Newsletter – January 2023

drae-legal19

I. EDITORIAL – AMENDMENT TO THE COMBATING TERRORISM LAW, THE CRIMINAL CODE, THE CRIMINAL PROCEDURE CODE AND RELATED LEGISLATION; EXEMPTION FROM THE ATTEMPT OF CONCILIATION IN DIVORCE PROCEEDINGS WITHOUT CONSENT OF ONE OF THE SPOUSES IN CONVICTION CASES FOR A DOMESTIC VIOLENCE CRIME

The month of January was characterised, at the legislative level, by the publication of the Law no. 2/2023, of January 16, that completes the transposition of Directive (EU) 2017/541, amending the Combating Terrorism Law, the Criminal Code, the Criminal Procedure Code and related legislation and by the publication of the Law no. 3/2023, of January 16, which exempts the attempt of conciliation in divorce proceedings without consent of one of the spouses in conviction cases for a domestic violence crime, amending the Civil Code and the Civil Procedure Code.

In addition, at the legislative level, are worth highlighting:

In the field of case-law, it is worth mentioning the Judgment of the Constitutional Court no. 5/2023, of January 30, Case no. 5/2023, in which it was decided to “(…)(a) Rule on the unconstitutionality of the rule in paragraph f)of the Article 2.º, in conjunction with the rule in paragraph 1 of the Article 3.º, both of Decree no. 23/XV, on the grounds of breach of the principle of the determinability of laws, as a corollary of the principles of the democratic rule of law, of legality, in its dimension of the reservation of law, and of legal certainty and the protection of confidence, arising from the combined provisions of Articles 2 and paragraph 1 of the 165.º of the Constitution. In the light of the inviolability of human life enshrined in article 24, no. 1, and article 165, no. 1, paragraph b), of the Constitution of the Portuguese Republic; consequently; (b) To pronounce that the rules contained in articles 5, 6 and 7 of the same Decree are unconstitutional; (c) To rule that the rules set out in article 28 of the same Decree are unconstitutional “in the part that they amend articles 134, no. 3, 135, no. 3 and 139, no. 2 of the Criminal Code.”.

Finally, in Miscellaneous, of note are the approval of the proposal for the law that creates the new legal regime for sports companies and the decree-law that broadens the personal scope of access to the public capitalization regime, as well as to the respective retirement certificate fund.

II. LEGISLATION

Rectification Declaration no. 1-A/2023, of January 03: Rectifies Law no. 24-D/2022, of 30 December, which approves the State Budget for 2023.

https://files.dre.pt/1s/2023/01/00201/0000200089.pdf

Ordinance no. 7-A/2023, of January 03: Establishes the average value of construction per square metre, for the purposes of article 39 of the Municipal Property Tax Code, to be in force in the year 2023.

https://files.dre.pt/1s/2023/01/00201/0009000090.pdf

Ordinance no. 8/2023, of January 04: Approves the Model 10 Declaration, Income and Retentions – Residents, and respective instructions for filling in.

https://files.dre.pt/1s/2023/01/00300/0000300019.pdf

Ordinance no. 17/2023, of January 05: Extends the deadline set in article 1 of Ministerial Order nr. 252/2022 of October 06.

https://files.dre.pt/1s/2023/01/00400/0000400004.pdf

Rectification Declaration no. 1-B/2023, of January 06: Rectifies Decree-Law no. 84-C/2022, of 9 December, which transposes Directive (EU) 2019/520, on the interoperability of electronic road toll systems.

https://files.dre.pt/1s/2023/01/00501/0000200003.pdf

Resolution of the Assembly of the Republic no. 1/2023, of January 06: Recommends the Government to evaluate the implementation of restorative justice principles for criminal mediation.

https://files.dre.pt/1s/2023/01/00500/0000300003.pdf

Law no. 1/2023, of January 09: Ensures the maintenance of protection for shops with history that have transitioned to the NRAU until 31 December 2027, amending Law no. 42/2017, of June 14.

https://files.dre.pt/1s/2023/01/00600/0000300003.pdf

Ordinance no. 24-A/2023, of January 09: Undertakes the annual update of occupational accident pensions for the year 2023.

https://files.dre.pt/1s/2023/01/00601/0000200002.pdf

Ordinance no. 24-B/2023, of January 09: Performs the annual update of pensions for the year 2023.

https://files.dre.pt/1s/2023/01/00601/0000300011.pdf

Ordinance no. 24-C/2023, of January 09: Determines the revaluation coefficients of the annual remuneration of pensions for the year 2022.

https://files.dre.pt/1s/2023/01/00601/0001200015.pdf

Resolution of the Council of Ministers no. 2-A/2023, of January 13: Establishes a questionnaire prior to the integration of new members in the Government.

https://files.dre.pt/1s/2023/01/01001/0000200017.pdf

Ordinance no. 30/2023, of January 13: Establishes the value of the correction factor of the contributory index provided for in article 79-A of the Regulations of the Provident Fund for Lawyers and Solicitors, approved by Decree-Law no. 119/2015, of 29 June, for the year 2023.

https://files.dre.pt/1s/2023/01/01000/0001100011.pdf

Decree-Law no. 4-A/2023, of January 16: Extends the term of the administrative contracts for the management of the activity of technical inspection of motor vehicles and their trailers.

https://files.dre.pt/1s/2023/01/01101/0000200003.pdf

Law no. 2/2023, of January 16: Completes the transposition of Directive (EU) 2017/541, amending the Combating Terrorism Law, the Criminal Code, the Criminal Procedure Code and related legislation.

https://files.dre.pt/1s/2023/01/01100/0000200019.pdf

Law no. 3/2023, of January 16: Exempts the attempt of conciliation in divorce proceedings without consent of one of the spouses in cases of conviction for a domestic violence crime, amending the Civil Code and the Civil Procedure Code.

https://files.dre.pt/1s/2023/01/01100/0002000021.pdf

Rectification Declaration no. 2/2023, of January 18: Rectifies Decree-Law no. 87-A/2022, of 29 December, which 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 for charging toll fees to users.

https://files.dre.pt/1s/2023/01/01300/0000900009.pdf

Resolution of the Assembly of the Republic no. 4/2023, of January 19: Recommends that the Government ensure the right to be forgotten, making the provisions of Law no. 75/2021 of 18 November operational.

https://files.dre.pt/1s/2023/01/01400/0001100011.pdf

Ordinance no. 31-B/2023, of January 19: Updates the annual reference value of the basic component and the annual reference value of the supplement to the social benefit for inclusion, as well as the maximum annual limit for accumulation of the basic component with income from work.

https://files.dre.pt/1s/2023/01/01401/0000400005.pdf

Ordinance no. 31-A/2023, of January 19: Updates the reference value of the solidarity supplement for the elderly, as well as the solidarity supplement for the elderly assigned.

https://files.dre.pt/1s/2023/01/01401/0000200003.pdf

Ordinance no. 32/2023, of January 20: Updates the value of the SII for the year 2023.

https://files.dre.pt/1s/2023/01/01500/0000600006.pdf

Law no. 6/2023, of January 24: Authorises the Government to legislate on the posting of drivers in the road transport sector, transposing Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 and creating the respective sanctioning regime.

https://files.dre.pt/1s/2023/01/01700/0000200003.pdf

Decree Law no. 5/2023, of January 25: Establishes the governance model of European funds for the 2021-2027 programming period.

https://files.dre.pt/1s/2023/01/01800/0000200049.pdf

Ordinance no. 34/2023, of January 25: Updates the amounts of child and youth family allowance, prenatal family allowance, funeral allowance, disability allowance, allowance for assistance from a third person and reinforces the increases of family allowance in single parenthood situations.

https://files.dre.pt/1s/2023/01/01800/0005000052.pdf

Decree-Law no. 6/2023, of January 27: Strengthens the incentive system “Support for Gas-Intensive Industries”.

https://files.dre.pt/1s/2023/01/02000/0000300011.pdf

III. CASE-LAW

III.1. Court of Justice of the European Union

Judgment of the Court of Justice (Second Chamber), of January 12, Case no. C583/22: Reference for a preliminary ruling. Area of freedom, security and justice. Police and judicial cooperation in criminal matters. Framework Decision 2008/675/JHA. Paragraph 1 of the Article 3.º . Principle of assimilation of earlier convictions handed down in another Member State. Obligation to ensure that the effects attached to those convictions are equivalent to those attached to previous national convictions. National rules concerning subsequent formation of a cumulative sentence. Multiple offences. Determination of an aggregate sentence. Maximum of 15 years for non-life custodial sentences. Paragraph 5 of the Article 3.º. Exception. Offence committed before the handing down or execution of sentences in another Member State.

Summary:

“1) Paragraph 1 and 5 of the Article 3.º of Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings must be interpreted as meaning that a Member State is not required, in criminal proceedings brought against a person, to attach to previous convictions handed down in another Member State, against that person and in respect of different facts, effects equivalent to those attached to previous national convictions in accordance with the rules of the national law concerned relating to the formation of a cumulative sentence where, first, the offence giving rise to those previous proceedings was committed before the previous convictions were handed down and, secondly, taking account of the previous convictions in accordance with those rules of national law would prevent the national court hearing the proceedings from imposing a sentence that could be executed against the person concerned.

2) The second subparagraph of paragraph 5 of the Article 3.º of Framework Decision 2008/675 must be interpreted as meaning that the taking into account of previous convictions handed down in another Member State, within the meaning of that provision, does not require the national court to establish and give specific reasons for the disadvantage resulting from the impossibility of imposing a subsequent cumulative sentence which is laid down for earlier national convictions.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62022CJ0583

Judgment of the Court of Justice (Fourth Chamber), of January 12, Case no. C-395/21: Reference for a preliminary ruling. Unfair terms in consumer contracts. Directive 93/13/EEC. Contract for the provision of legal services concluded between a lawyer and a consumer. Paragraph 2 of the Article 4.º. Assessment of the unfairness of contractual terms. Exclusion of terms relating to the main subject matter of the contract. Term providing for the payment of lawyers’ fees on the basis of an hourly rate. Paragraph 1 of the Article 6.º. Powers of the national court when dealing with a term considered to be ‘unfair’.

Summary:

“1) Paragraph 2 of the Article 4.º of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, as amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011, must be interpreted as meaning that a term in a contract for the provision of legal services concluded between a lawyer and a consumer, which sets the cost of the services provided on the basis of an hourly rate, is covered by that provision.

2) Article 4(2) of Directive 93/13, as amended by Directive 2011/83,must be interpreted as meaning that a term in a contract for the provision of legal services concluded between a lawyer and a consumer which sets the price of those services on the basis of an hourly rate, without the consumer being provided, before the conclusion of the contract, with information that enables him or her to take a prudent decision in full knowledge of the economic consequences of concluding that contract, does not satisfy the requirement of being drafted in plain intelligible language, within the meaning of that provision.

3) Article 3(1) of Directive 93/13, as amended by Directive 2011/83, must be interpreted as meaning that a term in a contract for the provision of legal services concluded between a lawyer and a consumer, which sets the price of those services on the basis of an hourly rate and therefore falls within the main subject matter of that contract, is not to be considered unfair simply on the ground that it does not satisfy the requirement of transparency laid down in Article 4(2) of that directive, as amended, unless the Member State whose national law applies to the contract in question has, in accordance with Article 8 of that directive, as amended, expressly provided for classification as an unfair term simply on that ground.

4) Paragraph 1 of the Article 6.º and Paragraph 1 of the Article 7.º of Directive 93/13, as amended by Directive 2011/83, must be interpreted as not precluding the national court, where a contract for the provision of legal services concluded between a lawyer and a consumer is not capable of continuing in existence after a term, found to be unfair, which sets the price of the services on the basis of an hourly rate has been removed and those services have already been provided, from restoring the situation in which the consumer would have been in the absence of that term, even if, as a result, the seller or supplier does not receive any remuneration for the services provided. If the invalidity of the contract in its entirety would expose the consumer to particularly unfavourable consequences, which it is for the referring court to ascertain, those provisions do not preclude the national court from remedying the invalidity of that term by replacing it with a supplementary provision of national law or a provision of national law applied by mutual agreement of the parties to that contract. On the other hand, those provisions preclude the national court from replacing the unfair term that has been annulled with a judicial assessment of the level of remuneration due for those services.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62021CN0395

Judgment of the Court of Justice (Fifth Chamber), of January 19, Case no. C-680/20: Reference for a preliminary ruling. Competition. Article 102.º TFEU. Dominant position. Imputation, to the producer, of actions of its distributors. Existence of contractual links between the producer and the distributors. Concept of ‘economic unit. Scope. Abuse. Exclusivity clause. Need to demonstrate the effects on the market.

Summary:

“1) Article 102.º TFEU must be interpreted as meaning that the actions of distributors forming part of the distribution network for goods and services of a producer in a dominant position may be imputed to that producer if it is established that those actions were not adopted independently by those distributors, but form part of a policy that is decided unilaterally by that producer and implemented through those distributors;

2) Article102 TFEU must be interpreted as meaning that, where there are exclusivity clauses in distribution contracts, a competition authority is required, in order to find an abuse of a dominant position, to establish, in the light of all the relevant circumstances and in view of, where applicable, the economic analyses produced by the undertaking in a dominant position as regards the inability of the conduct at issue to exclude competitors that are as efficient as the dominant undertaking from the market, that those clauses are capable of restricting competition. The use of an ‘as efficient competitor’ test is optional. However, if the results of such a test are submitted by the undertaking concerned during the administrative procedure, the competition authority is required to assess the probative value of those results.”.

https://eur-lex.europa.eu/legal-content/PT/TXT/?uri=CELEX:62020CJ0680

III.2. Constitutional Court

Judgment of the Constitutional Court no. 5/2023, of January 30, Case no. 5/2023:

For the reasons set out above, the Court decides, by reference to Decree no. 23/XV of the Assembly of the Republic, published in the Diário da Assembleia da República, Series II-A, no. 133 – Supplement, of 21 December 2022, and sent to the President of the Republic for promulgation as law:

(a) Rule on the unconstitutionality of the rule in paragraph f)of the Article 2.º, in conjunction with the rule in paragraph 1 of the Article 3.º, both of Decree no. 23/XV, on the grounds of breach of the principle of the determinability of laws, as a corollary of the principles of the democratic rule of law, of legality, in its dimension of the reservation of law, and of legal certainty and the protection of confidence, arising from the combined provisions of Articles 2 and paragraph 1 of the 165.º of the Constitution. In the light of the inviolability of human life enshrined in article 24, no. 1, and article 165, no. 1, paragraph b), of the Constitution of the Portuguese Republic; consequently

(b) To pronounce that the rules contained in articles 5, 6 and 7 of the same Decree are unconstitutional;

(c) To rule that the rules set out in article 28 of the same Decree are unconstitutional “in the part that they amend articles 134, no. 3, 135, no. 3 and 139, no. 2 of the Criminal Code;

(d) Not to rule on the unconstitutionality of the other rules whose consideration was requested.“.

https://www.tribunalconstitucional.pt/tc/acordaos/20230005.html

III.3. Judicial Courts

Judgment of the Supreme Court of Justice, of January 10, Case no.  2857/19.2T8OER.L1.S1: Lease contract. Eviction proceedings. Urban lease. Duration. Fixed term. Formal Business. Interpretation of the will. Contractual clause. Theory of the impression of the addressee.

Summary:

“I. The urban lease contract entered into under the Urban Lease Regime is formal and this formal nature determines that the declaration contained therein cannot be valid with a meaning that does not have a minimum of correspondence in the text of the respective document, even if imperfectly expressed (Article 238, no. 1 of the Civil Code).

II. With regard to urban residential leases, article 98 no. 1 of the Urban Lease Regime, included in subsection I on limited duration agreements, of section VI of Chapter II, provided that the parties could stipulate a term for the effective duration of the urban residential lease, provided that the respective clause was inserted in the written text of the agreement, signed by the parties.

III. It is not necessary to resort to any conventional formula in order to understand that the parties intended to subject a certain urban lease contract to the limited duration regime, it being required, however, that it is clear from the contractual text that the parties, directly or indirectly, intended to subject the contract to the limited duration regime.”.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/fa65786558bdf49c80258934004dc442?OpenDocument

Judgment of the Supreme Court of Justice, of January 12, Case no. 2930/18.4T8BRG.G1.S2-A: Appeal for uniformity of jurisprudence. Nullity. Time limit for filing the appeal.

Summary:

I- Such absolute lack of grounds integrates the provision of subparagraph b) of paragraph 1 of the Article 615.º of the CPC;

II- An appeal for the uniformization of jurisprudence which is lodged after the 30-day time limit, as from the date on which the judgment under appeal becomes final and unappealable, is untimely.”.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/bfd111985d41af1e8025893600336efa?OpenDocument

Judgment of the Supreme Court of Justice, of January 17, Case no. 1320/14.2TMPRT.P1.S1: Complaint for conference. Review appeal. Admissibility of appeal. Single decision. Rejection of appeal. Offence of res judicata.

Summary:

The rule of subparagraph a) of the paragraph 2 of the article 629.º CPC on the admissibility of the appeal, only applies to cases in which there is a violation of res judicata, but no longer to situations in which in the appealed decision the exception or authority of res judicata has been affirmed.“.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/9b0adab3df5fae9d802589410048c8fc?OpenDocument

Judgment of the Supreme Court of Justice, of January 17, Case no. 7135/20.1T8LSB.L1.S1: Urban lease. Landlord. Tenant. Renewal. Term. Opposition to renewal. Time limit. Application of law over time.

Summary:

I. Law no. 13/2019, of February 12 aims to establish a set of measures with the purpose of correcting situations of imbalance between tenants and landlords, favouring the position of the former, by reinforcing the security and stability of the urban lease.

II. As the contract was entered into prior to the entry into force of that legal diploma, and despite the fact that the new law is applicable to it, the joint interpretation of these two normatives, Article 1096.º and paragraph 3 of the Article 1097.º of the Civil Code, is required.

III.As the first renewal of the housing lease agreement entered into between the parties (which took place on 1/02/2019, the date on which the initial one-year term agreed upon for its duration was completed) was still carried out under the legal regime in force prior to the entry into force of the above-mentioned Law no. 13/2019, the subsequent renewal of the housing lease agreement took place on 1/02/2019. The subsequent renewal (which would take place on 1/02/2020, since the renewal that took place on 1/02/2019 – the first one – was for one year, under the contractual stipulation contained in Clause Three of the contract entered into between the parties on 7/02/2018, a stipulation permitted by paragraph 1 of the article 1096.º of the Civil Code. (paragraph 1 of the article 1096.º of the Civil Code, in the wording introduced by the then current Law no. 31/2012) escaped the mandatory discipline instituted by the same Law no. 13/2019 for the 1st renewal of housing leases with a fixed term.

IV. Therefore, the opposition to that 2nd renewal, communicated by the landlord to the tenant by letter dated 5/07/2019 and received on 7/07/2019, did not cease to have effect, since it was made in compliance with the prior notice required by subparagraph b) of the paragraph 1 of the article 1097.º of the Civil Code, thus preventing the renewal (for another year) of the lease on 1/02/2020.”.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/2052fa7fd03287148025894100399c6b?OpenDocument

Judgment of the Supreme Court of Justice, of January 19, Case no. 4060/19.2T8LRS.L1.S1: Accompanied Minor. Family Council. Beneficiary. Autonomy of Will. Violation of Law. International Law. Interpretation of Law.

Summary:

I. The RJMA enshrines the criterion of the primacy of the beneficiary’s will not only in the choice of the accompanying person, but also of the people who are to cooperate with him, supervise his actions and replace him in his absences and impediments, which includes the members of the Family Council and, in particular, the guardian.

II. If the judicial decision did not consider that the beneficiary did not have sufficient capacity to understand the act of choosing the members of the Family Council, by appointing as “protutor” a subject, against the express will of the beneficiary, it violated the legal provisions of the RJMA, which must be interpreted in light of the contents of the United Nations Convention on the Rights of Persons with Disabilities.”.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/f928078b9b63bce1802589400059990b?OpenDocument

Judgment of the Supreme Court of Justice, of January 19, Case no. 283/21.2YHLSB-C.L1.S1: Precautionary Procedures. Testimony of Party. Failure to Appear. Denial of Res judicata. Opposition of Judgment. Requirement. Fundamental Question of Law. Admissibility of Appeal. Appeal of Review. Object of the Appeal. Nullity of Judgment. Remittance of the Case to the Appealed Court.

Summary:

“I. The order that, assessing the impossibility of the attendance of deponents, whose absence it considers to be justified, and considering, furthermore, reasons of urgency of the procedure and the need to issue a final decision, denies the designation of a new date for the continuation of the hearing, in order to provide the depositions, shall not be considered as refusal of a means of evidence (statement of the party).

II. There is, through this order, no offense of res judicata regarding the previous order that admitted the depositions of the parties, if the assumptions of the legal admissibility of such depositions are not questioned or reviewed.

III. For there to be opposition of judgments, there must be an identity between the question of law examined in the judgment of the Appeals Court that is the object of the appeal and the one that serves as a counterpoint.

IV. If, in the context of a precautionary procedure, an appeal is lodged on the basis of an offence against res judicata and a contradiction in jurisprudence, the Supreme Court of Justice will only consider those matters and not other issues that may be alleged, since that is all that is permitted by the rule that, in such cases, extends the possibility of appeal.”.

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/fef2011942fb9ec880258940005a0c37?OpenDocument

Judgment of the Lisbon Court of Appeal, of , Case no. 519/10.5TYLSB-F.L1-1: Costs.

Summary:

“The five-year limitation period for the claim for costs provided for in paragraph 1 of the article 37.º of the Rules on Court Fees starts to run as from the date on which the judgment awarding the costs becomes final and unappealable, and the fact that the registry was late in drawing up the bill of costs does not have any influence on the respective counting, since failure to do so does not constitute a cause to suspend the limitation period.”.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/0e2b4ff9bf4ebb8e80258939004005d7?OpenDocument

Judgment of the Porto Court of Appeal, of January 10, Case no. 1856/19.9T8AGD-A. P3: Documentary Evidence. Private Document. Credit Assignment Contract. Execution for Payment of Amount Certain. Active Legitimacy.

Summary:

“”I – Documents without full evidential value are subject to free appraisal – all documents other than authentic or private documents whose authorship is recognized (those and these have full evidential value – articles 371.º and 376.º of the CC, respectively), provided they are contested by the party against whom they are presented, will see their evidential value depend on the free appraisal of the judge.

II – The impugnation of the private document does not determine, therefore, that it cannot be recognized as having evidential value, but rather implies that it is subject to the judge’s free appraisal.

III – It is demonstrated that the execution debtor succeeded (by an inter vivos act – contract of assignment of credits) the creditor in the active title of the enforceable obligation, his active legitimacy must be recognized – he succeeded (by an inter vivos act) the one who in the title given for the execution appears as a creditor.

IV – In relation to the debtor, who does not have to be a party to the contract, the effectiveness of the assignment depends on notification or acceptance; notification may be judicial or extrajudicial, either by the assignor or by the assignee.

V – Notification of the assignment to the debtor (paragraph 1 of the article 583.º of the CC) can be made by summons for the execution that the creditor-assignee proposes against the debtors with a view to the coercive realisation of the assigned credit.”.

http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/b2f488b5963690fe8025894200502692?OpenDocument

Judgment of the Porto Court of Appeal, of January 10, Case no. 4040/18.5T8AVR.P1: Private Limited Company. Liability of the Manager. Unjust enrichment.

Summary:

“”I – If a manager fails to prove that the lack of timely payment of taxes and social security contributions was not due to his own fault, he is liable for the resulting damaging consequences for the commercial company he manages.

II – The obligation to make restitution arising from unjust enrichment only exists when someone, without justifiable cause, enriches himself at the expense of another.

III – The absence of a justifiable cause, as a requirement of unjust enrichment, occurs when unjust enrichment has no reason to exist in the legal system in which it occurs, being contrary to the values it protects”.

IV – This is not the case when the manager of a commercial company has agreed to perform these functions free of charge, to incur expenses with the objective of increasing the value of the company and to acquire part of the company, as agreed with one of the partners.”.

http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/cde1c741c45ffaa88025894200424947?OpenDocument

Judgment of the Porto Court of Appeal, of January 10, Case no. 3682/21.6T9MAI.P1: License for points. Withdrawal of Driving Licence. Defensive Rights of the Defendant. Unconstitutionality.

Summary:

“Since the loss of points on a driving licence as a result of a conviction for driving a vehicle and the withdrawal of that licence as a result of the accumulation of those losses are automatic effects arising from the law, there is no provision for notification of those effects and the decision to withdraw the licence may be challenged, under the general terms, it is not apparent that there is, under those rules, any breach of the right to adversarial proceedings or of the defendant’s right of defence enshrined in paragraph 10 of the article 32.º of the Constitution.”.

http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/7ecfca3a7fc451718025894000388e2b?OpenDocument

Judgment of the Porto Court of Appeal, of January 11, Case no. 158/20.2T8MTS.P1: International Contract. Applicable Law. Agreed Wage. Interpretation of Clause.

Summary:

“I – Nothing prevents the salary from being negotiated and provided for in a global annual amount, just as it is not imperative that the payment of holiday and Christmas subsidies be paid all at once.

II – However, in an international contract, to which Irish law applies, in order to conclude that the payment of holiday and Christmas bonuses was agreed in the amount of the agreed salary, it is necessary that a normal declarant, placed in the position of the actual declarant, be able to deduct it from the agreement made.”.

http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/07f1f5b455234adb80258948004a99b6?OpenDocument

III.4. Administrative and Tax Courts

Judgment of the Supreme Administrative Court, of January 11, Case no. 0538/14.2BECBR: VAT. Taxable Person.

Summary:

“The literal content of subparagraph c), second paragraph of article 2.º of the Value Added Tax Code (CIVA) leaves no doubts, reservations, in the statement that “taxable persons”/debtors of the tax (VAT) are, among others, natural persons who mention it “unduly” on an invoice (or equivalent document), there being no need to, investigate and assess the case-by-case reasons for the inclusion, in the invoice/document, of a specific amount by way of VAT, particularly as, in the extreme, this may not even be due, due to a wide range of circumstances, related to the persons involved and/or the economic/legal activity carried out. “.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/91667b36774f513a80258936003b05e8?OpenDocument

Judgment of the Supreme Administrative Court, of January 11, Case no. 0445/22.5BEALM: Tax Enforcement. Waiver of the obligation to provide a guarantee. Time limit.

Summary:

“I – The request for the waiver of the provision of a guarantee must be submitted, pursuant to first paragraph of Article 170.º of the “CPPT”, within 15 days of the presentation of the means of reaction (administrative or judicial), or, pursuant to paragraph 2 of the same article, “[w]hen the grounds for the waiver of the guarantee are supervening to the end of that period, the waiver must be requested within 30 days of its occurrence”.

II – For the purposes of the second paragraph of article 170.) of the “CPPT” and as set out in fourth paragraph of the article 54.º of the “LGT”, supervening facts will only be those that may comprise the only two grounds on which the guarantee waiver may be based: “irreparable risk” with the provision of the guarantee and “manifest lack of financial means revealed by insufficient seizable assets”.

III – A request to waive the requirement to provide a guarantee made more than 15 days after lodging the opposition to the tax enforcement action (in this case, some eight years later) and without any allegation that the grounds for waiver have arisen (the mere allegation that the attachment was made does not serve this purpose) should be dismissed on the grounds that it is out of time.

IV – Nothing authorises the interpretation of the law to the effect that the garnishee may at any time request that the guarantee be waived even if he does not invoke the supervening of the grounds on which he bases his claim”.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/c25f1ef4c4d4fe4380258936003902e1?OpenDocument

Judgment of the Supreme Administrative Court, of January 11, Case no. 0467/22.6BEAVR: Tax Enforcement. Annulment of Sale. Extinction. Company.

Summary:

“I – The registration of the winding up of the company executed at a time subsequent to the award of the seized property to the highest bidder in the sale by electronic auction, the deposit of the price and the payment of the Stamp Duty due, does not affect the validity of the sale.

II – As it is true that the partners come to occupy the position in the tax enforcement procedure that was occupied until then by the company, as results from Articles 162.º, 163.º  and 164.º of the” CSC”, their intervention is only required if any other procedural act is carried out in the enforcement that demands their intervention as successors of the executed company, and the issue of the deed of transfer is not one of these cases”.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/932d9e0e049e5e2380258935005babd3?OpenDocument

Judgment of the Southern Administrative Central Court, of January 11, Case no. 563/18.4BELRS: Capital Gains. Non-Residents. Principle of Primacy of Community Law.

Summary:

“I – By constitutional imperative the provisions of the Treaty governing the European Union prevail over the norms of ordinary national law, in the terms defined by the bodies of law of the Union, provided that they respect the fundamental principles of the democratic rule of law.

II-The applicable wording of the second paragraph of the Article 43.º of the “CIRS”, insofar as it provides for a limitation of taxation to 50% of capital gains realised only for residents in Portugal, not extended to non-residents, constitutes a restriction on the movement of capital, prohibited by Article 63.º TFEU, to which the Portuguese State is bound.

III – The aforementioned incompatibility of the rule with European Law cannot be considered to have been remedied by the optional regime introduced in Article 72.º of the “CIRS” by Law 67-A/2007 of 31 December”.

http://www.dgsi.pt/jtca.nsf/170589492546a7fb802575c3004c6d7d/8016ef622c9856d68025893b004fd42d?OpenDocument

Judgment of the Southern Central Administrative Court, of January 11, Case no. 1088/13.0BEALM: Reversion. Hearing. Notification.

Summary:

“I – Reversion is preceded by a hearing of the reverted party.

II – Notification for such exercise should be made by registered letter.

III – In this case, the Tax Administration voluntarily opted for a more demanding form of notification, using registered mail with acknowledgement of receipt (AR). Although the RA is not legally required in this case, there is nothing to prevent its use, which provides added guarantees in terms of communication, in addition to those already contained in the simple registration.

IV – As the first (and only) letter for notification of the draft reversion order was sent by registered letter with AR, we will have to invoke the legal norms applicable to this form of notification.

V – A reversion project sent by registered post with AR cannot be considered to have been notified, as there is no evidence of such a duly signed and dated notice, nor can it be demonstrated by any other means that the addressee was aware of the communication aimed at the exercise of the right to a prior hearing on the reversion”.

http://www.dgsi.pt/jtca.nsf/170589492546a7fb802575c3004c6d7d/a2d8653e2c5a57788025893b004e6b9f?OpenDocument

 

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

Alexandre Miguel Mestre. Direito do Desporto: Algumas Questões, Almedina, January 2023.

Ana Perestrelo de Oliveira. Smart Contracts, Risco e Codificação da Desvinculação ou Modificação Negocial, Almedina, January 2023.

António Dantas. Direito Processual das Contraordenações, Almedina, January 2023.

Edgar Valles. Arrendamento Urbano: Constituição e Extinção, Almedina, January 2023.

Filipe Cerqueira Alves. Justiça Fiscal Internacional e Tributação de Lucros de Grupos Multinacionais, Almedina, January 2023.

João Leal Amado. Escritos Laborais, Almedina, January 2023.

 

IV.1.2. Generic Guidelines & Cia

Circular Letter no. 20246, of 2023-01-03, by order of the Directorate of Services of the Personal Income Tax.

Subject: Alterations to Form 44 Declaration.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_circulado_20246_2023.pdf

Circular Letter no. 20247, of 2023-01-03, by order of the Directorate of Services of the Personal Income Tax.

Subject: Alterations to Declarations Model 25, Model 37 and Model 39.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_circulado_20247_2023.pdf

Circular Letter no. 20248, of 2023-01-04, by order of the Directorate of Services of the Personal Income Tax.

Subject: Changes to Model DMR and Model 10 Declarations.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_circulado_20248_2023.pdf

Circular Letter no.  30254, of 2023-01-05, by order of the Tax Management Area-VAT.

Subject: VAT – State Budget for 2023. Alterations to the VAT Code and Complementary Legislation.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_circulado_30254_2023.pdf

Circular Letter no. 20249, of 2023-01-18, by order of the Subdirector General of IR and International Relations.

Subject: Law No. 83/2021, of 06/12 – Inclusion of telework expenses in the Personal Income Tax.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_20249_2023.pdf

Circular Letter no. 30256, of 2023-01-26, by order of the Area of Tax Management-VAT.

Subject: VAT – Remuneration paid by bettors to mediators of State Social Games.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_circulado_30256_2023.pdf

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

On the 3 January 2023, the Council of Ministers approved:

i) A resolution that allows the implementation of the State Budget for 2023, regarding the State’s financing conditions.

https://www.portugal.gov.pt/pt/gc23/governo/comunicado-de-conselho-de-ministros?i=527

On 5 January 2023, the Council of Ministers approved:

i) The decree-law establishing the rules for the execution of the State Budget for 2023.

https://www.portugal.gov.pt/pt/gc23/governo/comunicado-de-conselho-de-ministros?i=528

On 12 January 2023, the Council of Ministers approved:

i) The draft law creating the new legal regime for sports companies;

ii) The decree-law that extends the personal scope of access to the public capitalisation scheme, as well as to the respective retirement certificate fund.

https://www.portugal.gov.pt/pt/gc23/governo/comunicado-de-conselho-de-ministros?i=529

On 26 January 2023, the Council of Ministers approved:

i) The decree-law that approves the legal regime of the land register.

https://www.portugal.gov.pt/pt/gc23/governo/comunicado-de-conselho-de-ministros?i=531

 

IV.2.2. Industrial Property

On 12th January the provisional statistical data regarding the requests and concessions of Industrial Property Rights (IPR), updated to December 2022, were published. Of these statistics, the following are of particular note:

i) From January to December 2022, 915 applications for national inventions were filed, a figure close to the 919 applications filed in 2021. With regard to grants of national inventions, 215 national inventions were granted, compared to 316 granted in the previous year;

ii) The total of International Applications (PCT) and European Patent applications came close to the figure for 2021, with 65 applications in 2022 and 69 in 2021. The number of European Patent validations filed in Portugal in the last twelve months fell in comparison with the same period in the previous year, falling from 4,975 validations filed to 3,862;

iii) There were 20,240 applications for the registration of national Trademarks and Other Trade Distinctive Signs (OSDC) from January to December 2022 (down from 24,022 applications filed in 2021). In the same period, 16,055 National Trade Marks and OSDCs were also granted (19,860 in the year 2021);

iv) With regard to International Brand Designations for study and national registration, according to data from the World Intellectual Property Organization (WIPO), there was a drop in relation to the same period (1,205 in 2022 and 1,419 in 2021);

v) Applications for Community Design of origin in Portugal, maintain the same values previously observed, since data for the month of December is not yet available.

All statistical reports (annual and half-yearly) and monthly data regarding 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-dezembro-2022

INTA – International Trademark Association has recently made available a report dedicated to the topic of Intellectual Property (IP) in Space.

https://inpi.justica.gov.pt/Noticias-do-INPI/Relatorio-INTA-Propriedade-Intelectual-no-Espaco

The second report of the Jurisprudence of National Courts on Intellectual Property Crimes has been prepared. It summarises the national judgments and highlights the dominant issues concerning counterfeiting crimes and online piracy.

https://inpi.justica.gov.pt/Noticias-do-INPI/EEUIPO-EUROJUST-2%C2%BA-relatorio-de-Jurisprudencia-de-Crimes-de-PI

The World Intellectual Property Organization (WIPO) launches the second edition of the WIPO Global Awards. Nominations can be submitted until 31 March 2023 and the winning SMEs will be revealed in July.

https://inpi.justica.gov.pt/Noticias-do-INPI/WIPO-Global-Awards-2023-candidaturas-ate-31-de-marco

The European Union Intellectual Property Office (EUIPO) is making available the new edition of the European Union (EU) Small and Medium-sized Enterprise (SME) Support Fund to enable SMEs to benefit from their Industrial Property Rights (IPR).

Applications can be made on the EUIPO website.

Grants are awarded in order of receipt of applications until all the money available in the Fund has been used.

https://inpi.justica.gov.pt/Noticias-do-INPI/Fundo-PME-2023-Candidaturas-abertas

 

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