Newsletter – November 2022

drae-legal19

Newsletter-mgra-advogados-novembro-2022

I. EDITORIAL – EFFECTS OF THE INCREASE IN THE REFERENCE INDEXING RATES OF CREDIT CONTRACTS FOR THE ACQUISITION OR CONSTRUCTION OF PERMANENT HOME OWNERSHIP; PLATFORM OF CESSATION OF CONTRACTS

The month of November was characterised, in legislative terms, by the publication of the Decree-Law no. 80-A/2022, of November 25, which established measures to mitigate the effects of the increase in the reference indexing rates of credit contracts for the acquisition or construction of permanent home ownership and by the publication of the Ordinance no. 284/2022, of November 28, which approved the functionalities of the “Contract Cessation Platform”.

Also worthy of note at the legislative level are:

  • The Ordinance no. 268-A/2022, of November 04, which reviewed and set the values of tax rates on oil and energy products;
  • The Decree-Law no. 78/2022, of November 07, which amended the Law no. 30/2021, of May 21, which approved special measures for public contracting, the Public Contracts Code and Decree-Law no. 60/2018, of August 03, simplifying administrative procedures necessary for the pursuit of research and development activities;
  • Ordinance no. 280/2022, of November 18, which established the updating of the meal allowance, on 01 October 2022, for Public Administration employees.

In the scope of case law, it is worth mentioning the Judgment of the Constitutional Court no. 781/2022, of November 17, Case no. 399/2022, which decided: “To deem unconstitutional the incriminating rule contained in paragraph 3 of article 387.º, of the Criminal Code, on the grounds of a combined violation of article 27.º and paragraph 2 of article 18.º of the Constitution (…)”.

Finally, regarding Miscellaneous, it is worth noting the approval of the Decree-Law which transposes into national law the Directive (EU) 2019/1936, concerning to road infrastructure safety management, establishing the new legal regime for the definition and application of procedures relating to road safety impact assessments, road safety audits, network-wide road safety assessments and periodic, joint and specific road safety inspections.

II. LEGISLATION

Ordinance no. 265/2022, of November 02: Amends (thirteenth amendment) the Specific Regulation of the Social Inclusion and Employment Domain, approved in annex to Ordinance no. 97-A/2015, of March 30.

https://files.dre.pt/1s/2022/11/21100/0000300005.pdf

Resolution of the Council of Ministers no. 106/2022, of November 02: Approves the National Cyber Defence Strategy.

https://files.dre.pt/1s/2022/11/21100/0001300022.pdf

Ordinance no. 268-A/2022, of November 04: Review and setting of the values of tax rates on oil and energy products.

https://files.dre.pt/1s/2022/11/21301/0000200003.pdf

Decree-Law no. 78/2022, of November 07: Amends the Law no. 30/2021, of May 21, which approved special measures for public contracting, the Public Contracts Code and Decree-Law no. 60/2018, of August 03, simplifying administrative procedures necessary for the pursuit of research and development activities.

https://files.dre.pt/1s/2022/11/21400/0000800020.pdf

Ordinance no. 269/2022, of November 08: Constitutes the Commission for the Follow-up, Monitoring and Evaluation of the Informal Caregiver Statute.

https://files.dre.pt/1s/2022/11/21500/0000700008.pdf

Dispatch no. 13173/2022, of November 14: Amendment of the number 1 of Dispatch no. 1365/2012, of January 31, republished by Dispatch no. 5932/2018, of June 18.

https://files.dre.pt/2s/2022/11/219000000/0005800059.pdf

Rectification Declaration no. 29/2022, of November 15: Rectifies the Resolution of the Council of Ministers no. 82/2022, of September 27, which defines preventive measures to handle the current situation and possible future disruptions, always with a view to guaranteeing the security of energy supply.

https://files.dre.pt/1s/2022/11/22000/0000300003.pdf

Ordinance no. 277/2022, of November 15: Establishes the percentage amount of the justice fee to be allocated to the Social Security Executive Collection Fund.

https://files.dre.pt/1s/2022/11/22000/0000400005.pdf

Decree-Law no. 78-A/2022, of November 15: Reinforces the incentive system “Support for Gas Intensive Industries”, creates a financing line for the social sector and regulates the payment of extraordinary support to income and social benefit holders.

https://files.dre.pt/1s/2022/11/22001/0000200004.pdf

Ordinance no. 280/2022, of November 18: Establishes the updating of the meal allowance, on 01 October 2022, for Public Administration employees.

https://files.dre.pt/1s/2022/11/22300/0000600006.pdf

Ordinance no. 282/2022, of November 23: First amendment to the Regulation of the National Habitation Council, approved in annex to the Ordinance no. 29/2021, of February 09.

https://files.dre.pt/1s/2022/11/22600/0001300014.pdf

Resolution of the Council of Ministers no. 111-A/2022, of November 24: Authorises additional expenditure associated with the procedures for purchasing vaccines against COVID-19.

https://files.dre.pt/1s/2022/11/22701/0000200003.pdf

Decree-Law no. 80-A/2022, of November 25: Establishes measures to mitigate the effects of the increase in the reference indexing rates of credit contracts for the acquisition or construction of permanent home ownership.

https://files.dre.pt/1s/2022/11/22802/0000200006.pdf

Ordinance no. 284/2022, of November 28: Approves the functionalities of the “Contract Cessation Platform”.

https://files.dre.pt/1s/2022/11/22900/0000500009.pdf

III. CASE-LAW

III.1. Court of Justice of the European Union

Judgment of the Court of Justice (Fourth Chamber), of 10 November 2022, Case C-203/21: Reference for a preliminary ruling. Judicial cooperation in criminal matters. Framework Decision 2005/212/JHA. Applicability. Imposition of a financial penalty on a legal person for non-payment of tax debts. Concept of “confiscation”. Articles 48.º, 49.º and 52.º of the Charter of Fundamental Rights of the European Union. Penalties of a criminal nature. Principles of the presumption of innocence and the legality and proportionality of criminal offences and penalties. Rights of the defence. Imposition of a criminal penalty on a legal person for an offence committed by the representative of that legal person. Parallel criminal proceedings against that representative that have not been concluded. Proportionality.

Summary:

The article 48.º of the Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation under which a national court may impose on a legal person a criminal penalty for an offence for which a natural person who has the power to bind or represent that legal person is allegedly liable, where that legal person has not been put in a position to dispute the reality of that offence.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62021CJ0203

Judgment of the Court of Justice (Fifth Chamber), of 10 November 2022, Case C‑358/21: Reference for a preliminary ruling. Competition. Agreements, decisions and concerted practices. Article 101.º TFEU. Penalty imposed by the national competition authority. Determination of the amount of the fine. Consideration of turnover in the profit and loss account. Request for the national competition authority to take into account a different turnover. Refusal by the Competition Council. Real situation of the undertaking concerned. Principle of proportionality.

Summary:

The article 4(3) TEU and article 101.º TFEU must be interpreted as precluding national legislation or practice under which, for the purposes of calculating the fine imposed on an undertaking for infringement of article 101.º TFEU, the national competition authority is required, in all circumstances, to take into account the turnover of that undertaking as shown in its profit and loss account, without having the possibility of examining evidence put forward by that undertaking to show that that turnover does not reflect its real economic situation and that, consequently, another amount which reflects that situation should be taken into account as turnover, provided that that evidence is precise and documented.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62021CJ0385

Judgment of the Court of Justice (Ninth Chamber), of 10 November 2022, Case C‑414/21: Reference for a preliminary ruling. Freedom of establishment. Article 49.º and 54.º TFEU. Transfer of a company’s registered office to a Member State other than that in which it was incorporated. Recovery of write-downs recorded prior to the transfer. Exemption. Comparability of situations.

Summary:

“The article 49.º TFEU does not preclude national tax legislation under which increases in value of shares in companies recorded by a company in a Member State, after the transfer of its registered office in that Member State, are treated as being expressed but unrealised capital gains, without taking into account whether those shares gave rise to the recording of write-downs by that company on a date on which it was a taxable resident of another Member State.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62021CJ0414

Judgment of the Court of Justice (First Chamber), of 17 November 2022, Case C607/20: Reference for a preliminary ruling. Common system of value added tax (VAT). Directive 2006/112/EC. Article 26(1)(b). Supply of services free of charge. Award of retail vouchers free of charge to staff of the taxable person’s business as part of an employee recognition and reward scheme. Transactions treated as supplies of services for consideration. Scope. Principle of fiscal neutrality.

Summary:

The article 26(1)(b) of Council Directive 2006/112/EC of November 28 of 2006 on the common system of value added tax must be interpreted as meaning that a supply of services consisting, for a business, in offering retail vouchers to its employees, in the context of a programme set up by that business, designed to recognise and reward the most deserving and high-performing employees, does not fall within its scope.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62020CJ0607

Judgment of the Court of Justice (Seventh Chamber), of 24 November 2022, Case C358/21: Reference for a preliminary ruling. Judicial cooperation in civil matters. Jurisdiction and the enforcement of judgments in civil and commercial matters. Lugano II Convention. Jurisdiction clause. Formal requirements. Clause included in the general terms and conditions. General terms and conditions which may be viewed and printed from a hypertext link mentioned in a contract concluded in writing. Consent of the parties.

Summary:

The article 23(1) and (2) of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on October 30 of 2007, the conclusion of which was approved on behalf of the European Community by Council Decision 2009/430/EC of November 27 of 2008, must be interpreted as meaning that a jurisdiction clause is validly concluded where it is contained in the general terms and conditions to which the contract concluded in writing refers by the inclusion of a hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed prior to that contract being signed, without the party against whom that clause operates having been formally asked to accept those general terms and conditions by ticking a box on that website.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62021CJ0358

Judgment of the Court of Justice (Eighth Chamber), of 24 November 2022, Case C458/21: Reference for a preliminary ruling. Taxation. Value added tax (VAT). Directive 2006/112/EC. Article 132(1)(c). Exemptions for certain activities in the public interest. Provision of medical care in the exercise of the medical and paramedical professions. Service used by an insurance company to review the accuracy of a diagnosis of serious illness and find and provide the best possible care and treatment abroad.

Summary:

The article 132(1)(c) of Council Directive 2006/112/EC of November 28 of 2006 on the common system of value added tax must be interpreted as meaning that services consisting in verifying the accuracy of an insured person’s diagnosis of serious illness, in order to determine the best possible health care with a view to the insured person’s recovery and to ensure, where that risk is covered by the insurance contract and where the insured person so requests, that the medical treatment is provided abroad, are covered by the exemption provided for in that provision.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62021CJ0458

Judgment of the Court of Justice (Fifth Chamber), of 24 November 2022, Case C596/21: Reference for a preliminary ruling. Taxation. Value added tax (VAT). Directive 2006/112/EC. Articles 167.º and 168.º. Right to deduct input VAT. Principle of prohibition of fraud. Chain of supply. Refusal of the right to deduct in the case of fraud. Taxable person. Second purchaser of goods. Fraud affecting part of the VAT due in respect of the first purchase. Scope of the refusal of the right to deduction.

Summary:

1)Articles 167.º and 168.º of Council Directive 2006/112/EC of November 28 of 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of July 13 of 2010, read in the light of the principle of the prohibition of fraud, must be interpreted as meaning that the second purchaser of goods may be refused the benefit of deducting input value added tax (VAT) on the ground that he or she knew or ought to have been aware of the existence of VAT fraud committed by the original seller at the time of the first sale, even if the first purchaser was also aware of that fraud.

2)Articles 167.º and 168.º of Directive 2006/112/EC, as amended by Directive 2010/45/EU, read in the light of the principle of the prohibition of fraud, must be interpreted as meaning that the second purchaser of goods which, at a stage prior to that purchase, were the subject of a fraudulent transaction relating to only part of the value added tax (VAT) which the State is entitled to collect must have the right to deduct the input VAT refused in its entirety where that second purchaser knew or ought to have known that that purchase was linked to fraud.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62021CJ0596

Judgment of the General Court (Second Chamber), of 30 November 2022, Case T-611/21: Community design. Invalidity proceedings. Community design representing an accessory for wireless remote controls. Ground for invalidity. Characteristics of the appearance of a product dictated solely by its technical function. Articles 8(1) and 25(1)(b) of Regulation (EC) no. 6/2002. Facts alleged or evidence presented for the first time before the Board of Appeal. Article 63(2) of Regulation no. 6/2002. Duty to state reasons. Article 41(1) and (2)(c) of the Charter of Fundamental Rights.

Summary:

“1) Annuls the Decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of July 5 of 2021 (Case R 1070/2020-3).

2) Orders EUIPO to pay the costs of the proceedings before the Board of Appeal of EUIPO and before the General Court”.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62021TJ0611&qid=1653492230820

III.2. Constitutional Court

Judgment of the Constitutional Court no. 750/2022, of November 04, Case no. 1030/20:

Under the terms and on the grounds set forth, it is decided:

a) To deem unconstitutional the normative segment of the variable f, included in the formula provided for in subparagraph a) of paragraph 3 of article 15.º of the Stamp Duty Code, in which the capitalization factor f = 100/0.05 (or f = 2000), by applying the interest rate applied by the European Central Bank to its main refinancing operations, as published in the Official Journal of the European Union, in force on the date on which the transfer occurred, for violation of the principle of proportionality, as a prohibition of excess.

b) Dismiss the appeal.“.

http://www.tribunalconstitucional.pt/tc/acordaos/20220750.html

Judgment of the Constitutional Court no. 781/2022, of November 17, Case no. 399/2022:

“For the above reasons, it is decided:

a) To deem unconstitutional the incriminating rule contained in paragraph 3 of article 387.º, of the Criminal Code, on the grounds of a combined violation of article 27.º and paragraph 2 of article 18.º of the Constitution; and, consequently,

b) Dismiss the appeal.”

http://www.tribunalconstitucional.pt/tc/acordaos/20220781.html

Judgment of the Constitutional Court no. 792/2022, of November 17, Case no. 601/19:

“For all the above reasons, it is decided:

a) To deem unconstitutional the rule set out in paragraph 8 of article 2.º of the New Wage Guarantee Fund Regime, approved by Decree-Law no. 59/2015, of April 21, in the interpretation according to which the one-year time limit to request the payment of labour claims, certified with the declaration of insolvency, set out in that legal precept is of limitation and not susceptible of any interruption or suspension, due to the violation of subpragraph a), paragraph 1 and 3 of article 59.º of the Constitution of the Portuguese Republic;

b) Not to deem unconstitutional the rule extracted from subparagraph a) of paragraph 3 of article 3 of Decree-Law no. 59/2015, of April 21, pursuant to which applications filed during Special Revitalisation Proceedings are subject to the New Wage Guarantee Fund Regime and are subject to ex officio reappraisal

c) Consequently, grant the appeal in part, and the appealed decision must be reformulated in accordance with this judgment.”

http://www.tribunalconstitucional.pt/tc/acordaos/20220792.html

III.3. Judicial Courts

Judgment of the Supreme Court of Justice, of November 09, Case no. 1747/20.0T8AMT-H.P1.S1: Judgment reform. Nullity. Opinions. Documents.

Summary:

“I- Article 616.º, no. 2 of the CPCivil disposes, in what concerns the reform of the decision, applicable here by force of the precepted one in article 679.º of the same diploma:

“1 – Where the decision cannot be appealed, any party may also request the reform of the decision when, by manifest error of the judge:

a) There was an error in the determination of the applicable norm or in the legal qualification of the facts;

b) There are documents or other evidence in the case-file which, in themselves, necessarily imply a decision different from the one handed down.

II- The legal opinions submitted by the parties are relevant in terms of the study and framing of questions of a legal nature raised by the parties, and contribute towards enlightening the judge, such opinions are not the documents alluded to in subparagraph b) of the paragraph 2 of article 616. º of the CPCivil and may not lead to a solution contrary to the one adopted.

III- There is no failure to state reasons if the Court does not deal with issues addressed in the attached opinions, moreover because those were not the object of a statement either in the conclusions of the appeal, or in the Decision in the impugnation”.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/b1bfc2a958f51ec7802588f500471931?OpenDocument

Judgment of the Supreme Court of Justice, of November 09, Case no. 1559/18.1T8LSB.L2.S1: Financial intermediation. Bank deposit. Securities. Directive. Uniformization of jurisprudence. Duty to provide information.

Summary:

“I- The AUJ obtained in Case 1479/16.4T8LRA.C2.S1-A, dated 6 December 2021, drew the following unifying segment:

«1. In the context of pre-contractual or contractual civil liability of the financial intermediary, pursuant to paragraph 1 of article 7.º, subparagraph a), paragraph 1 of article 312.º and article 314.º of the Securities Code, in the wording prior to that introduced by Decree-Law 357-A/2007, of October 31, and 342.º. It is incumbent on the investor, even when not qualified, to prove the breach by the financial intermediary of the information duties legally imposed on it and the causal connection between the breach of the information duty and the damage.

2. If the Bank, a financial intermediary – which suggested the subscription of subordinated bonds with a 10-year maturity to a client who did not have the knowledge to assess the risk of that financial product and did not intend to invest his money in “risky products” – only informed the client, with regard to the risk of the product, that the “repayment of the capital was guaranteed (as it was not a risky product”), without any further explanation, namely, what subordinated bonds were, it does not comply with the duty of information alluded to in paragraph 1 of article 7.º of the CVM.

3. The causal link must be established based on the absence or inaccuracy, attributable to the financial intermediary, of the information necessary for the decision to invest.

4. To establish the causal link between the breach of information duties, on the part of the financial intermediary, and the damage arising from the decision to invest, it is for the investor to prove that the provision of due information would lead him not to take the decision to invest.».

II- If the Applicant Bank did not comply with its duty to inform, there was a lack of communication necessary for the subscriber to consciously take an investment decision and, furthermore, the investor would never have acquired the SLN 2006 bonds if he had been informed that they were a product with the risk of capital loss, whose reimbursement the Bank did not, in the end, guarantee, hence its liability under the terms of article 314.º of the CVM.

III- However, in order for this liability to be effective, the existence of illicit conduct alone is not enough, the Law requiring guilt, damage and a causal nexus.

IV- If guilt is presumed, in these specific circumstances, as inferred from paragraph 2 of article 304.º-A, when it states that «The fault of a financial intermediary is presumed when the damage is caused in the context of contractual or pre-contractual relations and, in any event, when it is caused by the violation of duties of information.» In this regard, the Defendant’s allegation and proof of the causal connection, essential in terms of jurisprudential standardisation, to establish the liability claimed is lacking, which inexorably leads to the dismissal of the claim.”

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/47b32ecaa37a25a3802588f50045e8ca?OpenDocument

Judgment of the Supreme Court of Justice, of November 10, Case no. 250/21.6T8OER-A.L1.S1: Blank promissory note. Subscriber. Declaration of insolvency. Early maturity. Start of limitation period. Credit opening agreement. Underlying legal relationship. Exchange relationship. Surety. Potestative right. Legitimate bearer. Covenant of completion. Abusive filling. Assumptions.

Summary:

“I – The declaration of insolvency of the promissory note subscriber determines, pursuant to paragraph 1 of article 91.º of the CIRE, the immediate maturity of the obligation arising from the underlying or fundamental relationship;

II – It does not follow that the declaration of insolvency constitutes the initial term of the limitation period for a promissory note issued pro solvendo, which is three years, pursuant to article 70.º of the Portuguese Companies Act;

III – If not otherwise agreed, the bearer has the right to fill in the promissory note with any date after the maturity date of the underlying obligation, particularly when the maturity date arises from the insolvency of the subscriber;

IV – It follows that the limitation period will only start to run on the day the due date is set by the person who should fill in the promissory note;

V – The behaviour of the bearer who completes the completion of the promissory note and affixes as maturity date 24.07.2019, approximately five and a half years after the insolvency of the subscriber of the promissory note, is not abusive.“.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/9b949e25eed50faa802588f60061023b?OpenDocument

Judgment of the Supreme Court of Justice, of November 10, Case no. 3328/17.7T8STR.E2.S1: Banking liability. Financial intermediation. Duty of information. Burden of proof. Uniform jurisprudence judgment. Causal link. Unlawfulness. Presumption of guilt. Damage. Securities. Obligation to indemnify. Presumptions.

Summary:

“I. The essential purpose of the intermediation activity is to encourage informed investment decisions, in order to defend the market and prevent damage to the interests of clients, it being important that at the level of duties imposed on the financial intermediary, including the bank authorised for that purpose, the duties of information in relation to the services it offers stand out, are requested or that it actually provides, which must be fulfilled by providing “all information necessary for an informed and grounded decision”, being that the information to be provided by the financial intermediary to the non-qualified investor will be illicit if there is a breach of the duty of information, with its indispensable requirements: completeness, veracity, timeliness, clarity, objectivity and lawfulness.

II. The extension and depth of the information should be greater the lesser the degree of knowledge and experience of the client (principle of inverse proportionality).

III. In order for the assumptions of the financial intermediary’s contractual civil liability to be verified, it is necessary to demonstrate the illicit fact (translated into the provision of incorrect information, within the framework of a banking and financial intermediation business relationship); the guilt (which is presumed); the damage (corresponding to the loss of the capital delivered for the subscription of the sound financial product); It is also important to assess the causal connection between the fact and the damage (recognising that the person alleging the right is responsible for demonstrating the existence of the causal connection between the unlawful act and the damage, the causal connection and the damage not being presumed, hence, in order to be able to affirm that the financial intermediary is liable for the damage suffered by the investors, it is necessary for those investors to demonstrate the causal link between the breach of the duty to provide information and the damage, the causal link having to be analysed through demonstration, which arises from the facts”).“.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/5b9bbf95ae7a8644802588f600612ca2?OpenDocument

Judgment of the Lisbon Court of Appeal, of November 09, Case no. 68/21.6PESTB-C.L1-3: Cybercrime Law. Correspondence. Seizure.

Summary:

“The remission operated by article 17 of Law no. 109/2009, of 15 September, with the current wording given by Law no. 79/2021, of 24/11 (Cybercrime Law) does not cover all aspects of the regime portrayed by the Criminal Procedure Code for correspondence.

Within the scope of the seizure of correspondence, in the legal framework of the Criminal Procedure Code, this always requires prior authorisation from the judge, but not in the case of the seizure of e-mails and similar communication records“.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/54b6f760cd8f042f802588fd00593521?OpenDocument

Judgment of the Lisbon Court of Appeal, of November 10, Case no. 5611/13.1T2SNT-A.L1-2: Execution. Assignment of credit. Proof of claim. Time limit.

Summary:

“1. As follows from the provisions of paragraph 1 of article 53.º and paragraph 1 of article 54.º of the C. P. Civil, if the assignment of the enforceable claim occurred prior to the commencement of the enforcement, since the quality of holder of the claim does not result from the enforcement title itself, the enforcer shall deduce in the enforcement petition the facts that confer such quality.

2. If the assignment of the claim occurred after the enforcement was filed, as set forth in article 356.º of the CPC and in paragraph 1 of article 53.º of the CPC, the empowerment of the acquirer or assignee must be requested in the enforcement proceedings, and the respective incident may be requested “…by the transferor or assignor, by the acquirer or assignee, or by the opposing party…”, as set forth in paragraph 2 of article 356.º of the CPC. in the case of claims provided for in Decree-Law no. 42/2019, of March 28, by the transferor or transferor and by the acquirer or transferee under the terms established in article 3.º of that Decree-Law, attaching a copy of the assignment contract.

3. The failure to empower the transferee of the credit being enforced shall not constitute legal grounds to oppose enforcement by way of motions to stay execution due to supervening illegitimacy of the enforcer, under the terms provided for in paragraph 2 of article 728.º of the Civil Code.

4. The application of the provisions of article 263.º of the C. P. Civil, to enforcement proceedings, with the necessary adaptations, as determined by paragraph 1 of article 551.º of the C. P. Civil, taking into account the general principles of interpretation, enshrined in article 9.º of the C. P. Civil Code, of which we highlight the literal element of interpretation, the unity of the legal system and the legal values to be safeguarded, lead us to the conclusion that in the event of transfer of the credit being enforced after the enforcement has been commenced, the transferor continues to have legitimacy for the terms of enforcement, without prejudice to the duty to request the empowerment of the transferee, within the timeframe that contradicts the provisions of paragraph 5 of article 281.º of the C. P. Civil, but always before payment of the claim being enforced, to be made to the transferee.“.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/adb39b8c6af27227802588fe00592a19?OpenDocument

Judgment of the Porto Court of Appeal, of November 07, Case no. 6540/20.8T8VNG.P1: Parent company. Dependent company. Employment contract. Labour credits. Joint and several liability.

Summary:

“I – Whether companies are in a participation relationship (articles 483.º, 485.º and 486.º of the CSC) or companies are in a stricto sensu group relationship (articles 488.º, 489.º, 492.º and 493.º of the CSC), the figure of the employer is assumed by that company which is contractually bound, the employer not being the group “in itself”.

II – Therefore, upon termination of a fixed-term temporary employment contract with the “dominant company” and the subsequent signing of a fixed-term employment contract with the “dependent company”, each of those companies is the employer.

III – Since the “dominant company” is called into the process after the “dependent company” alleges its illegitimacy, it may be jointly and severally liable in accordance with article 334.º of the Código do Trabalho (Labour Code) for pecuniary payments arising from the termination of the employment contract entered with the “dependent company” following unlawful dismissal by the latter.”

http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/24f1f4e9384bd18e802588fe00395121?OpenDocument

III.4. Administrative and Tax Courts

Judgment of the Supreme Administrative Court of 03 November 2022, Case No. 041/22.7BCLSB: Arbitration. Disciplinary infraction. Freedom of expression.

Summary:

I – Technical commentary on the game and the refereeing decisions made in it, whenever it is limited to pointing out technical errors, does not constitute a violation of the regulatory norms that protect the right to honour of sports agents.

II – The disciplinary offence foreseen and punished by article 112 of the “RDLPFP 2020” will have to be consubstantiated in a statement that the technical errors of refereeing were based on a wilful intent of the sports agents (whether identified expressly or indirectly through the indication of the match in question) with the intention of favouring or prejudicing one of the teams.“.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/5d835a36be43b6f9802588f30041803c?OpenDocument&ExpandSection=1#_Section1

Judgment of the Southern Central Administrative Court of 10 November 2022, Case No. 429/11.9 BESNT: “IMT”. Co-ownership. Acquisition of full ownership. Taxable capacity. Taxable patrimonial value. Article 12-simultaneous rules.

Summary:

I-The “IMT” is levied on transfers, for valuable consideration, of the right of ownership, which is due by the acquirer of the assets, the same being levied, as a general rule, on the value stated in the deed or contract or on the taxable value of the properties, whichever is greater, upon declaration by the acquirer and subsequent settlement by the central services of the Directorate General of Taxation.

II-The purpose of rule 4 of article 12 of the “CIMT” is to cover situations in which there is partial acquisition of the right of ownership in order to protect the ability to pay that underlies the “IMT” tax.

III-The ratio of the legislator regarding the normative subsumption in rule 4 of rule 12 was in line with the safeguarding of situations in which the immovable property is held by more than one owner and is not sold in its entirety, therefore computing the proportional reality in accordance with the ability to pay.

IV-There is no legal justification and basis for taxing more heavily if the immovable property is held by more than one owner, as opposed to a single owner.

V-The legislature did not intend to establish this differentiation and greater burden when the acquisition of the immovable property in question is full“.

http://www.dgsi.pt/jtca.nsf/170589492546a7fb802575c3004c6d7d/5df7ecbe032b2068802588fa0052e0ed?OpenDocument

Judgment of the North Central Administrative Court of 11 November 2022, Case No. 00645/22.8BEBRG: Prescription. Subrogation. Suspension. Covid19.

Summary:

It is nowadays a pacific jurisprudence that to situations of legal subrogation is applicable, analogically, the limitation period of three years foreseen in article 498, no. 2, of the “CC”.

http://www.dgsi.pt/jtcn.nsf/89d1c0288c2dd49c802575c8003279c7/4fd417e634d80cb98025890800548701?OpenDocument

IV. BRIEFS
IV.1. DOCTRINE
IV.1.1.  Monographs and Periodic Publications

Anabela Miranda Rodrigues. A Inteligência Artificial no Direito Penal Vol. II, Almedina, November 2022.

Constança Urbano de Sousa. Direito das Migrações, Almedina, November 2022.

João Remédio Marques. Direito Processual Civil da Propriedade Industrial, Almedina, November 2022.

Jorge Miguel Morais Carvalho, Manual de Direito do Consumo, Almedina, November 2022.

Maria Beatriz Seixas de Sousa. A Ilegitimidade Singular – A Procura da Possível Sanação, Almedina, November 2022.

Paula Costa e Silva. Responsabilidade por Conduta Processual, Almedina, November 2022.

Paulo de Sousa Mendes. O Sancionamento das Práticas Restritivas da Concorrência, Almedina, November 2022.

Pedro Pais de Vasconcelos. Direito das Sociedades em Revista – October 2022, Year XIII, Vol. 28, Biannual, Almedina, November 2022.

Rui Manuel Pinto Duarte. Formas Jurídicas de Cooperação entre Empresas, Almedina, November 2022.

Sofia Gouveia Pereira. As Prestações Suplementares no Direito Societário Português, Almedina, November 2022.

IV.1.2. General Guidelines & Cia

IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation

On November 24, 2022, the Council of Ministers approved, among others, the following diplomas that transpose to the internal legal order European Union acts regarding different matters:

i) The Decree-Law that sets the Remuneratory Base for the Public Administration at EUR 761.58 and that updates the value of the remunerations of the Public Administration, corresponding to an annual salary increase equivalent to one remuneratory level (EUR 52.11) or 2% for all employees;

ii) The Draft Laws authorising the Government to transpose Directive (EU) 2019/789, which lays down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and Directive (EU) 2019/790, on copyright and related rights in the digital single market;

iii) The Decree-Law transposing Directive (EU) 2019/882, on accessibility requirements for products and services, contributing to the smooth functioning of the internal market by approximating the laws, regulations and administrative provisions of the Member States;

iv) The Decree-Law that amends the regime for the assessment and management of environmental noise, transposing into national law several EU Directives regarding the harmonisation of reporting obligations under environmental legislation; methods for the assessment of the harmful effects of environmental noise and common methods for the assessment of noise, to prevent and reduce the harmful effects of exposure to environmental noise;

v) The Decree-Law that sets targets for the consumption of energy from renewable sources, completing the transposition of Directive (EU) 2018/2001. The diploma materializes the national commitment with the European strategy of decarbonization and energy transition, for a more sustainable future;

vi) The Decree-Law that completes the transposition of Directive (EU) 2019/904, on the reduction of the impact of plastic products on the environment, defining the extended producer responsibility schemes of certain single-use plastic products, as well as the costs to be borne by them;

vii) The Decree Law that transposes into the national legal system the Directive (EU) 2019/1936, on road infrastructure safety management, establishing the new legal regime for the definition and application of procedures related to road safety impact assessments, road safety audits, network-wide road safety assessments and periodic, joint and specific road safety inspections;

viii) The Decree-Law transposing into national law Directive (EU) 2019/520 on the interoperability of electronic road toll systems and facilitating the cross-border exchange of information on non-payment of road fees in the Union.

https://www.portugal.gov.pt/pt/gc23/governo/comunicado-de-conselho-de-ministros?i=521

On 30 November 2022, the Council of Ministers approved, inter alia:

i) The Children’s Guarantee Action Plan 2022-2030, which gives effect to Recommendation (EU) 2021/1004 of 14 June 2021 on the establishment of a European Children’s Guarantee, adopted by the Council of the European Union unanimously during the Portuguese Presidency of the Council. The Action Plan aims to prevent and combat social exclusion by ensuring access for children and young people experiencing poverty to a range of essential services, combating child poverty and promoting equal opportunities and the rights of children and young people;

ii) The Resolution that defines the strategies to reinforce the presence of Portuguese officials in European institutions and international organisations

iii) The Decree-Law that introduces measures to make several declaration, payment and invoicing obligations more flexible and simplifies the tax obligations arising from the sale to the grid of surplus electricity produced for self-consumption.

https://www.portugal.gov.pt/pt/gc23/governo/comunicado-de-conselho-de-ministros?i=522

IV.2.2. Industrial Property

The Portuguese Intellectual Law Association (APDI), in partnership with the University of Lisbon Law School, is promoting the 14th edition of the Postgraduate Course in Intellectual Law, from 14 January to 24 June.

https://inpi.justica.gov.pt/Noticias-do-INPI/APDI-e-FDL-promovem-XIV-Curso-de-Pos-Graduacao-em-Direito-Intelectual

The European Patent Office (EPO) has launched the study “Participation of women in inventive activity”, which concludes that Portugal has the second highest percentage of women inventors among EPO member states.

https://inpi.justica.gov.pt/Noticias-do-INPI/Estudo-IEP-Participacao-das-mulheres-na-atividade-inventiva

The EU Fund to support Small and Medium Enterprises (SMEs) has resumed the awarding of vouchers for the reimbursement of fees related to IP Scan service, trademarks and designs, up to a maximum amount of 1,500 euros (voucher 1, and applications can be made until 16 December on the EUIPO website.

https://inpi.justica.gov.pt/Noticias-do-INPI/Fundo-PME-retoma-atribuicao-de-Vouchers-1

Provisional statistical data regarding Industrial Property Rights (IPR) applications and concessions, updated to November 2022, were published on 17 November. Of this statistical data, the following are noteworthy:

i) From January to October 2022, there was a 5% increase in applications for national inventions, compared to applications filed in 2021. As regards the concessions of national inventions, there was a decrease of 29.9%, compared to the same period last year;

ii) The total number of International Patent (PCT) and European Patent applications fell by 9.1%, just as the number of European Patent validations, filed in Portugal in the last ten months, fell by 23.1% compared with the same period in 2021

iii) Applications for the registration of national Trademarks and Other Trade Distinctive Signs (OSDC) showed a decrease of 16.8% compared to 2021

iv) Regarding International Brand Designations for study and national registration, according to the World Intellectual Property Organization (WIPO) data, there was a decrease of 15%.

All statistical reports (annual and half-yearly) and monthly data on applications and concessions of Industrial Property Rights are available at the IP Observatory.

https://inpi.justica.gov.pt/Noticias-do-INPI/Direitos-de-Propriedade-Industrial-janeiro-a-outubro-2022

The European Commission has launched an evaluation regarding the Implementation of Regulation (EU) 2017/1001 on the European Union trademark.

This evaluation will address the impact, effectiveness and efficiency of the EUIPO, its working practices and the likely need to amend its mandate and the financial implications of such amendment. The deadline for the feedback period is 5 December 2022.

https://inpi.justica.gov.pt/Noticias-do-INPI/CE-lanca-avaliacao-relativa-a-Implementacao-do-Reg-2017-1001-sobre-a-marca-da-UE

The European Support Fund for SMEs is now open for applications. This Fund supports up to 50% of the fees for national patent applications, up to a maximum of EUR 750 per beneficiary SME. In addition, SMEs can, cumulatively, apply for direct financial support in the form of a reimbursement of 75% of the costs incurred in filing one or more applications for registration of trademarks and designs (application fees) within the EU or 50% of the costs for international trade mark and design applications; or a reimbursement of 90% of the costs incurred in IP pre-scanning services (“IP scanning”), up to a maximum of EUR 1500 per company.

https://inpi.justica.gov.pt/Noticias-do-INPI/Novo-Fundo-europeu-de-apoio-as-PME-1

 

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