I. EDITORIAL – LAW ON MAJOR OPTIONS 2022-2026; STATE BUDGET FOR 2023
The month of December was characterised, at the legislative level, by the publication of Law no. 24-C/2022, of December 30, which determines the Major Options for 2022-2026 and of Law no. 24-D/2022, of December 30, which approves the State Budget for 2023.
Also noteworthy, at the legislative level, are:
- Ordinance no. 292/2022, of December 9, which determines the normal age of access to the old-age pension in 2024;
- Decree-Law no. 85-A/2022, of December 22, which updates the value of the minimum monthly salary guaranteed for 2023;
- Law no. 24-B/2022, of December 30, which regulates temporary solidarity contributions on the energy and food distribution sectors; and
- Law no. 24-E/2022, of December 30, which amends the Excise Tax Code (CIEC), Law no. 55/2007 of August 31 and Decree-Law no. 91/2015 of May 29, transposing Directives (EU) 2019/2235, 2020/1151 and 2020/262.
In the field of case-law, it is worth mentioning the Judgment of the Constitutional Court no. 858/2022, of December 21, Case no. 662/20, in which it was decided to “a) Declare unconstitutional, for violation of the principle of fiscal equality, inherent in Article 13.º of the Constitution, the rule extracted from paragraph 9 of Article 78.º of the Personal Income Tax Code, as amended by Law no. 82-E/2014, of 31 December, and until the entry into force of Law no. 106/2017, of 4 September, according to which whenever the same dependent is included in more than one tax return, the value of the deductions from taxable income provided for in the Personal Income Tax Code by reference to dependents is reduced to the amount of the taxable income provided for in the Personal Income Tax Code by reference to dependents. No. 106/2017, of September 4, according to which, whenever the same dependent is included in more than one income tax return, the amount of deductions to the collection provided for in the Personal Income Tax Code by reference to dependents is reduced to half, per taxpayer, without taking into consideration the effective taxpayer that, in compliance with the judicially homologated parental responsibility regulation agreement, supported the specific expenses with the dependent under joint custody deductible to the collection and in which percentage”.
Finally, in Miscellaneous, of note is the approval of the draft law aimed at creating a legal framework to encourage the creation and development of start-ups and scale-ups, changing the taxation regime of stock option plans for employees of start-ups and companies in the innovation sector and adjusting the tax incentive system for business research and development.
Ordinance no. 289-A/2022, of December 2: Reviewing and setting the values of the rates of tax on petroleum and energy products.
Dispatch no. 14043-A/2022, of December 5: Approves the withholding tables on income from dependent work and pensions earned by holders residing in the mainland to be in force during the first half of the year 2023.
Dispatch no. 14043-B/2022, of December 5: Approves the tables of withholding tax on income from dependent labour and pensions earned by holders residing on the mainland to be in force during the second half of the year 2023.
Decree-Law no. 82/2022, of December 5: Transposes Directive (EU) 2019/882, on accessibility requirements for products and services.
Decree-Law no. 83/2022, of December 9: Completes the transposition of Directive (EU) 2019/904, defining the extended producer responsibility schemes for certain single-use plastic products.
Decree-Law no. 84/2022, of December 9: Sets targets for the consumption of energy from renewable sources, partially transposing Directive (EU) 2018/2001.
Dispatch no.14162/2022, of December 9: Determines the extraordinary reinforcement of social action grants, and respective complements, attributed to higher education students.
Ordinance no. 292/2022, of December 9: Determines the normal age of access to the old age pension in 2024.
Decree-Law no. 84-B/2022 of December 9: Transposes Directive (EU) 2019/1936 on road infrastructure safety management.
Decree-Law no. 84-C/2022, of December 9: Transposes Directive (EU) 2019/520, on the interoperability of electronic road toll systems.
Decree-Law no. 84-D/2022, of 9 December: Approves the creation of the transitional regime for the stabilisation of gas prices by legal persons with consumption exceeding 10 000 m3.
Law no. 23-A/2022, of December 9: Transposes Directive (EU) 2019/878 on access to banking activity and prudential supervision and Directive (EU) 2019/879 on the recovery and resolution of credit institutions and investment firms, amending the Legal Framework for Credit Institutions and Financial Companies, the Securities Code and related legislation.
Ordinance no. 293/2022, of December 12: Makes the third amendment to Ordinance no. 206/2020, of August 27, which regulates the ATIVAR.PT Internships measure, which consists in supporting the insertion of young people in the labour market or the professional reconversion of unemployed people.
Ordinance no. 295-A/2022, of December 13: Amends the Regulations of the APOIAR Programme, approved in annex to Ordinance no. 271-A/2020, of November 24.
Ordinance no. 298/2022, of December 16: Undertakes the annual update of the value of the Social Support Index (IAS).
Decree-Law no. 85/2022, of December 21: 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.
Ordinance no. 304/2022, of December 22: Makes the first amendment to Ordinance no. 198/2022, of July 27, which regulates the specific conditions for the implementation of the measure on free day care centres.
Ordinance no. 305/2022, of December 22: Extends the application of the measure of free day care to children attending licensed day care centres of the private profitable network.
Decree-Law no. 85-A/2022, of December 22: Updates the value of the minimum monthly salary guaranteed for 2023.
Decree-Law no. 85-B/2022, of December 22: Establishes support for vulnerable families in the face of extraordinary price increases.
Law no. 24-A/2022, of December 23: Amends the legal regime of local authorities, deepening the regime of metropolitan areas and intermunicipal communities.
Ordinance no. 307/2022, of December 27: Approves the DMR (monthly remuneration declaration – AT) and respective instructions for completion.
Resolution of the Council of Ministers no. 135/2022, of December 28: Revises the specific criteria for granting temporary protection to displaced persons from Ukraine.
Decree-Law no. 87-A/2022, of December 29: Establishes an exceptional regime for updating toll tariffs and fees for the year 2023 and provides support for the use of motorways and bridges under concession subject to the regime of toll charges to users.
Decree-Law no. 90/2022, of December 30: Extends the validity of several documents.
Law no. 24-B/2022, of December 30: Regulates temporary solidarity contributions on the energy and food distribution sectors.
Law no. 24-E/2022, of December 30: Amends the Excise Tax Code, Law no. 55/2007, of August 31, and Decree-Law no. 91/2015, of May 29, transposing Directives (EU) 2019/2235, 2020/1151 and 2020/262.
Law no. 24-C/2022, of December 30: Law of the Major Options for 2022-2026.
Law no. 24-D/2022, of December 30: State Budget for 2023.
Decree-Law no. 90-C/2022, of December 30: Amends the Porta 65 and Accessible Rental Programmes.
Ordinance no. 312-F/2022, of December 30: Revision and fixing of the values of the tax rates on petroleum and energy products.
III.1. Court of Justice of the European Union
Judgment of the Court of Justice (First Chamber), of December 1, Case no. C‑141/20: Reference for a preliminary judgment. Value added tax (VAT). Sixth Directive 77/388/EEC. Second subparagraph of paragraph 4 of the Article 4.º. Taxable persons. Option for Member States to treat as a single taxable person entities that are legally independent but closely bound to one another by financial, economic and organisational links (‘VAT group’). National legislation designating the controlling company of a VAT group as a single taxable person. Concept of ‘close financial links’. Need for the controlling company to have a majority of voting rights as well as a majority shareholding. No need. Assessment of the independence of an economic entity in the light of standardised criteria. Scope.
“1) The second subparagraph of paragraph 4 of the Article 4.º of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2000/65/EC of 17 October 2000, must be interpreted as not precluding a Member State from designating, as a single taxable person of a group formed by persons who are legally independent but closely bound to one another by financial, economic and organisational links, the controlling company of that group, where that controlling company is in a position to impose its will on the other entities forming part of that group and provided that that designation does not entail a risk of tax losses.
2) The second subparagraph of paragraph 4 of the Article 4.º of Sixth Directive 77/388, as amended by Directive 2000/65, must be interpreted as precluding national legislation which makes the possibility for a given entity to form, with the undertaking of the controlling company, a group formed by persons who are legally independent but closely bound to one another by financial, economic and organisational links conditional upon that controlling company having, in that entity, a majority of the voting rights in addition to a majority holding in the share capital of that entity.
3) The second subparagraph of paragraph 4 of the Article 4.º of Sixth Directive 77/388, as amended by Directive 2000/65, read in conjunction with the first subparagraph of paragraph 1 of the Article 4.º of Directive 77/388, as amended, must be interpreted as precluding a Member State from classifying, by categorisation, given entities as non-independent, where those entities are integrated, in financial, economic and organisational terms, into the controlling company of a group formed by persons who are legally independent but closely bound to one another by financial, economic and organisational links.”.
Judgment of the Court of Justice (Grand Chamber), of December 8, Case no. C-694/20: Reference for a preliminary judgment. Administrative cooperation in the field of taxation. Mandatory automatic exchange of information in relation to reportable cross-border arrangements. Directive 2011/16/EU, as amended by Directive (EU) 2018/822. Article 8.º-AB. Validity. Legal professional privilege of the lawyer. Exemption from the reporting obligation for the benefit of lawyer-intermediaries subject to legal professional privilege. Obligation on that lawyer-intermediary to notify any other intermediary who is not his or her client of that intermediary’s reporting obligations. Articles 7.º and 47.º of the Charter of Fundamental Rights of the European Union.
“The paragraph 5 of the Article 8.º-AB of Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC, as amended by Council Directive (EU) 2018/822 of 25 May 2018, is invalid in the light of Article 7.º of the Charter of Fundamental Rights of the European Union, in so far as the Member States’ application of that provision has the effect of requiring a lawyer acting as an intermediary, within the meaning of paragraph 21 of the Article 3.º of that directive, as amended, where he or she is exempt from the reporting obligation laid down in paragraph 1 of Article 8ab of that directive, as amended, on account of the legal professional privilege by which he or she is bound, to notify without delay any other intermediary who is not his or her client of that intermediary’s reporting obligations under paragraph 6 of that Article 8.º-AB.”.
Judgment of the Court of Justice (Third Chamber), of December 8, Case no. C-348/21: Reference for a preliminary judgment. Judicial cooperation in criminal matters. Directive (EU) 2016/343. Strengthening certain aspects of the presumption of innocence and the right to be present at the trial in criminal proceedings. Paragraph 1 of the Article 8.º. Right of the accused to appear in person at the trial. Paragraph 2 of the Articles 47.º and 48.º of the Charter of Fundamental Rights of the European Union. Right to a fair trial and rights of defence. Examination of prosecution witnesses in the absence of the accused and his lawyer during the pre-litigation stage of the criminal proceedings. Impossibility of examining the prosecution witnesses during the judicial phase of those proceedings. National legislation which allows a criminal court to base its decision on the previous testimony of those witnesses.
“Paragraph 1 of the Article 8.º of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings, read in conjunction with the second paragraph of Article 47.º and Paragraph 2 of the Article 48.º of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that. Paragraph 2 of the Article 47.º of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that: precluding the application of national legislation which allows a national court, where it is not possible to examine a prosecution witness at the judicial stage of criminal proceedings, to base its decision on the guilt or innocence of the accused on the testimony of that witness obtained at the hearing before a judge in the course of the pre-litigation stage of those proceedings, but without the participation of the accused or his lawyer unless there is a serious reason justifying the non-appearance of the witness at the judicial stage of the criminal proceedings, the testimony of that witness does not constitute the sole or determining ground for convicting the accused and there are sufficient elements of compensation to counterbalance the difficulties caused to that person and his lawyer by taking that testimony into account.”.
Judgment of the Court of Justice (Ninth Chamber), of December 08, Case no. C-600/21: Reference for a preliminary ruling. Consumer protection. Unfair terms in consumer contracts. Directive 93/13/EEC. Paragraph 1 of the Article 3.º. Article 4.º. Criteria for assessing whether a term is unfair. Term relating to the accelerated repayment of a loan agreement. Contractual dispensation from the requirement for a formal written demand.
“1) The judgment of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60), must be interpreted as meaning that the criteria it establishes for assessing the unfairness of a contractual term, as provided for in paragraph 1 of the Article 3.º of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, in particular the significant imbalance in the rights and obligations of the parties to the contract which that term causes to the detriment of the consumer, cannot be understood either as being cumulative or as being alternative, but must be understood as forming part of all the circumstances surrounding the conclusion of the contract at issue, which the national court must examine in order to assess the unfairness of a contractual term, as provided for in paragraph 1 of the Article 3.º of Directive 93/13.
2) The paragraph 1 of the Article 3.º and Article 4.º of Directive 93/13 must be interpreted as meaning that a delay of more than 30 days in the payment of an instalment of a loan may, in principle, in the light of the term and amount of the loan, constitute, in itself, sufficiently serious non-compliance with the loan agreement, as referred to in the judgment of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60).
3) The paragraph 1 of the Article 3.º and Article 4.º of Directive 93/13 must be interpreted as precluding, save where paragraph 2 of the Article 4.º of that directive applies, the parties to a loan agreement from inserting into that agreement a term which expressly and unequivocally provides that the accelerated repayment procedure in respect of that agreement may be triggered automatically in the event that the delay in payment of an instalment exceeds a certain period, in so far as that term has not been individually negotiated and creates a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”.
Judgment of the Court of Justice (Second Chamber), of December 22, Case no. C‑83/21: Reference for a preliminary ruling. Internal market. Paragraph 2 of the Article 114.º TFEU. Exclusion of fiscal provisions. Directive 2000/31/EC. Information society services. Electronic commerce. Online property intermediation platform. Subparagraph a), paragraph 1 of the Article 1.º. Exclusion of the ‘field of taxation’. Directive 2006/123/EC. Services in the internal market. Paragraph 3 of the Article 2.º. Exclusion of the ‘field of taxation’. Directive (EU) 2015/1535. Subparagraph e) and f) of paragraph 1 of the Article 1.º. Concepts of ‘rule on services’ and ‘technical regulation’. Obligation on providers of property intermediation services to collect and transmit to the tax authorities data on rental contracts and to withhold tax at source on the payments made. Obligation on service providers that do not have a permanent establishment in Italy to appoint a tax representative. Article 56.º TFEU. Restrictive nature. Legitimate objective. Disproportionate nature of the obligation to appoint a tax representative. Third paragraph of Article 267.º TFEU. Prerogatives of a national court or tribunal against whose decisions there is no judicial remedy under national law.
“1) The Article 56.º TFEU must be interpreted as meaning that: first, as regards rentals of a maximum duration of 30 days in respect of immovable property situated in the territory of a Member State, it does not preclude legislation of that Member State requiring providers of property intermediation services – irrespective of their place of establishment and the manner in which they intervene – to collect and then transmit to the national tax authority the data relating to the rental contracts concluded following their intermediation, and, where those service providers have received the corresponding rents or consideration or intervened in their collection, to withhold at source the amount of tax due on the sums paid by the lessees to the lessors and to pay it to the Treasury of that Member State; and second, as regards rentals of a maximum duration of 30 days in respect of immovable property situated in the territory of a Member State, it precludes legislation of that Member State requiring providers of property intermediation services, where those providers have received the corresponding rents or consideration or have intervened in their collection and where they reside or are established in the territory of a Member State other than the State of taxation, to appoint a tax representative which resides or is established in the territory of the Member State of taxation.
2) The Article 267.º TFEU must be interpreted as meaning that, where a question concerning the interpretation of EU law is raised by one of the parties to the main proceedings, the determination and formulation of the questions to be referred to the Court is a matter for the national court alone and those parties may not impose or alter their wording.”.
Judgment of the Court of Justice (Eighth Chamber), of December 22, Case no. C‑553/21: Reference for a preliminary ruling. Directive 2003/96/EC. Taxation of energy products and electricity. Fourth indent of Article 5.º. Differentiated rates of excise duty according to whether those products are for business or non-business use. Optional tax exemptions and reductions. Submission of an application for an optional tax reduction after the expiry of the period prescribed for that purpose but before the expiry of the period for assessment of the tax concerned. Principle of legal certainty. Principle of effectiveness – Principle of proportionality.
“The principle of effectiveness and the principle of proportionality, as a general principle of EU law, must be interpreted, in the context of implementing a provision such as that in the fourth indent of Article 5.º of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity – which allows Member States to apply, under certain conditions, differentiated rates of taxation between business and non-business use, for energy products and electricity referred to in that directive – as precluding national legislation under which the competent authorities of a Member State are required to reject, automatically and without exception, an application for tax relief lodged within the period for assessment of the tax at issue as laid down in national law, on the sole ground that the applicant failed to comply with the period prescribed by that law for the submission of such an application.”.
Judgment of the Court of Justice (Fifth Chamber), of December 22, Case no. C‑656/21: Reference for a preliminary ruling. Directive 2008/7/EC. Subparagraph a), Paragraph 2 of the Article 5.º. Indirect taxes on the raising of capital. Stamp duty on services relating to the marketing of shares in undertakings for collective investment in transferable securities.
“ The subparagraph a), paragraph 2 of the Article 5.º of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital must be interpreted as precluding national legislation which provides for the imposition of stamp duty on, first, the remuneration received by a financial institution from a common fund management company for the supply of marketing services for the purposes of new capital contributions aimed at the subscription of newly issued shares in funds and, second, the amounts which that management company receives from common funds in so far as those amounts include the remuneration which that management company has paid to financial institutions in respect of those marketing services.”.
III.2. Constitutional Court
Judgment of the Constitutional Court no. 843/2022, of December 20, Case no. 1283/2021:
“Under the terms and on the grounds set forth, it is decided: a) To deem unconstitutional, for violation of the principle of legality resulting from paragraph 1 of the Article 29.º of the Constitution of the Portuguese Republic, the rule that typifies the crime of mistreatment of a pet animal, contained in paragraph 3 of the Article 387.º of the Criminal Code, in the wording introduced by Law no. 39/2020, 18 August, in conjugation with paragraph 3 of the Article 389.º of the Criminal Code, in the wording introduced by Law no. 39/2020, 18 August, in conjugation with paragraph 4 of the Article 389.º of the Criminal Code. No. 3 of the Criminal Code, in the wording introduced by Law no. 39/2020, of 18 August, in conjunction with paragraphs 1 and 3 of the Article 389.º, of the Criminal Code, also in the wording introduced by Law no. 39/2020, of 18 August; and, consequently, b) To dismiss the present appeal.”.
Judgment of the Constitutional Court no. 857/2022, of December 21, Case no. 368/2022:
“Under the terms and on the grounds set forth, it is decided: a) To deem unconstitutional, for violation of paragraph 1 of the Article 219.º of the CRP, the rule that results from the joint interpretation of paragraph 1 of Article 11.º and paragraph 4 of the Article 25.º of the Procedural Code of the Administrative Courts (approved by Law no. 15/2002, of 22 February, in the wording given by Law no. 118/2019, of 17 September), according to which, in administrative courts, when the State is sued or when several ministries are sued in the same action, the representation of the State by the State’s representative should be ruled as unconstitutional. No. 118/2019, of September 17), according to which, in administrative courts, when the State is sued or in the same action several ministries are sued, the representation of the State by the Public Prosecution Service is a possibility, being the summons solely addressed to the State Legal Skills Centre, which ensures its transmission to the competent services and coordinates the terms of the respective intervention in court; and, consequently, b) To dismiss the present appeal.”.
Judgment of the Constitutional Court no. 858/2022, of December 21, Case no. 662/2021:
“Under the terms and on the grounds set forth, it is decided: a) Declare unconstitutional, for violation of the principle of fiscal equality, inherent in Article 13.º of the Constitution, the rule extracted from paragraph 9 of Article 78.º of the Personal Income Tax Code, as amended by Law no. 82-E/2014, of 31 December, and until the entry into force of Law no. 106/2017, of 4 September, according to which whenever the same dependent is included in more than one tax return, the value of the deductions from taxable income provided for in the Personal Income Tax Code by reference to dependents is reduced to the amount of the taxable income provided for in the Personal Income Tax Code by reference to dependents. No. 106/2017, of September 4, according to which, whenever the same dependent is included in more than one income tax return, the amount of deductions to the collection provided for in the Personal Income Tax Code by reference to dependents is reduced to half, per taxpayer, without taking into consideration the effective taxpayer that, in compliance with the judicially homologated parental responsibility regulation agreement, supported the specific expenses with the dependent under joint custody deductible to the collection and in which percentage; and, consequently, b) To dismiss the present appeal.”.
III.3. Judicial Courts
Judgment of the Supreme Court of Justice, of December 06, Case no. 842/17.8T8PVZ.P1.S1: Banking Liability. Financial Intermediation. Duty of Information. Burden of Proof. Uniform Judgment of Jurisprudence. Guilt in Contrahendo. Nexus of Causality. Illicit Acts. Presumption of Guilt. Damage. Securities. Obligation to Compensate. Presuppositions.
“I – In financial intermediation, in addition to the duties of information deriving from the general principle of good faith, the legislator (CVM) enshrined specific duties of information, in view of the nature of the activity, especially in the case of a non-qualified investor, because the law requires a free and informed declaration, and the specific duty to provide information also covers the risk of the financial product itself (principle of transparency and investor protection).
II – The Bank, a financial intermediary, is liable in civil terms for breach of the duty to provide information when it proposes the subscription of a financial product, assuring that it is a guaranteed capital product, identical in all respects to a term deposit, inducing the client (non-qualified investor) to agree to invest on that basis, without having been informed beforehand of the type of product and the nature of the obligation, namely what the subordinated obligations consist of and the respective consequences.
III – Both the culpable breach of specific information duties at the time of entering into the financial intermediation contract and situations of negligent inducement in error through the supply of inaccurate information fall within the scope of pre-contractual liability.”.
Judgment of the Supreme Court of Justice, of December 15, Case no. 125/20.6T8TND.C1-A.S1: New Issue. Powers of the Supreme Court of Justice. Donation. Written Document. Signature. Nullity for Lack of Legal Form. Requirements.
“I. The alleged accidental incapacity of the donor at the time the donation contract was entered into is a new issue, and it is settled case-law of the STJ that appeals only seek to re-examine the decision on issues raised in due time, except when they are issues of knowledge of their own motion.
II. As to the issue of the alleged formal invalidity of the donation contract, in the case at hand, it was proven that it was the donor who signed the contractual document, adding her own name, and it was also proven that the same donor was physically weak and therefore only signed her first name.
III. On the other hand, it has also been proven that the same document contains the complete identification of the donor, indicating her full name, her Fiscal Number, her marital status, her place of birth and her address.
IV. Thus, it is verified that the signature complies with the legal requirements foreseen in art. 373, no. 1, of the CC, for which the donation was made by written document in the terms required by paragraph 2 of the Article 947.º of the CC, being the contract formally valid as understood by the appellate decision.”.
Judgment of the Supreme Court of Justice, of December 15, Case no. 56149/21.1YIPRT.L1.S1: Abnormal Change of Circumstances. Requirements. Resolution. Modification. Official Knowledge. Cognition Powers.
“I – The necessary request of the parties in order to act on the right regarding the termination or modification of the contract due to a change of circumstances (paragraph 1 of the Article 437.º of CCiv) cannot be superseded by the judge of his own motion.
II – The rule of paragraph 1 of the Article 437.º of the CCiv is not satisfied with the observation that the circumstances under which the contract was concluded have changed – it is necessary to correlate the change with the theory of risk, with the idea of inter-subjective cooperation, with contractual interpretation and with the principle of security, the latter aiming to maintain the contracted party as an expression of the principle of private autonomy.
III – It follows from the conjugation of the provisions of paragraphs 1 and 3 of the Article 5.º of the CPCiv that the court may qualify the facts alleged by the parties as it sees fit, but may only rule within the complex notion resulting from the conjugation of the alleged facts with the legal qualification given to them by the party, in the action or in defence.”.
Judgment of the Lisbon Court of Appeal, of December 15, Case no. 3864/18.8T8LSB.L2-4: Interim Salaries. Deductions. Unemployment Subsidy.
“As the Employer has not deducted from interim wages the amount earned as unemployment benefits in a certain period, it should not be ordered to reimburse the worker for the amounts claimed by Social Security.”.
Judgment of the Porto Court of Appeal, of December 07, Case no. 5011/22.2JAPRT-A.P1: Metadata. Traffic Data. Data stored by telecommunications operator. Obtaining Detailed Billing. Declaration of Unconstitutionality.
“I – The Constitutional Court having declared the unconstitutionality, with general mandatory force, of Articles 4.º, 6.º and 9.º of Law no. 32/2008 of 17 July (Law on the retention of data generated or processed in connection with the provision of electronic communications services), we cannot try to circumvent that ruling by “letting in through the window” that which it “closed the door to”; in other words, we cannot resort to other rules in order to achieve the same effect that would result from applying the rules that have been declared unconstitutional without those other rules containing those guarantees that are lacking in the latter and which led to that declaration of unconstitutionality.
II – It is therefore not legally possible to resort to the regimes of Articles 187.º and 189.º of the Code of Criminal Procedure (on real-time communications, not on the retention of data from past communications), Law no. 41/2008, of 18 August (on contractual protection in the context of relations between electronic communications service providers and their clients, a field distinct from criminal investigation) and Law no. 109/2009, of 15 September (Cybercrime Law), for this purpose.
III – The courts cannot substitute themselves for the legislator by suppressing omissions, which result in serious inconveniences for criminal investigation”.
Judgment of the Appeal Court of Porto, of 07 December, Case No. 431/20.0GBVNG.P1: Correction of Criminal Sentence. Reform of the Criminal Sentence as to costs.
“I – The Code of Criminal Procedure does not provide for the reformation of the sentence as to costs and the lack of such provision does not constitute a gap that must be filled with the application of rules of the civil procedure.
II – The reform of sentence as to costs does not constitute correction of the sentence admitted under the terms of Article 380.º of the Code of Criminal Procedure”.
III.4. Administrative and Tax Courts
Judgment of the Supreme Administrative Court, of 07 December, Case no. 01975/20.9BEPRT: Annulment of Sale. Electronic Auction. Suspension of the Sale. Deadline.
“The period for suspension of the sale referred to in fourth paragraph of the Article 264.º, of the Tax Procedure and Proceedings Code and ending on a non-business day does not transfer to the first following business day.”.
Judgment of the Supreme Administrative Court, of 07 December, Case no. 0494/18.8BEPRT: Special Taxation Regime. Group of Companies.
“I – The consecration of the Special Taxation Regime for Groups of Companies aimed to make a correspondence between an economic unit and a legal unit, the former being constituted by a dominant company and dominated companies.
II – The dominant company is an economic and legal element of the group and not an economic and legal element external to the group, submitting, in its capacity as the dominant company, but also and as a company belonging to the group, the income declaration and benefiting, in that capacity as a group element, from the special taxation regime under the same terms as those applied to controlled companies.
III – The rule-requirement relating to the non-existence of tax losses in the three years preceding that of application of the special taxation regime, set out in the fourth paragraph of the Article 69.º, first part, applies to both controlled companies and dominant companies.
IV – The legislator has only permitted one exception to the rule requirement referred to in I: companies that have reported losses in that period of time may be part of the group and benefit from the special tax regime provided that the dominant company has a 90% shareholding in the controlled company for more than two years”.
Judgment of the Supreme Administrative Court, of 15 December, Case no. 02142/11.8BELRS: Special Relationships. Transfer Pricing. Tax Benefits. Real Creation of Jobs.
“I – The Tax Administration may, under the provisions of Article 58.º of the “CIRC”, make corrections to the taxable income whenever, by virtue of special relations between the taxpayer and another person, submitted to or not to “IRC”, conditions different from those that, as a rule, are agreed upon between independent persons have been established in certain operations and these particular conditions have led to the profit ascertained on the basis of accounting being different from that which would have been ascertained if such special relations did not exist.
II – It is incumbent on the Tax Administration to allege and prove both the existence of special relations and the “normal circumstances” under which certain transactions take place, that is, the conditions under which, as a rule, those transactions take place between independent legal persons.
III – As the assessment of comparability of transactions, required by the third paragraph of the Article 4.º of Ministerial Order 1446-C/2001, is based on an economic criterion, the assessment issued under Article 58.º of the “CIRC” must be annulled if the tax authorities were unable to demonstrate that, in the specific case, the transactions present relevant economic and financial characteristics that are sufficiently similar to ensure the high degree of comparability legally required in order for corrections to be made to the taxable amount via the transfer pricing regime.
IV – The hermeneutics rules of tax law do not allow Article 17.º of “EBF” to be interpreted as meaning that, in cases where employment contracts that are eligible under the aforementioned Article end or are entered into during the tax period, the maximum limit of the increase provided for in the first paragraph should be restricted in proportion to the time the contracts have been in force.
V – In tax benefits that depend on the behaviour of the taxpayer, who may freely choose to fulfil the legally established conditions in order to enjoy them, the question of the principle of equality should be posed in relation to the conditions of access to the benefit and not in relation to the contours in which they are provided.
VI – There is no discriminatory treatment, nor even arbitrariness of the legal solution if the optimisation of the variable effects of the tax benefit is placed in the taxpayer’s availability”.
Judgment of the Southern Central Administrative Court, of December 06, Case no. 2176/04.9 BELSB: “IRC”. Interest Imputed by Spanish Bank Entity to its Branch in Portugal. Legal Personality. Tax Personality.
“I – The qualification as capital income is not presumed, being up to the Public Treasury the burden of proof of the verification of its assumptions.
II – Payments made by the branch to the parent company only constitute remuneratory interest subject to the possibility of being taxed under Corporate Income Tax, as capital income, insofar as they constitute income obtained at the expense of the capital lent to its Portuguese branch and not when they do not generate any income”.
Judgment of the Southern Central Administrative Court, of December 06, Case no. 1496/09.0BELRA: Termination of Tax Benefits. Debt of one of the Spouses.
“I – According to the fifth paragraph of the Article 14.º, of the “EBF”, the concession of a tax benefit ceases in the situation of debt of the taxable person, and if the debt was not subject to complaint, challenge or opposition with the provision of suitable guarantee, when required.
II – If the debt is the exclusive responsibility of one of the spouses, the provisions of the fifth paragraph of the Article 14.º do not apply when the other spouse (who has a personal tax benefit – fiscally relevant disability) has no responsibility for the payment of that debt”.
Judgment of the Southern Administrative Central Court, of December 06, Case no. 1124/22.9 BELRS: Guarantee. Valuation. Social shares.
“I – It is up to the Tax Authority, in the face of the concrete case, to ascertain the suitability of the guarantee offered in order to suspend the tax execution, suitability which should be assessed by the susceptibility of ensuring the payment of the enforced debt and the increased, should it be necessary to execute the guarantee (cf. Articles 169.º, 199.º and 217.º, of the “CPPT”, and Article 52.º, of the “LGT”).
II – Since shares held by the Executed Party in a company are offered to the Tax Authority as a pledge in favour of the latter, the method for determining the value of such shareholdings for the purposes of constituting a guarantee must be subject to that criterion, i.e. it must be, as far as possible, an appropriate method for approximating the realisation value of such shares to the value that (in execution of the guarantee) could result from their sale.
III – Therefore, the Tax Authority cannot, on the grounds that “if the tax legal system contains rules for determining the value of shareholdings and other securities, those rules must be observed by the Services when guarantees are accepted in tax enforcement proceedings”, in order to reduce “factors of subjectivity and conflict with taxpayers”, to make the stipulations of the Stamp Duty Code the criterion for the valuation of those shareholdings and, therefore, to consider the balance sheet, corrected with regard to the value of real properties that comprise the tangible fixed assets of the companies to which those shareholdings refer, for the respective NAV, all under the terms of Articles 15.º and 31.º of the Stamp Duty Code.
IV – This criterion is only required for the purposes of determining the taxable amount for the purposes of assessment of IS – a tax which falls within the types of tax on consumption or expenditure, with incidence on certain acts and contracts, provided for in the General Table attached to the Code – in the case of the transfer of shares free of charge and not for the purposes of determining the value of these shares for guarantee purposes, which should be as close as possible to the real value of the assets, i.e. the liquidity realisation value.
V – An appraisal cannot be confused when it is a question of assessing the suitability of the guarantee offered by the tax debtor in order to suspend the tax enforcement action with an appraisal when it is a question of determining the taxable amount as a quantitative expression of the taxable event”.
IV.1.1. Monographs and Periodic Publications
António Barroso Rodrigues. O Concurso de Responsabilidade Civil, Almedina, December 2022.
José Luís Saragoça. O Contrato de Transporte Internacional Rodoviário de Mercadorias – A Convenção CMR, Almedina, December 2022.
José Casalta Nabais. Por um Estado Fiscal Suportável – Estudos de Direito Fiscal – Vol. VI, Almedina, December 2022.
Rita Sineiro Andrade Aroso Duarte. A crise do Estado de Direito na União Europeia e o papel do TJUE, Almedina, December 2022.
Salvador da Costa. As Custas Processuais – Análise e Comentário, Almedina, December 2022.
Tiago Henrique Sousa. O Direito à Libertação do Fiador – Estudo sobre o direito de liberação do fiador por verificação de alterações sensíveis de riscos da fiança de direito civil, Almedina, December 2022.
IV.1.2. General Guidelines & Cia
Circular Letter no. 30252, of 2022-12-06, by order of the Subdirector-General of the Tax Management Area-VAT.
Subject: VAT – List of Gold Coins.
IV.2.1. Economy, Finance and Taxation
On 22 December 2022, the Council of Ministers approved, among other diplomas:
i)i) The decree-law that creates the Support System for the Reposition of Productive Capacities and Competitiveness;
ii) The decree-law that defines, for the year 2023, the tariffs and other values charged under the concession contracts for a set of multi-municipal water supply and sanitation systems
iii) The draft law that seeks to create a legal framework to encourage the creation and development of start-ups and scaleups, change the taxation regime of option plans for employees of start-ups and companies in the innovation sector, and adjust the system of tax incentives in business research and development.
IV.2.2. Industrial Property
INTA – International Trademark Association, in collaboration with the National Institute of Industrial Property, promoted a Seminar on Combating Online Counterfeiting in Portugal on December 6.
The European Union Intellectual Property Office (EUIPO) is now making available reports with consolidated case law of its Boards of Appeal, which can be consulted at the following link: https://euipo.europa.eu/ohimportal/en/boards-of-appeal.
The provisional statistical data regarding the applications and grants of Industrial Property Rights (IPR), updated to the month of November 2022, were published on 16 December. Of this statistical data, the following are noteworthy:
i) From January to November 2022, there was an increase of 3.9% in applications for national inventions compared to applications filed in 2021. As regards the concessions of national inventions, there was a decrease of 32.6%, compared to the same period last year;
ii) The total number of International Patent (PCT) and European Patent applications fell by 7.9%, just as the number of European Patent validations filed in Portugal in the last eleven months fell by 23.5% 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 15.9% compared to 2021. The number of concessions for national Trademarks and OSDCs also decreased compared to the previous year, with a decrease of 19.7%;
iv) With regard to International Brand Designations for study and national registration, according to World Intellectual Property Organization (WIPO) data, there was a 14.7% decrease;
v) Applications for Community Design originating in Portugal also fell by 40.3% compared to the previous year.
All the statistical reports (annual and half-yearly) and monthly data on applications and grants of Industrial Property Rights are available at the IP Observatory.
The National Innovation Agency (ANI) is organising, within the scope of the Tech4innov project, the Programme for the Promotion of Patent Applications in co-ownership with Companies. Applications must be made by sending an expression of interest to email@example.com by 6 January.
Applications for Industrial Property Rights (IPR), at a global level, remained high during the peak of the COVID-19 pandemic in 2020 and will skyrocket in 2021, according to the World Intellectual Property Organization (WIPO) Report, published in November this year. In this Report, Portugal stands out with regard to Geographical Indications (GIs) for agricultural products, taking 2nd place on a global scale, with a total of 2,052 GIs in force. In the wine and spirits category, Portugal has the most GIs in force (3,846).
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS