II. LEGISLATION

Ordinance No. 218/2022, of September 01: Undertakes the fourth amendment to Ordinance no. 182/2018, of June 22, which regulates the working conditions of administrative employees not covered by specific collective regulations.

https://files.dre.pt/1s/2022/09/16900/0000600010.pdf

Resolution of the Council of Ministers No. 74-A/2022, of September 06: Establishes exceptional measures to support families in order to mitigate the effects of inflation.

https://files.dre.pt/1s/2022/09/17201/0000900010.pdf

Decree-Law No. 57-B/2022, of September 06: Allows final customers with annual consumption less than or equal to 10 000 m3 to return to the regulated tariff regime for the sale of natural gas.

https://files.dre.pt/1s/2022/09/17201/0000200003.pdf

Decree-Law No. 57-C/2022, of September 06: Establishes exceptional support measures for families to mitigate the effects of inflation.

https://files.dre.pt/1s/2022/09/17201/0000400008.pdf

Ordinance No. 223/2022, of September 06: Establishes the limit of the reference income provided for in paragraph c) of article 4.º of Regulatory Decree no. 3/2022, of August 19.

https://files.dre.pt/1s/2022/09/17200/0000300003.pdf

Ordinance No. 224/2022, of September 06: Updates the amounts of the family allowance for children and youth, amending Ordinance no. 276/2019, of August 28.

https://files.dre.pt/1s/2022/09/17200/0000400005.pdf

Decree-Law No. 58/2022, of September 08: Amends the General Regulations of Prison Establishments.

https://files.dre.pt/1s/2022/09/17400/0000300006.pdf

Ordinance No. 235/2022, of September 12: Fourth amendment to Ordinance no. 77-B/2014, of April 1, which sets the amount of security charges to be levied at ANA, S.A. network airports and other aerodromes and airports.

https://files.dre.pt/1s/2022/09/17600/0013400135.pdf

Ordinance No. 242/2022, of September 23: Approves the percentages of the exchange rate correction mechanism created by Decree-Law no. 35-B/2016, of June 30, for the 1st semester of 2022.

https://files.dre.pt/1s/2022/09/18500/0002400025.pdf

Ordinance No. 243/2022, of September 23: Amends Ordinance no. 338/2015, of October 8, which approves the invoice, receipt and invoice-receipt models, as well as the respective instructions for completion, according with the wording of article 115 of the IRS Code and article 29 of the VAT Code.

https://files.dre.pt/1s/2022/09/18500/0002600050.pdf

Ordinance No. 244-A/2022, of September 26: Regulates the extraordinary support to income and social benefit holders created by Decree-Law no. 57-C/2022, of September 6.

https://files.dre.pt/1s/2022/09/18601/0000200004.pdf

Directive No. 21/2022, of September 26: Approves the update of the energy tariff for the electricity sector to be in force since October 2022.

https://files.dre.pt/2s/2022/09/186000000/0014000155.pdf

Resolution of the Council of Ministers No. 82/2022, of September 27: Proceed to the definition of preventive measures to cope with the current situation and possible future disruptions, always with the purpose of ensuring the security of energy supply.

https://files.dre.pt/1s/2022/09/18700/0000600034.pdf

Decree-Law No. 64/2022, of September 27: Amends the Professionals Statute of the Cultural Area.

https://files.dre.pt/1s/2022/09/18700/0000300005.pdf

Regulatory Decree No. 4/2022, of September 30: Amends the regulation of the legal regime concerning to the entry, stay, exit and expulsion of foreign citizens of the national territory.

https://files.dre.pt/1s/2022/09/19000/0002800097.pdf

Ordinance No. 249-A/2022, of September 30: Suspends the updating of the addition rate on CO2 emissions.

https://files.dre.pt/1s/2022/09/19002/0000200002.pdf

Ordinance No. 249-B/2022, of September 30: Undertakes the temporary updating of the ISP unit rate applicable to coloured and marked gas oil.

https://files.dre.pt/1s/2022/09/19002/0000300003.pdf

Decree-Law No. 66-A/2022, of September 30: Determines the cessation of validity of decree-laws published in the context of the pandemic disease COVID-19.

https://files.dre.pt/1s/2022/09/19001/0000200009.pdf

III.2. Constitutional Court

III.3.  Courts of Justice

Judgment of the Supreme Court of Justice, of September 7, Case No. 16670/17.8T8PRT.P1. S1: Double conforming. Seasonal activity. Abdicative remission.

Summary:

“I- As the dissenting vote must be accompanied by a succinct justification of the reasons for the divergence, even when such divergence concerns the decision and not only the reasoning, but no partial double conformity should also be considered to exist in relation to issues that are not entirely autonomous from the one expressly mentioned in the dissenting vote.

II- A company that engages in river cruises for about ten months a year cannot invoke seasonal activity to justify a fixed-term contract of a chambermaid, outside any peak of activity, such hiring being its permanent and not temporary need.

III- The remission by the employee of rights arising from the violation of mandatory legal norms by the employer, as is the case with rights resulting from an unlawful dismissal, presupposes the employee’s knowledge of the existence of said violation and its legal consequences.”.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/51ee72fd4d7207eb802588b7003f2411?OpenDocument

Judgment of the Supreme Court of Justice, of September 7, Case No. 413/18.1T8PNF.P1. S1: Work Accidents. Working hours. Working time.

Summary:

“I. To be considered a work accident, pursuant to article 8 et seq. of the LAT, it is necessary to verify cumulatively the spatial element, that it occurs at the workplace, and the temporal element, that it occurs during working hours and that there also is a causal link between the unfortunate event and the injuries suffered by the employee.

II. The fact that the accident occurred when the Plaintiff was at workplace, performing complementary functions to the activity carried out by his employer and determined by the latter, susceptible of bringing “economic profit”, on a Saturday, a day on which the employer was not working, is, for all due purposes, irrelevant.”.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/61da08dc263f825f802588b7004421fa?OpenDocument

Judgment of the Supreme Court of Justice, of September 15, Case No. 1195/13.9TBEPS.G1.S1: Nullity of judgment. Omission of pronouncement. Caducity of the action. Sale of defective item. Movable property. Property damage. Contractual liability. Limitation period. Subsequent liquidation of damages.

Summary:

“I. The short limitation periods provided for in Article 917 of the Civil Code apply to the claim for compensation for property damage inherent to the defect, related to damages that have not obtained compensation through the exercise of the right to reparation.

II. They no longer apply to claims for property damages resulting from the defect (collateral or sequential), for which the general regime of limitation applies.

III. The deterioration of the carpentry, furniture, textiles and electrical installation as a result of the leakage of water into the building, in 2016, caused by the lack of watertightness of the roof, already reported in 2012, constitutes damage as a result of the defect, and not inherent to it, compensable under the general terms of contractual liability.”.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/4f6cf73f908b4e07802588bf0045c1e1?OpenDocument

Judgment of the Supreme Court of Justice, of September 22, Case No. 37/21.6SXLSB-A.S1: Appeal for jurisprudence fixation. Statements for future memory. Opposition of judgments. Refusal to testify.

Summary:

“I- In the case of the grounding judgment, it is verified that although there were statements for future memory, the offended party was summoned to the trial hearing, and used the prerogative not to give statements, which was accepted by the court, as verified by the reasoning of the sentence itself and also the judgment of the Lisbon Appeal Court of 15.09.2021; in the case of the appealed decision, the victim, the defendant’s daughter, did not refuse to testify, nor did she use the prerogative not to testify (regardless of the discussion that may arise as to whether or not she could make use of this prerogative, given that she had previously made statements for future memory, or whether it should rather be understood that this prerogative is unwaivable and, therefore, whoever holds this faculty should be warned that they may refuse to testify, always and at any time that they have to make statements or testify).

II- The holder of a legal privilege (e.g. under art. 134 of the Criminal Procedure Code) must express the right to refuse to testify clearly and unequivocally, and to this end must be warned in advance by the person taking the testimony, under penalty of being declared null and void (see art. 134, no. 2 of the Criminal Procedure Code). Therefore, in these situations, everything should be made clear so that no doubts remain as to the exercise of the right of refusal enshrined in article 134, no. 2 of the Criminal Procedure Code by the respective holder or as to any incidents that may have arisen in this regard, which will have to be decided at the appropriate time.

III- As can be seen in the contested decision, the minutes state that “When asked if she wanted to make a statement on behalf of minor BB, she said “I don’t want to say anything, I’ve already said everything I have to say, the sooner this is over the better”, which (considering that she had previously made a statement for future memory and that she had only been summoned to the trial hearing to provide clarifications exceptionally), one can only conclude that she had made a statement, The fragility of these victims is well known, especially when they are minors and are subjected to several interrogations that force them to remember, once again, everything that they have been through, which is not easy to experience and to overcome).

IV- Therefore, as there is no identity, similarity or equivalence between the situations analyzed in the appealed appellate decision and the grounding decision, the different/opposed legal solutions that were given are justified and, insofar as it is not possible to establish a comparison between the two situations described  in the judgment appealed against on the one hand and in the judgment on which the appeal is based on the other, it is impossible to conclude that the substantive or substantive requirement that opposing decisions on the same point of law be verified, which leads to the rejection of this extraordinary appeal.”.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/8dca8e49ae927403802588c600354f1c?OpenDocument

Judgment of the Lisbon Court of Appeal, of September 8, Case No. 26151/19.0T8LSB.L1-8: Lease contract. Payment of rents. Exception of non-compliance. Reduction of rent.

Summary:

“1 -Article 1040 of the Civil Code constitutes a manifestation of the exception of non-compliance in the scope of the lease.

2 – If, despite the fact that the leased premises no longer have conditions worthy of habitability, the tenant continues to live there, there is no deprivation of enjoyment, but only a reduction, and, therefore, the tenant cannot refuse to pay the rent, but only demand a reduction of the rent in proportion to the reduction of the enjoyment of the leased premises.

3 – We cannot deduce from the mere handing over of the keys that R. wanted to terminate the lease, oppose its automatic renewal or terminate it.

4 – Tenants with unpaid rentals trust that the return of the leased premises will be in accordance with the landlord’s wishes and only this trust explains R.’s return of the leased premises without written communication, without presentation of a justification and without prior notice.

5 – If the landlord is not entitled to claim compensation for delay when he terminates the lease on the grounds of non-payment of rent, he may not claim compensation for delay when, before notifying the termination of the lease or proposing eviction proceedings, he obtains the return of the leased premises on the ground of non-payment of rent.”.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/30d1697719a7f5a3802588c300326def?OpenDocument

Judgment of the Lisbon Court of Appeal, of September 15, Case No. 25937/10.5T2SNT.L1-2: Interest settlement. Injunction. 

Summary:

“I. The executed has a period of 10 days to complain to the enforcement judge about the enforcement agent’s acts (article 149 of the Civil Procedure Code).

II. However, the judge may consider a complaint filed extemporaneously by the executed against the act of liquidation of liability towards the executed made by the enforcement agent, if this complaint concerns a matter of ex officio knowledge.

III. The judge may consider of his own motion a liquidation that exceeds the limits set out in the enforcement order (articles 726 no. 3 and 734 no. 1 of the Civil Procedure Code).

IV. The ex officio cognizance referred to in III may occur until the first act of transfer of seized assets.

V. The time limitation referred to in IV aims to protect rights acquired in the proceedings by bona fide third parties, namely creditors of the executed, purchasers of assets or preferential purchasers.

VI. Partial rejection of the execution is admissible if, as occurred in the case at hand, at the date of rejection only money had been handed over to the executed which moreover will not be affected by such rejection.

VII. In the execution of an injunction, the creditor may claim payment of default interest falling due, calculated at the contractual interest rate (and not only at the legal interest rate).”.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/3274d3f397c10350802588c400509368?OpenDocument

Judgment of the Porto Court of Appeal, of September 7, Case No. 877/22.9JAPRT-A.P1: Conservative traffic and location data. Unconstitutionality. European law conformity interpretation.

Summary:

“I – With the entry into force of Law no. 32/2008, of 17.07, the criminal procedural regime provided for in articles 187 to 189 of the Criminal Procedure Code was revoked with regard to retained data.

II – The regime of articles 187 to 189 of the Criminal Procedure Code is not applicable to the data covered by Law no. 32/2008. This does not prevent the declaration of unconstitutionality, with mandatory general force, of the rules contained in articles 4, 6 and 9 of the aforementioned Law.

III – Even if this were not the case, allowing access to traffic and location data on the basis of those provisions would clearly infringe European law and the interpretation made of it by the TJUE’s jurisprudence, constituting a more intense and disproportionate attack on the fundamental rights to privacy and the protection of personal data provided for in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (CDFUE) than Directive 2006/24/CE, which has since been declared invalid.

IV – In effect, the regime of articles 187 and 189 of the Criminal Procedure Code does not even obey the impositions of the Directive, contrary to what happened with Law no. 32/2008, which even went beyond what was imposed regarding norms that guarantee the security of stored data and criteria that regulate access to stored data.”.

http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/991a7c312e05ede8802588bd0055472a?OpenDocument

III.4. Administrative and Tax Courts

Judgment of the Supreme Administrative Court, of September 7, Case No. 01845/09.1BELRS 0325/15: Capital gains. Merger of companies by incorporation. Reinvestment. Tax benefits. Net creation of jobs.

Summary:

“I – It is in art.17 et seq. of the C.I.R.C. that the general rules for determining taxable income are enshrined, specifying in art.23 which costs (costs or losses, in the words of the then legislator – year 2005) that, as such, must be considered by the law.

II – Capital gains are occasional capital gains, with no direct relation to the productive activity, thus not being considered as income but as an asset increase. The capital gain must be defined, in principle, by the difference between the realization value and the acquisition value, especially when the taxable event is described as an onerous disposal, thus being subject to the realization principle. The POC defined the accounting concept of capital gain as the gain resulting from the disposal of tangible, intangible or financial fixed assets shown in account 794 – Gains in immobilizations.

III – A merger is a legal instrument that allows the reallocation of assets between companies within the scope of corporate reorganisations. The same merger is a legal transaction by which two or more companies, even if of a different type, are merged into one single company. This process may be carried out in three different ways, one of them consisting in the incorporation, by a company (incorporating), of another company (merged/incorporated) of whose participations the former is the sole owner. In this type of merger (merger by incorporation), the merged company is extinguished, and its assets are integrated into the incorporating company (according Article 97 and following, of the C.S.C.; Article 67 and following, of the C.I.R.C., in force in 2005).

IV – The person applying the Law should bear in mind the tax neutrality regime for mergers and demergers, in force in 2005 (which is based on the idea of continuity or succession in the exercise of activity by the beneficiary company and by virtue of the restructuring operation, thus not giving rise to any taxation at the time of its implementation), as provided for in Articles 67 to 72 of the C.I.R.C. (according current Articles 73 to 78 of the same law).

V – This is strengthened by Article 68(6) of the C.I.R.C. (according current Article 74(6)), by providing that when the beneficiary company has a holding in the capital of the merged or split-up companies, any capital gains or losses resulting from the annulment of the shares held in those companies as a result of the merger or split-up will not affect the formation of the capital gains.

VI – In order to avoid the application of the rules relating to the tax neutrality regime applicable to mergers and demergers, it was incumbent on the Tax Authorities to demonstrate that the main purpose or one of the main goals of the operation in question was tax evasion, as set out in Article 67(10) of the C.I.R.C.  in force in 2005.

VII – The tax benefit provided for in art. 17 of the E.B.F., in the version in force until 31/12/2002, granted the employer, for IRC purposes, the consideration of the monthly charges arising from the new job, plus an increase of 50%, up to a maximum of 14 times the highest national minimum wage.

VIII – With the wording given to Article 17 of the E.B.F., by Law 32-B/2002, of 30/12, the rules of hermeneutics of tax law do not allow the meaning to be drawn from the identified rule that, in cases in which employment contracts that are eligible under the mentioned article cease or begin during the tax period, the maximum limit of the increase provided for in no. 1 should be restricted in proportion to how long the contracts have been in force.”.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/f4dcd90d50e04073802588ba0055c57c?OpenDocument&ExpandSection=1#_Section1

Judgment of the Supreme Administrative Court, of 8 September, Case No. 0939/15.9BEPRT 0620/17: Public employment. Public employment contract. Fixed-term employment contract. Abuse of fixed-term contracting. Access. Civil service. Public competition. Equality principle.

Summary:

“I – The sanctioning regime established in article 92(3) of the Civil Service Employment Contract Regime (Regime do Contrato de Trabalho em Funções Públicas), approved by Law 59/2008, of 11 September, does not effectively prevent or repress abuses arising from the signing of successive fixed-term employment contracts, beyond the maximum term or number of renewals legally allowed.

II – The Portuguese domestic law does not provide for other measures to prevent such abuses, paragraph 2 of article 92 of the same law, which absolutely prohibits the conversion of fixed-term employment contracts entered by public bodies into employment contracts of indefinite duration, breaches European Union Law, specifically clause 5 of the Framework Agreement Annexed to Council Directive 1999/70/EC of 28 June 1999, concerning the ETUC, UNICE and CEEP Framework Agreement.

III – The conversion of a fixed-term contract into a contract of indefinite duration, by direct application of subparagraph b) of paragraph 2 of article 5 of said Directive 1999/70/EC, does not constitute an arbitrary restriction of the Equality Principle in access to the public service, and does not violate the provisions of paragraph 2 of article 47 of the Portuguese Constitution (Constituição República Portuguesa).”.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/2a2def43210fa945802588bd00394205?OpenDocument

Judgment of the Supreme Administrative Court, of 21 September, Case No. 0150/22.2BEPNF: Social Security contributions. Prescription. Citation. Lasting effect. Concrete review of constitutionality.

Summary:

“I – Regarding Social Security debts (contributions or subscriptions), and the respective late-payment interest, the law prescription was ten years (article 14 of Decree-Law 103/80 of 9/3; article 53, no. 2), being nowadays five years. It is counted from the date on which the same obligation should have been fulfilled. The law prescription is interrupted by any administrative action taken, with the knowledge of the party responsible for payment, which leads to the payment or collection of the debt, namely the opening of a tax enforcement procedure (according, Article 63, nos. 2 and 3 of Law 17/2000, of 8/8; Article 49, nos. 1 and 2 of Law 32/2002, of 20/12; Article 60 of Law 4/2007, of 16/1; Article 187 of the Social Security Welfare Contributions Code (Código dos Regimes Contributivos do Sistema Previdencial de Segurança Social), approved by Law 110/2009, of 16/09).

II – The law prescription for debts owed to the Social Security System is subsidiarily applicable to the regime provided in the L.G.T. in accordance with the provisions of art. 3, al. a) of the present Social Security Welfare Contributions Code.

III – The tax laws provide for facts to which interruptive effects of the tax liability are attributed, and thus there is no need to resort to Civil Code rules as regards the determination of interruptive facts. However, the effects of the interruption of the prescription are not completely regulated and, as such, the Civil Code must be applied subsidiarily.

IV – With these assumptions, the application of the regime foreseen in the article 327, no.1, of the Civil Code (applicable normative “ex vi” of article 2, d) of the L.G.T.), in view of the interruptive act that is embodied in the summons in tax enforcement proceedings, which has a lasting effect as the new limitation period does not start to run until the decision terminating the proceedings has become final and unappealable.

V – The case-law of this Court is uniform and will conclude that the application, in the tax field, of the rule laid down in the aforementioned article 327(1) of the Civil Code, with regard to recognition of the lasting effect of the writ of summons in a tax enforcement action, does not suffer by any unconstitutionality, particularly for infringing the principles of legality, legal certainty and the protection of taxpayers’ trust or guarantees. Recent case-law of the Constitutional Court (Tribunal Constitucional) is along the same lines.”.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/a244c82730dbd9f9802588ca00305df3?OpenDocument