 3(1). Concept of “essential document”. Directive 2012/13/EU. Right to information in criminal proceedings. Article 3(1)(d). Scope of application. Non-transposition into national law. Direct effect. Charter of Fundamental Rights of the European Union. Article 47 and Article 48(2). European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 6. Sentencing to a term of imprisonment suspended on probation. Failure to comply with obligations under probation. Failure to translate an essential document and failure to have an interpreter when that document was drawn up. Revocation of the suspension of the enforcement of the sentence. Failure to translate procedural documents relating to that revocation. Consequences for the validity of such revocation. Procedural defect entailing relative nullity.
Summary:
“Article 2(1) and Article 3(1) of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings and Article 3(1)(d) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, read in the light of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union and the principle of effectiveness must be interpreted as precluding national legislation under which a breach of the rights laid down in those provisions of those directives must be complained of by the beneficiary of those rights within a certain period of time, on pain of a penalty, where that period begins to run even before the person concerned has been informed, in a language which he speaks or understands, first, of the existence and scope of his right to interpretation and translation and, second, of the existence and content of the essential document concerned and of the effects attached thereto. “.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62022CJ0242
III.2. Constitutional Court
Judgement of the Constitutional Court, no. 540/2022, of August 16, Case no. 752/2022.
Summary:
“In view of the foregoing, it is decided, in granting the appeal:
(a) take no cognisance of the subject-matter of the appeal in respect of the first question in the application for leave to appeal set out at “2.-[A/]” above;
b) deem unconstitutional the rule contained in Article 24, no. 1 of Law no. 65/2003, of August 23, interpreted as meaning that the detainee who consented to his or her surrender may not appeal against the order that ratified the consent for surrender to the authority that issued the arrest warrant and – after validation of the guarantee provided – determined the execution of his or her surrender, for violation of Article 32, no. 1 of the Constitution of the Portuguese Republic; and, consequently,
c) order the case to be sent back to the Supreme Court of Justice, so that it may reform the contested decision in accordance with what was decided in b). “.
http://www.tribunalconstitucional.pt/tc/acordaos/20220540.html
III.3. Courts of Justice
III.4. Administrative and Tax Courts
IV. BRIEFS
IV.1. DOCTRINE
IV.1.1. Monographs and Periodic Publications
Guilherme da Fonseca Teixeira, Execução das Sentenças dos Tribunais Administrativos Contra a Administração Pública, Almedina, agosto 2022.
António Carlos dos Santos, Maria Eduarda Gonçalves e Maria Manuel Leitão Marques, Direito Económico, 8.ª Edição, Almedina, agosto 2022.
Rui Polónia, Direito das Sociedades Comerciais, Almedina, agosto 2022.
José Casalta Nabais, Estudos de Finanças Públicas e de Direito Financeiro, Almedina, agosto 2022.
Carolina Cunha, Manual de Letras e Livranças, 2.ª Edição, Almedina, agosto 2022.
Raquel Alexandra Brízida Castro, Justiça Constitucional em Tempos de Emergência, Almedina, agosto 2022.
Victor Hugo Ventura, Contrato de Trabalho do Jornalista, Almedina, agosto 2022.
Fábio André Duarte da Rocha, O Estatuto do Administrador de Facto Não Legitimado das Sociedades Comerciais, Almedina, agosto 2022.
Rui Pedro Correia Ramos Marques, O Crime de Fraude Fiscal no Ordenamento Jurídico Português – 30 anos depois, Almedina, agosto 2022.
Paula Rosado Pereira, Manual de IRS, 4.ª Edição, Almedina, agosto 2022.
Miguel Pestana de Vasconcelos, Direito Bancário, 4.ª Edição, Almedina, agosto 2022.
Paulo Marques e Joaquim Miranda Sarmento, Impostos: Porquê e para quê?, Almedina, agosto 2022.
Jorge Manuel Coutinho de Abreu, Curso de Direito Comercial – Volume I, 13.ª Edição, Almedina, agosto 2022.
Ana Cristina dos Santos Arromba Dinis, A Tributação Autónoma em Portugal – Uma Abordagem Jurisprudencial, Almedina, agosto 2022.
IV.1.2. Generic Guidelines & Cia
Circulated Letter no.: 35174, of 2022-08-10, by order of the Directorate of Excise Taxes Services and Vehicle Tax.
Subject: Contribution on packaging – Application procedures.
Circulated letter no.: 20244, of 2022-08-29, by order of the Deputy Director General of IR and International Relations.
Subject: Law no. 80/2021, of 29/11 – fiscally relevant disability in IRS and the procedures for review or reassessment of the degree of incapacity.
IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation
On August 11, the Council of Ministers approved the following: (i) the decree-law that strengthens the family allowance and changes the respective access brackets; (ii) the regulation of the Childhood Guarantee, a measure aimed at supporting families with children and young people under 18 years of age belonging to households in situations of extreme poverty; (iii) the draft law with a view to completing the transposition of Directive (EU) 2019/2161, of the European Parliament and of the Council, which aims to ensure better application and modernisation of Union rules on consumer protection; (iv) the decree-law simplifying the procedure of the incident of verification of liabilities and ranking of claims in insolvency proceedings, which, in turn, confers on the insolvency administrator the responsibility to, together with the list of recognised claims, submit a proposal for their ranking.
https://www.portugal.gov.pt/pt/gc23/governo/comunicado-de-conselho-de-ministros?i=504
The Council of Ministers approved, on August 25, the draft law modifying the Excise Duty Code, transposing into national law: (i) Council Directive (EU) 2019/2235, of 16 December 2019; (ii) Council Directive (EU) 2020/262, of 19 December 2019; and (iii) Council Directive (EU) 2020/1151, of 29 July 2020.
With the transposition, several technical amendments are also introduced to simplify the operation of these taxes and to strengthen the control mechanisms applicable in their context.
https://www.portugal.gov.pt/pt/gc23/governo/comunicado-de-conselho-de-ministros?i=505
IV.2.2. Industrial Property
Provisional statistical data for the months of January to July of 2022, regarding to Industrial Property Rights requests and concessions, were published on August 10. In particular, it should be noted that the concessions of inventions registered a decrease of 27.5% (137), compared to the same period in 2021 (189).
On the other hand, requests for inventions through the national route increased by 8.9% (528), compared to the requests submitted in 2021 (485).
All statistical reports, annual, half-yearly and monthly, on requests and grants of Industrial Property Rights are available at the IP Observatory.
https://inpi.justica.gov.pt/en-gb/INPI-News/Industrial-Property-Rights-January-to-July-2022
On August 12, INPI noted that the European Union Fund, implemented by the EUIPO together with the European Commission and aimed at financially supporting EU Small and Medium Enterprises in the protection of Industrial Property Rights, has already supported 499 Portuguese Small and Medium Enterprises (SME’s).
In this respect, between January and July of 2022, the European Union Fund has already received more than 15,000 applications from all EU Member States.
In particular, to this date, at least 521 applications have been made by national Small and Medium-sized Enterprises.
For information purposes, on the INPI website you can find an area exclusively dedicated to this initiative at https://inpi.justica.gov.pt/Fundo-PME.
https://inpi.justica.gov.pt/Noticias-do-INPI/Fundo-da-UE-ja-apoiou-meio-milhar-de-PME-nacionais
Finally, it should be noted that the European Union Intellectual Property Office (EUIPO) and the European Commission are again making a new fund available in 2022, with a simpler and more flexible financial regime, to support Small and Medium Enterprises.
This Fund will support up to 50% of the fees for national patent requests, up to a maximum of EUR 750 per beneficiary SME.
Cumulatively, SME’s can apply for a financial support of 75% of the expenses incurred for the filing of trademarks and designs registration within the EU or 50% of the expenses for international trade mark and design requests. Additionally, they can obtain a reimbursement of 90% of the expenses incurred with IP pre-screening services, up to a maximum of EUR 1,500.00 per company.
https://inpi.justica.gov.pt/Noticias-do-INPI/Novo-Fundo-europeu-de-apoio-as-PME-1
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