I. EDITORIAL – THE COVID-19 DISEASE PANDEMIC; LAW NO. 19/2022, OF OCTOBER 21
The month of October was characterised, in legislative terms, by the publication of theResolution of the Council of Ministers no. 96/2022, of October 24, which determines the termination of validity of resolutions of the Council of Ministers published in the context of the pandemic disease COVID-19 and by the publication of the Law no. 19/2022, of October 21, which determines the rent updating coefficient for 2023, creates an extraordinary support for renting, reduces VAT on electricity supply, establishes a transitory regime for updating pensions, establishes a regime for the redemption of savings plans and determines the unseizability of family supports.
Also worthy of note at the legislative level are:
- The Decree-Law no. 67/2022, of October 4, which establishes exceptional support measures for companies and the social economy to mitigate the effects of inflation;
- The Ordinance no. 253/2022, of October 20, which updates the currency devaluation coefficients to be applied to assets and rights sold during the year 2022;
- The Dispatch no. 12431-A/2022, of October 24, which extends Dispatch no. 5793-A/2020, of May 26, on the implementation of a simplified procedure for processing applications for granting a residence permit.
In the scope of case law, it is worth mentioning the Judgment of the Constitutional Court no. 678/2022, of October 20, Case no. 203/21, which decided: “a)To declare unconstitutional the normative dimension extracted from subparagraphs c) and d) of paragraph 1 and paragraph 6 of article 43.º of Decree no. 2-B/2020, in the part in which they punish disobedience to legitimate orders from the competent authorities, when practised in violation of the provisions of the respective decree, with aggravated punishment in the minimum and maximum limits, for being in contradiction with the provisions of paragraph 7 of article 19.º and subparagraph c) of paragraph 1 of article 165.º of the Constituição da República Portuguesa. b) To dismiss the mandatory appeal filed by the Ministério Público.”.
Finally, regarding Miscellaneous, it is worth noting the approval of the Proposal of Law for the State Budget for 2023, as well as the Proposal of Law for the Great Options for 2022-2026.
Ordinance no. 249-C/2022, of October 3: Review and setting of the values of the tax rates on oil and energy products.
Decree-Law no. 67/2022, of October 4: Establishes exceptional support measures for companies and the social economy to mitigate the effects of inflation.
Resolution of the Council of Ministers no. 87/2022, of October 04: Establishes measures to support companies in face of the increase in energy prices.
Ordinance no. 252/2022, of October 6: Extends the deadline set out in article 1 of Ordinance no. 170/2022, of July 5.
Resolution of the Assembly of the Republic no. 71/2022, of October 19: Budget of the Assembly of the Republic for 2023.
Decree-Law no. 72/2022, of October 19: Amends the exceptional measures for the implementation of projects and initiatives for the production and storage of energy from renewable sources.
Dispatch no. 12230/2022, of October 19: Approves the Regulation of the 2nd Phase of the Extraordinary and Exceptional Support to Domestic Consumers Benefiting from the Social Tariff for Electricity or Minimum Social Benefits in the Purchase of Bottled Liquefied Petroleum Gas.
Ordinance no. 253/2022, of October 20: Updates the currency devaluation coefficients to be applied to assets and rights sold during the year 2022.
Directive no. 22/2022, of October 20: Implementation of Dispatch no. 9799-B/2022, of August 8, establishing the procedure for prior validation of invoices.
Law no. 19/2022, of October 21: Determines the rent updating coefficient for 2023, creates an extraordinary support for renting, reduces VAT on electricity supply, establishes a transitory regime for updating pensions, establishes a regime for the redemption of savings plans and determines the unseizability of family supports.
Rectification Declaration no. 27/2022, of October 21: Rectifies Law no. 18/2022, of August 25, which alters the legal regime for the entry, residence, exit and expulsion of foreigners.
Resolution of the Council of Ministers no. 96/2022, of October 24: Determines the termination of validity of resolutions of the Council of Ministers published in the context of the pandemic disease COVID-19.
Ordinance no. 254/2022, of October 24: Establishes an exceptional regime regarding the availability in the national market of rapid antigen tests (TRAg) intended, by their manufacturers, to be performed on samples from the internal anterior nasal area (nasal cavities) as an in vitro diagnostic device for self-diagnosis.
Directive no. 2/2022, of October 24: Minor’s right to the free exercise of the right of association.
Dispatch no. 12431-A/2022, of October 24: Extends Dispatch no. 5793-A/2020, of May 26, on the implementation of a simplified procedure for processing applications for granting a residence permit.
Dispatch no. 12461/2022, of October 25: Establishes the social tariff for the supply of electricity, applicable from 1 January 2023.
Rectification Declaration no. 903-A/2022, of October 26: Rectifies Dispatch no. 12230/2022, of October 19, which approves the Regulation of the 2nd Phase of Extraordinary and Exceptional Support for Domestic Consumers Benefiting from the Social Tariff for Electricity or Minimum Social Benefits in the Purchase of Bottled Liquefied Petroleum Gas.
Rectification Declaration no. 28/2022, of October 28: Rectifies Decree-Law no. 66-A/2022, of September 30, which determines the termination of validity of decree-laws published, in the context of the pandemic disease COVID-19.
Resolution of the Assembly of the Republic no. 73/2022, of October 31: Recommends to the Government greater supervision of fixed-term employment contracts.
Resolution of the Assembly of the Republic no. 74/2022, of October 31: Recommends the Government to evaluate the legal regime of higher education institutions and review its funding model.
Decree-Law no. 75/2022, of October 31: Ensures the implementation in the national legal order of Regulation (EU) no. 2019/1021, on persistent organic pollutants.
III.1. Court of Justice of the European Union
Judgment of the Court of Justice (Fourth Chamber), of October 6, Case C‑250/21: Reference for a preliminary ruling. Taxation. Value added tax (VAT). Directive 2006/112/EC. Supply of services for consideration. Exemptions. Article 135.º/1, b). Granting of credit. Sub-participation agreement.
“The article 135.º/1, b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, must be interpreted as meaning that the services provided by a sub-participant under a sub-participation agreement, consisting of making available to the originator a financial contribution in exchange for payment of the proceeds from the receivables specified in that agreement, those receivables remaining in the assets of the originator, fall within the concept of ‘granting of credit’ within the meaning of that provision.”.
Judgment of the Court of Justice (Eighth Chamber), of October 6, Joined Cases C‑433/21 and C‑434/21: References for a preliminary ruling. Direct taxation. Freedom of establishment. Corporate income tax. Measures to prevent tax avoidance by shell companies. Determination of taxable income on the basis of presumed minimum income. Exclusion from the scope of those measures of companies and entities listed on national regulated markets.
“Article 49.º TFEU must be interpreted as not precluding national legislation which restricts the ground for exclusion from the scope of the measures to prevent tax avoidance by shell companies to companies whose securities are traded on national regulated markets, excluding from the scope of that ground for exclusion other companies, whether national or foreign, whose securities are not traded on national regulated markets but which are controlled by companies and entities listed on foreign regulated markets.”.
Judgment of the Court of Justice (Eighth Chamber), of October 6, Case C‑436/21: Reference for a preliminary ruling. Air transport. Regulation (EC) No 261/2004. Article 3.º/1, a). Scope. Article 2.º f) to h). Concept of ‘ticket’. Concept of ‘reservation’. Concept of ‘connecting flight’. Reservation through a travel agency. Article 7.º. Compensation for air passengers in the event of a long delay to a flight. Transport operation consisting of several flights operated by separate operating air carriers. Connecting flight departing from an airport located in a Member State with a stop in Switzerland and final destination in a third country.
“The article 2.º, h) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 must be interpreted as meaning that the concept of a ‘connecting flight’ covers a transport operation made up of a number of flights operated by separate operating air carriers which do not have a specific legal relationship, where those flights have been combined by a travel agency which has charged an overall price and issued a single ticket for that operation, with the result that a passenger departing from an airport located in the territory of a Member State who suffers a long delay to the arrival at the destination of the last flight may rely on the right to compensation pursuant to Article 7.º of that regulation.”.
Judgment of the Court of Justice (Fourth Chamber), of October 27, Case C‑129/21: Reference for a preliminary ruling. Processing of personal data and protection of privacy in the electronic communications sector. Directive 2002/58/EC. Article 12.º. Public directories and directory enquiry services. Subscriber consent. Obligations of the directory provider and directory enquiry services. Regulation (EU) 2016/679. Article 17.º. Right to erasure of data (‘right to be forgotten’). Article 5.º/2. Article 24.º. Information obligations and responsibility of the controller.
“1) The article 12.º/2 of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in conjunction with point (f) of the second paragraph of Article 2.º of that directive and Article 95.º of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Regulation (EU) 2016/679, is to be interpreted as meaning that the directive does not apply to the processing of personal data in the electronic communications sector. Article 8 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons regarding the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as meaning that: ‘consent’ within the meaning of Article 4.º/11 of that regulation is required. Article 4.º/11 of that regulation requires the subscriber of a telephone service operator for the personal data of that subscriber to appear in public telephone directories and directory enquiry services published by providers other than that operator, such consent possibly being given either to that operator or to one of its providers.
2) The article 17.º of Regulation 2016/679 must be interpreted as meaning that: the request of a subscriber seeking the deletion of his personal data from public telephone directories and directory enquiry services constitutes an exercise of the ‘right to erasure’ within the meaning of that article.
3) The article 5.º/2 and Article 24.º of Regulation 2016/679 must be interpreted as meaning that a national supervisory authority may require the directory provider, as the controller, to take appropriate technical and organisational measures to inform third parties responsible for processing, namely the telephone service operator which communicated to it the personal data of its subscriber and the other providers of directories and public telephone directory enquiry services to which it has provided those data, of the withdrawal of that subscriber’s consent.
4) The article 17.º/2 of Regulation 2016/679 must be interpreted as not precluding a national supervisory authority from ordering a provider of public directories and telephone directory enquiry services, which has been asked by the subscriber of a telephone service operator to stop publishing his personal data, to take ‘such steps as are reasonable’, within the meaning of that provision, to inform search engine providers of that request for erasure of the data.“.
III.2. Constitutional Court
Judgment of the Constitutional Court no. 678/2022, of October 20, Case no. 203/21.
“For the foregoing considerations, it is decided:
a) To declare unconstitutional the normative dimension extracted from subparagraphs c) and d) of paragraph 1 and paragraph 6 of article 43.º of Decree no. 2-B/2020, in the part in which they punish disobedience to legitimate orders from the competent authorities, when practised in violation of the provisions of the respective decree, with aggravated punishment in the minimum and maximum limits, for being in contradiction with the provisions of paragraph 7 of article 19.º and subparagraph c) of paragraph 1 of article 165.º of the Constituição da República Portuguesa.
b) To dismiss the mandatory appeal filed by the Ministério Público.”.
III.3. Judicial Courts
Judgment of the Supreme Court of Justice, of October 6, Case no. 109/18.4JASTB.S1: Concurrence of Infractions. Supervenient Knowledge. Legal Cumulation. Single Penalty. Suspended Penalty. Cumulation by Dragging.
“I – Regarding to the plurality of crimes committed successively by the accused, it is important to verify if all of them took place before the sentence becomed final and unappealable by any of them or, if not, if there is room for successive legal cumulus or/and fulfiments of autonomous penalties, because of the possibility of not verifying the conditions of the supervenient contest, referred to in paragraph 1 of article 78.º, and paragraph 1 of article 77.º, of the CP.
II- It is the final and unappealable decision of the first conviction that establishes the moment from which the supervening contest of penalties is considered to exist, and all individual penalties that refer to facts that took place before the date of the final and unappealable decision of the first conviction must then be included in a single penaltie for the purposes of legal cumulus (see the judgement of the STJ no. 9/2016, in DR I of 9.06.2016).
III- In turn, crimes that have been committed after this first conviction has becomed final and unappealable, depending on the cases, may be included in other (or others) legal cumulus, to be punished with other(s) single penaltie(s), as long as the same conditions are verified, or, if they are not, they will have to be excluded and remain independent.
IV- It has been uniformly decided by the STJ that there is no obstacle to legal cumulus between effective prison penalties and prison penalties, whose execution has been suspended.
V- The case law of the STJ has also uniformly ruled out the so-called “cumulus by dragging.”.
Judgment of the Supreme Court of Justice, of October 12, Case no. 766/07.7TTLSB.L2.S1: Dismissal with Just Cause. Labour Credit. Prescription. Interruption of Prescription. Citation. Notification.
“I – Credits arising from an employment contract prescribes after one year from the day following that on which the employment contract ceased.
II – The prescription is interrupted by citation or judicial notification of any act that, directly or indirectly, expresses the intention to exercise the right, regardless of the proceedings to which the act belongs and even if the court has no competence.
III – The fact that the act interrupting the prescription has been carried out in another proceeding shall not preclude interruption of the prescription, as long as, naturally, the actions have been initiated by the holder of the right that is intended to be enforced and against the same defendant. The point is that in both actions the same right is discussed.
IV – Also the judicial notification interrupts the prescription as long as the claimant alleges the specific right on which he intends to interrupt the prescription, not being satisfied with generalities.”.
Judgment of the Supreme Court of Justice, of October 12, Case no. 423/20.9T8BRR.L1.S1: Worker with Family Responsibilities. Attribution of Flexible Schedule. Weekly Rest.
“The text of articles 56.º and 57.º of the Código do Trabalho (Labour Code) does not exclude the inclusion of weekly rest, including saturday and sunday, in the flexible work schedule regime, at the request of the employee with family responsibilities.”.
Judgment of the Lisbon Court of Appeal, of October 12, Case no. 4513/09.0T2SNT-B-4: Suicide. Work Accident. Causal Connection.
“1–Where there is knowledge of the death of an injured employee, an investigation must be carried out to determine whether the death is a direct or indirect result of the accident.
2–The death of an injured employee by suicide, in order to be considered the cause of the accident, presupposes the allegation and proof of a threefold causal connection – the causal connection between the accident itself and the serious physical and psychological injuries or reduction in the employee’s professional capacities, the relation between these and a depressive psychological situation and, lastly, the causal relation between this and the act of suicide.
3-Death occurring as a result of suicide 27 years after the damaging accident at work, which resulted in serious injuries that completely incapacitated the injured person, and it being proved that during that period of time the injured person suffered, as a result, various infections that weakened him, presenting on the date of death a depressed syndrome and other pathologies for which no causal connection was established with the injuries arising from the accident, and where it has not been proved that this syndrome motivated the act of suicide, no compensation is due under the law on accidents at work.”.
Judgment of the Lisbon Court of Appeal, of October 12, Case no. 28643/20.9YIPRT.L1-8: Injunction Proceedings. Commercial Transactions. Counterclaim. Admissibility.
“1.–There is no material reason to establish differentiations between the types of process, with regard to the deduction of a counterclaim request.
2.–The thesis of inadmissibility of the counterclaim creates an inequality between petitioners of pecuniary values resulting from commercial transactions, without reasons of material justice justifying this inequality.”.
Judgment of the Lisbon Court of Appeal, of October 13, Case no. 12238/20.0T8LSB-A.L1-8: Accountability Action. Counterclaim. Compensation. Admissibility.
“I– The special nature of the accountability action represents an obstacle to the deduction of counterclaims, considering the particular rules of instruction and trial of accounts, enshrined in Article 945.º, of the NCPC.
II– The special accountability procedure is not adequate to discuss the credit compensation since the plaintiff credit is only determined at the end.”.
Judgment of the Porto Court of Appeal, of October 12, Case no. 275/22.4TXPRT-A.P1: Temporary Cancellation of Criminal Records. Legal Person.
“The institute of the temporary cancellation of criminal records is not applicable to legal persons.”.
III.4. Administrative and Tax Courts
Judgment of the Supreme Administrative Court, of October 12, Case no. 03110/09.5BCLSB: Anti Abuse Clause. Discretion.
“I – The determination of the existence or not of valid economic reasons for a corporate transaction does not constitute an area of valuation proper of the AT that cannot be scrutinised by the judiciary; it is instead a concept originary of European law, in whose analysis and densification we must observe the TJUE case law, in particular the guidelines of the Foggia (C-126/10) and Euro Park (C-14/16) judgments.
II – The mere inclusion of a tax benefit, i.e., the obtention of a tax advantage, is not sufficient to classify a certain corporate transaction as devoid of valid economic reasons, it is necessary that the AT demonstrates that that is the only purpose of that transaction and that the legislator, using the power granted by European law in such cases, adopted measures to fight the erosion of the tax basis, which include the disregard of that type of transactions, whose conditions are fulfiled in the particular case.”.
Judgment of the Supreme Administrative Court, of October 12, Case no. 0218/13.6BEAVR: Dissolution of a Legal Entity. Official Liquidation.
“I – A dissolved company continues to be the subject of the tax legal relation in regard to the tax events occurred in the time period before the respective dissolution, even if the law designates other persons responsible for the payment of the taxes that will be liquidated in regard to that period.
II – Nothing in the law prevents the AT from performing a tax liquidation act after the taxpayer’s legal obligation to pay the tax has expired, even if the payment is to be demanded from someone else, whom the law designates as responsible for the payment.”.
Judgment of the Supreme Administrative Court, of October 12, Case no. 0840/16.9BEAVR: Municipal Tax on the Onerous Transmission of Real Estate. Rent.
“I – The article 1025.º, of the Civil Code, establishes a maximum duration of thirty years for the lease contract, which, when the object of the lease is real estate property, is designated as rent (cfr. article 1023.º, of the Civil Code).
II – Under the terms of subparagraph of the paragraph 2 of article 2.º, of the C.I.M.T., as was already the case with the previous Sisa regime (cf. article 2, §1, 4º. of the C.Sisa), the legislator fictionalises as a taxable transmission the situation in which a rent/subrent of a real estate property is celebrated for more than 30 years.
III – The aforementioned provision must be interpreted as meaning that the legislator fictionalises as a taxable transfer the situation in which a rent/subrent of real estate property is celebrated for more than thirty years, and only in this case does the transmission, for the purposes of the I.M.T., occur on the date of the celebration of the contract, and the tax on the transmission will also be levied on that date. However, the same will not happen in cases where the rent is celebrated for a period not exceeding thirty years, despite the possibility of contractual prorogation, by agreement of the contractual parties and occurring during the period of validity of the contract.”.
Judgment of the Supreme Administrative Court, of October 12, Case no. 0896/15.1BEAVR: VAT. Exemption. Promoter. Shows.
“I – The internal exemptions provided for in the VAT Directive pursue a variety of purposes, being motivated, in particular, by economic and social considerations and practicability reasons.
II – Although the Court of Justice of the European Union, in the matter of VAT and, particularly as regards to the provisions of exemption, consistently rules out the possibility of a national judge interpreting such provisions extensively or by analogy, in view of their exceptional nature and the principle of neutrality that structurally defines the tax in question, as concerns to the tax exemption for cultural activities, provided for in paragraph n) of article 132.º of the VAT Directive, to the Member States were recognised, during a transitional period (on the date on which the contested liquidations were issued), the possibility of maintaining certain operations, namely those carried out by the organisers of musical performances, exempt from VAT.
III – The Portuguese State exercised the option referred to in II, which is enshrined in subparagraph a), of the paragraph 9, of article 15.º, of the CIVA. As a result, providers of musical performances are to be understood as being covered by that provision or exemption, since those performances are provided on behalf of the person promoting the performance, that in other words, means that they are not provided directly to the public by the musicians themselves.
IV – The exemption referred to in III is not affected by the fact that the promoter or provider of the service is not considered as subject of VAT.”.
Judgment of the Supreme Administrative Court, of October 12, Case no. 0929/02.1BTLRS 0809/16: VAT. Share capital participation.
“The disposal of shares by a SGPS, as part of an operation to restructure the group’s economic activity, is not subject to VAT, either because such disposal, in line with european case-law [judgment EDM (C-77/01)], cannot be classified as an “economic activity” (has no permanent character) carried out by the SGPS, or because it is clearly of an accessory character as it corresponds to an isolated option to restructure the group’s activity.”.
Judgment of the Supreme Administrative Court, of October 12, Case no. 0452/21.5BELRS: Incompetence.
“The Supreme Administrative Court (STA) is incompetent, in the thread of the hierarchy, to know a judicial appeal against a (judicial) decision imposing a fine, when it is not a decision on the merit.”.
Judgment of the Supreme Administrative Court, of October 19, Case no. 091/21.0BALSB: Autonomous taxation. IRC. Charge. Presumption.
“The legal provisions establishing autonomous taxation which are the subject of paragraphs 3 and 9 of article 88.º of the IRC Code do not enshrine any presumption which is susceptible of proof to the contrary.”.
Judgment of the Southern Central Administrative Court, of October 6, Case no. 124/22.3BCLSB: Sports Arbitration Court. Good name and reputation. Right to criticism. Freedom of expression and information.
“I – The issuing of a press release by a sports club official source, inserted in an FPF competition, in which is imputed to this entity a deliberate action to harm it and benefit a rival club, directly attacks the good name and reputation of the concerned.
II – The right of criticism and freedom of expression and information are in conformity in this case with the duties incumbent upon the club, namely the duty to promote values relating to sports ethics and to contribute towards preventing offensive manifestations of the organs of the sports structure and persons related to them, as well as not to publicly express judgements or affirmations that are harmful to the reputation of the organs of the sports structure.”.
Judgment of the Southern Central Administrative Court, of October 20, Case no. 463/22.3BESNT: Material Incompetence. Social administrative judgment. Common administrative judgment.
“I. Under the terms of article 36, first paragraph, subparagraph t) of the “ETAF”, it is the President’s responsibility of each Central Administrative Court “to know conflicts of jurisdiction between administrative courts of jurisdiction, tax courts or courts of specialised jurisdiction, within the area of jurisdiction of the respective Central Administrative Court”, being that within the scope of administrative litigation the conflicts of jurisdictional competence and attributions are regulated in articles 135.º to 139.º of the “CPTA”.
II. The rule contained in subparagraph b) of the first paragraph of Article 44.º-A of the “ETAF”, according to which the social administrative court has jurisdiction to resolve, in addition to other matters conferred upon it by law, the cases concerning disputes (i) arising from the public functions employment contract and its formation or (ii) relating to public or private forms of social protection, must be interpreted in the more restricted sense of conferring jurisdiction to resolve only disputes relating to public or private forms of labour-related social protection.
III. The normative framework applicable to Lawyers, provided for in the Statute of the respective Bar Association (Law no 145/2005 of 09.09.2005, in its current version) enshrines in its article 114.º et seq. that disciplinary action in relation to lawyers is exclusively exercised by the respective Bar Association.
IV. In a legal action whereby the plaintiff, a lawyer, seeks to challenge a Ruling/Decision of the Supreme Council of the Bar Association, we have to consider that the case is not related to a litigation arising from the public functions employment relationship referred to in article 44.º-A, first paragraph, sub paragraph b) of the “ETAF”, and therefore the court with material competence to resolve the dispute is the common administrative circulus of the Administrative Court where the action was filed.“.
Judgment of the Southern Central Administrative Court, of October 21, Case no. 158/22.8BCLSB: Sports Justice. Preliminary injunction. Requirements. Fumus boni iuris. Periculum in mora.
“1- The Sports Arbitration Court has no jurisdiction to decide on the resolution of issues arising from the application of technical and disciplinary rules directly concerning the practice of sporting competition itself (cf. article 4.º, sixth paragraph of the “TAD” Law).
2- The assessment of an (alleged) conduct of a player who freely, voluntarily, and knowingly attacked a player of the opposing team, in this case with a slap on the face, during a sporting competition, has the result that the object of the providence involves a controversy relative to the practice by the Claimant of a conduct that can be framed within the provision of article 151.º, n.º 1, of the “RDLPFP” [Assaults to Players] and that we are moving within the scope of questions of fact related to the game laws and that motivate the application of technical and specifically disciplinary rules.
3-The verification of a dilatory exception in the “TAD”, determines the fumus malus juris generator of the unfounding of the providence known in this “TCA Sul”, by way of article 41.º of the Law of the TAD.“.
IV.1.1. Monographs and Periodic Publications
Ana Rita Magalhães. Créditos Laborais no Processo de Insolvência, Almedina, October 2022.
Ana Sirage Coimbra. Lei-Quadro das Contraordenações Ambientais – Anotada e Comentada, Almedina, October 2022.
André Alfar Rodrigues. Manual Teórico-Prático de Compliance, Almedina, October 2022.
António Henriques Gaspar, José António Henriques dos Santos Cabral, Eduardo Maia Costa, António Jorge Fernandes de Oliveira Mendes, António Pereira Madeira, António Pires Henriques da Graça. Código de Processo Penal Comentado, Almedina, October 2022.
António Pereira de Almeida. Sociedades Comerciais, Valores Mobiliários, Instrumentos Financeiros e Mercados – Volume II – Valores Mobiliários, Instrumentos Financeiros e Mercados, Almedina, October 2022.
Bernardo Costa Faria. Perda Alargada de Bens no Sistema Penal Português – As singularidades do confisco previsto na Lei n.º 5/2002: (…), Almedina, October 2022.
Sérgio Vasques. Cadernos IVA 2022, Almedina, October 2022.
Joaquim António Lourenço Boavida. A Flexibilização da Prisão – Da Reclusão à Liberdade, Almedina, October 2022.
Luís Poças. Seguros e Impostos. O Regime Fiscal dos Produtos de Seguros (IRS, IRC, EBF, IS), Almedina, October 2022.
Paulo de Sousa Mendes. O Sancionamento das Práticas Restritivas da Concorrência, Almedina, October 2022.
Simão Mendes de Sousa. Constitucionalismo Digital – Uma Introdução, Almedina, October 2022.
IV.1.2. Generic Guidelines & Cia
Circular Letter no. 20245, of 2022-10-26, by order of the Deputy Director-General of IR and International Relations.
Subject: Extraordinary Support granted by the “AT” to income earners – frequently asked questions (FAQ’s).
Circular letter no. 30250, of 2022-10-24, by order of the Subdirector General of the Tax Management Area – VAT.
Subject: VAT- Forestry – Transmission of wood with or without transformation.
IV.2.1. Economy, Finance and Taxation
On October 9, the Council of Ministers approved the Proposal of Law for the State Budget for 2023, as well as the Proposal of Law for the Great Options for 2022-2026.
On the 20th of October, the Council of Ministers approved:
i) the draft law, to be submitted to the Parliament, which strengthens the mechanisms to combat violence in sport;
ii) the National Cyber Defence Strategy, which characterises and densifies the strategic vision, inter-organisational framework and development of cyber defence capabilities, crucial for digital sovereignty;
iii) the decree-law amending the Public Procurement Code, Law no. 30/2021, which approves special measures for public procurement, and Decree-Law no. 60/2018, of 3 August, which simplifies administrative procedures necessary for the pursuit of research and development activities;
iv) the resolution determining the allocation of the reimbursements corresponding to the European Regional Development Fund (ERDF) component of the JESSICA (Joint European Support for Sustainable Investment in City Areas) Portugal Fund; and
v) a draft law, to be submitted to the Portuguese Parliament, authorising the Government to review the legal framework for collective investment activity, to adopt a more harmonised, coherent and uniform regulatory policy approach.
IV.2.2. Industrial Property
The European Commission’s Directorate-General for Support for Structural Reforms (DG REFORM) plans to provide the Technical Support Instrument available in 2023. Among the various objectives of the Instrument, the promotion of Intellectual Property (IP) Rights to stimulate innovation and protect investment with a view to improving the competitiveness of European enterprises, especially Small and Medium Enterprises, is highlighted through the following measures:
i) Simplify the regulatory framework for the registration of IP rights;
ii) Reviewing the relevant governance mechanisms;
iii) Developing mechanisms to fight against infringements (exchange of best practices, capacity building, IT tools).
The European Union (EU) Fund to support the protection of Industrial Property Rights of Small and Medium Enterprises (SMEs) will suspend, as of today and until next 8 November, the attribution of vouchers for the reimbursement of fees related to the pre-screening service of Industrial Property – IP Scan and the registration of trademarks and designs (voucher 1).
This measure arises in the wake of the exhaustion of the funds available for this modality. However, the application process for voucher 2, which can be used for the reimbursement of fees for national patents (up to a maximum amount of 750 euros), is still active.
On November 10, from 11:00 to 12:30 (CET), a webinar on the Trademark Directive promoted by EUIPO and INPI will take place, with the following programme:
- The conflict between trademarks and Geographical Indications (“PDO/PGI”);
- Well-known and prestigious trademarks;
- Opposition proceedings (NTT, CM).
From the EUIPO/IEP Report, which presents the relationship between intensive use of Intellectual Property Rights (IPR) and economic performance in the European Union, considering for this purpose the period between 2017 and 2019, it is drawn that IPR Intensive Industries:
i) Generated 29.7% of jobs in the EU during the said period;
ii) Generated 47.1% of total economic activity (GDP) in the EU, worth €6.4 trillion;
iii) Are responsible for the largest share of trade between the EU and the rest of the world; and
iv) Pay significantly higher wages than other industries, with a wage premium of 41%.
Montenegro recently became the 39th state to join the European Patent Organisation. This accession follows the deposit of its instrument of accession to the European Patent Convention (EPC) on 15 July 2022. In this context, since October 1, European patent applications include the designation of the new contracting state – Montenegro.
The European Union Intellectual Property Office (EUIPO) and the European Commission are once again making available a new fund, in 2022, with a simpler and more flexible financial scheme to support Small and Medium Enterprises. In this sense, it is informed that applications to the European Support Fund for SMEs are still open.
The provisional statistical data regarding the applications and grants of Industrial Property Rights (IPR), updated to September 2022, were published on 18 October. Of this statistical data, the following are noteworthy:
i) The total number of International Applications (PCT) and European Patent applications, via “INPI” as Receiving Office, had a growth of 4.7% (45 in 2022, 43 in 2021). The number of European Patent validations, filed in Portugal in the last nine months, decreased by 22.6% (2,930) compared to the same period in 2021 (3,785);
ii) Applications for European Union and International Trademarks of origin in Portugal decreased by 16.0% (1,491 in 2022 compared to 1,775 in 2021);
iii) Applications for Community Design of origin in Portugal decreased, with a 28.2% decrease in the number of objects filed (415 in 2022, 578 in 2021).
All statistical reports (annual and biannual) and monthly data regarding applications and concessions of Industrial Property Rights are available at the IP Observatory.
On October 26, the city of Lisbon received the AUTHENTICITY city seal, under a joint project of “INPI”, with the Lisbon City Council, and with the support of EUIPO (European Union Intellectual Property Office).
The “Authenticities” project was launched by EUIPO, in the framework of its European Cooperation activities and Strategic Plan 2025 and is based on a pilot initiative led by INDICAM (Italy), in association with ANDEMA (Spain) and UNIFAB (France), three national trademark associations.
SHARE THIS ARTICLE
- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW