I. EDITORIAL – REGIME APPLICABLE TO STARTUPS AND SCALEUPS AND AMENDMENT OF THE PERSONAL INCOME TAX CODE, OF THE STATUTE OF TAX BENEFITS AND OF THE INVESTMENT TAX CODE; REGULATION OF MEDICALLY ASSISTED DEATH AND AMENDMENT OF THE PENAL CODE
The month of May was marked, on a legislative level, by the publication of Law no. 21/2023, of 25 May, which establishes the regime applicable to startups and scaleups and amends the Personal Income Tax Code, the Statute of Tax Benefits and the Investment Tax Code, and by the publication of Law no. 22/2023, of 25 May, which regulates the conditions under which medically assisted death is not punishable and amends the Penal Code.
Also noteworthy, at the legislative level, are:
- Law no. 20/2023, of 17 May, which changes the regime of several tax benefits;
- Law no. 24/2023 of 29 May, which approves standards of consumer protection for financial services, amending Decree-Laws nos. 3/2010 of 5 January, 74-A/2017 of 23 June, 80-A/2022 of 25 November and 27-C/2000 of 10 March, and Law 19/2022 of 21 October;
- Law no. 26/2023 of 30 May, which reinforces protection for victims of crimes of non-consensual dissemination of intimate contents, amending the Penal Code and Decree-Law no. 7/2004 of 7 January, which transposes into national law Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market.
Within the scope of case law, it is worth highlighting the Judgement of the Constitutional Court no. 300/2023, of 25 May, Case no. 232/23, in which it was decided to “confirm the decision complained of, maintaining the judgment of non-inconstitutionality of the rules contained in articles 2, 3, 4, 11 and 12 of the legal regime of the Special Contribution on the Energy Sector (CESE), approved by article 228 of Law no. 83-C/2013 of 31 December“.
Finally, under Miscellaneous, the approval of the following diplomas is highlighted:
- Decree-law transposing Directive (EU) 2019/790 on copyright and related rights in the digital single market;
- Draft law transposing Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography and extending the scope of the crime of discrimination and incitement to hatred and violence;
- Draft law authorizing the government to transpose Directive (EU) 2019/2121, as regards employee participation rights in cross-border transformations, mergers and divisions; and
- Draft law authorizing the Government to transpose Directive (EU) 2020/1828 on collective actions for the protection of consumers’ interests.
II. LEGISLATION
Decree Law no. 29/2023, of 5 May: Transposes Delegated Directive (EU) 2021/1717 and adapts the regime of technical inspections of motor vehicles and their trailers to Directive 214/45/EU, updating certain designations of vehicle categories.
https://files.dre.pt/1s/2023/05/08700/0000200007.pdf
Ordinance no. 115/2023 of 5 May: Identifies coastal and transitional bathing waters and inland bathing waters for the year 2023, fixing the respective bathing seasons, and qualifies them as bathing beaches where lifeguards are ensured.
https://files.dre.pt/1s/2023/05/08700/0002000043.pdf
Ordinance no. 116/2023, of 8 May: Sets the value of the “health and food safety fee plus” for the year 2023.
https://files.dre.pt/1s/2023/05/08800/0000800008.pdf
Ordinance no. 120-B/2023, of 11 May: Regulates the extraordinary support measures for mainland farmers, aimed at mitigating the effect of the rise in production cost prices, for the year 2023.
https://files.dre.pt/1s/2023/05/09101/0001300017.pdf
Ordinance no. 133/2023, of 15 May: Establishes financial support of a complementary, exceptional and temporary nature, through the attribution of a subsidy.
https://files.dre.pt/1s/2023/05/09300/0001100012.pdf
Law no. 20/2023, of 17 May: Amends the regime of several tax benefits.
https://files.dre.pt/1s/2023/05/09500/0000200008.pdf
Law no. 21/2023, of 25 May: Establishes the regime applicable to startups and scaleups and amends the Personal Income Tax Code, the Statute of Tax Benefits and the Investment Tax Code.
https://files.diariodarepublica.pt/1s/2023/05/10100/0000200009.pdf
Law no. 22/2023 of 25 May: Regulates the conditions under which medically assisted death is not punishable and amends the Penal Code.
https://files.diariodarepublica.pt/1s/2023/05/10100/0001000020.pdf
Law no. 23/2023 of 25 May: Provides for the resumption of foster care measures and the establishment of autonomy programs for children and young people at risk, amending the Law on the Protection of Children and Young People at Risk.
https://files.diariodarepublica.pt/1s/2023/05/10100/0002100022.pdf
Law no. 24/2023 of 29 May: Approves standards of consumer protection for financial services, amending Decree-Laws 3/2010 of 5 January, 74-A/2017 of 23 June, 80-A/2022 of 25 November and 27-C/2000 of 10 March, and Law No. 19/2022 of 21 October.
https://files.dre.pt/1s/2023/05/10300/0000200009.pdf
Rectification Declaration no. 13/2023, of 29 May: Rectifies Law no. 13/2023, of 3 April – modifies the Labour Code and related legislation, within the scope of the decent work agenda.
https://files.dre.pt/1s/2023/05/10300/0001300014.pdf
Decree-Law no. 38/2023, of 29 May: Creates a rental regime for sub-leasing for families with difficulties in accessing housing on the market and amends various legal regimes in the area of housing as part of the implementation of the Recovery and Resilience Plan.
https://files.dre.pt/1s/2023/05/10300/0001500046.pdf
Ordinance no. 142/2023, of 30 May: Undertakes the first amendment to Ordinance no. 13-A/2022, of 4 January, which regulates the communication of the signing of service provision contracts with professionals in the cultural area.
https://files.dre.pt/1s/2023/05/10400/0004000044.pdf
Law no. 26/2023, of 30 May: Strengthens the protection of victims of crimes of non-consensual dissemination of intimate contents, amending the Penal Code and Decree-Law no. 7/2004, of 7 January, which transposes into national law Directive 2000/31/EC, of the European Parliament and of the Council, of 8 June, on certain legal aspects of information society services, in particular electronic commerce, in the internal market.
III. CASE-LAW
III.1. Court of Justice of the European Union
Judgment of the Court of Justice (Ninth Chamber) of 4 May 2023: Reference for a preliminary ruling. Consumer protection. Directive 93/13/EEC. Unfair terms in consumer contracts. Enforcement proceedings in respect of a loan agreement constituting an enforceable instrument. Objection to the enforcement. Review of unfair terms. Principle of effectiveness. National legislation not permitting the court hearing the enforcement proceedings to review the possible unfairness of a clause beyond the time limit imposed on a consumer for lodging an objection. Existence of an action under ordinary law that cannot become time-barred enabling the court hearing the substance of the case to carry out such a review and to order suspension of the enforcement. Conditions which do not render impossible in practice or excessively difficult the exercise of rights conferred by EU law. Requirement for the consumer to pay a security in order to suspend the enforcement proceedings.
Summary:
“Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, must be interpreted as precluding a provision of national law that does not allow the court which is responsible for the enforcement proceedings and which hears, outside the 15-day period laid down by that provision, an objection to the enforcement of a contract that is concluded between a consumer and a seller or supplier and constitutes an enforceable instrument, to assess, of its own motion or at the request of the consumer, the unfairness of the terms of that contract, when that consumer also has an action on the merits which enables him or her to request the court hearing that action to carry out such a review and to order the suspension of the enforcement pending the outcome of that action, in accordance with another provision of that national law, where that suspension is possible only by way of payment of a security the amount of which is likely to dissuade the consumer from bringing and continuing such an action, which it is for the referring court to verify. Where it is not possible to interpret and apply the national legislation in a manner that is consistent with the requirements of that directive, the national court hearing an objection to the enforcement of such a contract is obliged to examine of its own motion whether the terms of that contract are unfair, and, where necessary, is to disapply any national provisions which preclude such an examination.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62021CJ0200
III.2. Constitutional Court
Judgement of the Constitutional Court no. 271/2023 of 19 May, Case no. 1131/2021:
“In view of the above, it is decided:
a) Declare unconstitutional, for violation of article 112, no. 8 of the Constitution, in the version resulting from Law no. 1/97, of 29 September (corresponding to article 112, no. 7 of the text currently in force), the rule in no. 3 of article 44 of the Regulation and Table of Municipal Fees and Licenses of the Municipality of Boticas, published in the Official Gazette, Series II, no. 49, of 28 February 2000, through Notice no. 1383/2000; and, consequently
b) Dismiss the present action”.
https://www.tribunalconstitucional.pt/tc/acordaos/20230271.html
Judgement of the Constitutional Court no. 300/2023, of 25 May, Case no. 232/23:
“In these terms and on these grounds, it is decided:
a) Confirm the decision complained of, upholding the judgment of non-inconstitutionality of the rules contained in articles 2, 3, 4, 11 and 12 of the legal regime of the Special Contribution on the Energy Sector (CESE), approved by article 228 of Law no. 83-C/2013 of 31 December, dismissing the appeal brought by A., SA.
b) Order the complainant to pay costs, the court fee being fixed at 20 (twenty) units of account“.
https://www.tribunalconstitucional.pt/tc/acordaos/20230300.html
III.3. Judicial Courts
Judgement of the Supreme Court of Justice of 16 May, Case no. 453/11.1TBCDN-M.C1.S1: Insolvency administrator. Remuneration. Determination of value. Admissibility of appeal. Review appeal.
Summary:
“I- To the appeal of the decision that decides the calculation method of the increase of the insolvency administrator’s variable remuneration (foreseen in Article 23, paragraph 7 of the EAJ) Article 14 of the CIRE is applicable, which, due to its special nature, excludes the application of the general rules of the review appeal foreseen in the CPC, although it does not waive the general assumptions of admissibility of ordinary appeals required by Article 629, paragraph 1 of the CPC.
II- When calculating the increase of the remuneration of the insolvency administrator, the amount of 5% referred to in Article 23(7) of the EAJ, as amended by Law 9/2022, does not have as object the total amount determined for the satisfaction of claims (that is, the amount determined after extracting the portion corresponding to the percentage of the variable remuneration provided for in paragraphs 4 and 6 of Article 23).
III- This 5% percentage is levied on the result of a prior arithmetic operation intended to ascertain the “degree of satisfaction of the claims claimed and admitted“.
Judgment of the Lisbon Court of Appeal of 16 May, Case no. 1117/14.0TMLSB-F.L2-7: Exercise of parental responsibilities. Question of particular importance. Religious education of the minor. Option of the parents. Option of the child. Physical and moral integrity of the minor.
Summary:
“I. The question pertaining to the religious education of the child is a matter of particular importance.
II. Comparing Article 14, paragraph 2, of the United Nations Convention on the Rights of the Child with our Article 1886 of the Civil Code, an antinomy between the norms (both in force in our legal system) can be detected, since the Civil Code seems to leave the choice of the religious education of children entirely to the parents, while the Convention prioritizes the convictions of children.
III. The legal system as a whole (with internal and other international rules) protects the child as a growing subject, and parents should progressively take into consideration the child’s individuality, which is also expressed in the (in)existence of religious convictions. This does not mean that such development of the child’s personality is devoid of values and limits: religious options that may endanger the physical and moral integrity of the child and/or others and the values inherent to life in society should always be repelled (see Articles 1, 24, 25, 26, 27 of the Constitution, namely).
IV. There are no proven, objective and relevant reasons preventing the child from assuming the religious conviction transmitted to him by his mother, even though he has not yet reached the age of religious majority. It is up to the parent to respect the child’s choice, unless he concretely demonstrates that such conviction entails danger for the child, for the development of his personality and/or life in society, which is not the case“.
Judgement of the Porto Court of Appeal, of 04 May, Case no. 7118/21.4T8VNG.P1: Real estate mediation contract. Contracts concluded outside the establishment. Consumer. Termination of the contract.
Summary:
“I – The real estate mediation contract concluded in the consumer’s home is subject to the legal regime for contracts concluded outside the establishment of DL no. 24/2014, of 14 February, regardless of the reasons for which the conclusion occurred there and the demonstration that by that fact the consumer was influenced or manipulated by the professional.
II – In contracts concluded off-premises the consumer is entitled to rescind the contract without the need to state a reason, for which reason the invocation of a reason is legally irrelevant, even if the reason is non-existent or unfounded.
III – To exclude this right it is not sufficient that at the time of withdrawal the services have already been fully provided, it is also necessary that the consumer has expressly consented at the beginning of the provision of services and recognized that in this situation he loses the right of free withdrawal if the contract has been fully performed by the professional“.
III.4. Administrative and Tax Courts
Judgement of the Supreme Administrative Court of 10 May, Case no. 01587/16.1BEBRG: IRC. Bankruptcy. Liquidation.
Summary:
“I – The declaration of bankruptcy and the entry into a period of liquidation of the bankrupt estate does not in itself determine the abolition of income tax, in this case, on legal persons.
II – The Corporate Income Tax Code (CIRC) has always had and still has a subsection (of rules) dedicated to the “Liquidation of companies and other entities”, where the rule that “In relation to companies in liquidation, the taxable profit is determined with reference to the entire liquidation period” has always been (and still is) established.”.
Judgement of the Southern Central Administrative Court, of 16 May, Case no. 76/23.2BCLSB: Sports justice. Preliminary injunction. Requirements. Principle of legality.
Summary:
“I. The essential requirements of these precautionary measures are
a) The ownership of a right deriving from the sports legal system or related to the practice of sports; and
b) a well-founded fear of serious and difficult to repair injury to that right.
II. The incorrect choice, definition or application of the disciplinary penalty involves illegality for violation of the law, which is reflected in the infringement of the rules that define, regulate and integrate the penalty in question. In our case, an error in the legal subsumption of the rule contained in Article 47(4) of the Disciplinary Regulations of the Portuguese Rugby Federation, which regulates automatic preventive suspension, to the underlying factual situation; which is not authorised by the primary or regulatory reference rule, which does not include in its tatbestand the possibility of automatic preventive suspension in relation to the specific type of disciplinary offence allegedly committed.
III. Verified the requirement of periculum in mora, in the context of a situation of fait accompli (impossibility of the team playing in the club field), not being able to conclude that the decree of the injunction is likely to cause the Defendant a damage that considerably exceeds the damage it intends to avoid (art. 368, no. 2, of the CPC), the requested injunction must be granted”.
IV. BRIEFS
IV.1. DOCTRINE
IV.1.1. Monographs and Periodic Publications
Alcides Martins, Direito do Processo Laboral, Almedina, May 2023.
Francisco Paes Marques, João Marques Mendes, Estudos de Direito da Energia, Almedina, May 2023.
Joana de Sousa Varejão, A Violência Doméstica como Causa de Indignidade Sucessória, Almedina, May 2023.
Jorge Bacelar Gouveia, Textos Fundamentais de Direito Internacional Público, Almedina, May 2023.
Jorge Silva Martins, João Carminho, Inês Coré, Direito dos Dados Pessoais – Coletânea de legislação fundamental, Almedina, May 2023.
Luís Manuel Pica, A Inteligência Artificial no Direito Tributário – Fundamentos e Limites Constitucionais, Almedina, May 2023.
Rui Soares Pereira, Prova, Verdade e Processo, Almedina, May 2023.
IV.1.2. Generic Guidelines & Cia
Order no. 148/2023-XXIII, of 22 May, of the Secretary of State for Tax Affairs
Subject: Conventional share capital remuneration and extension of the deadline for filing the IRC model 22 declaration.
IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation
On May 25, the Council of Ministers approved two draft laws in the framework of the reform of professional associations, with the purpose of removing restrictions on access to professions and improving the conditions of competition. In this sense, it was approved:
- The draft law, to be submitted to the Portuguese Parliament, adapting the statutes of eight professional associations to the provisions of the legal framework, following the entry into force of Law no. 12/2023 of 28 March, namely, the Association of Veterinarians, the Association of Biologists, the Association of Certified Accountants, the Association of Portuguese Psychologists, the Association of Nutritionists, the Association of Official Dispatchers, the Association of Social Workers and the Association of Physiotherapists.
- The draft law amending the legal regime for the establishment and functioning of professional societies covered by public professional associations.
In addition, the following diplomas were approved:
- Decree-law transposing Directive (EU) 2019/790 on copyright and related rights in the digital single market;
- Draft law transposing into national law Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography, and extending the scope of the crime of discrimination and incitement to hatred and violence;
- Draft law authorizing the government to transpose Directive (EU) 2019/2121, as regards employee participation rights in cross-border transformations, mergers and divisions; and
- Draft law authorizing the Government to transpose Directive (EU) 2020/1828 on collective actions for the protection of consumers’ interests.
https://www.portugal.gov.pt/pt/gc23/governo/comunicado-de-conselho-de-ministros?i=553
IV.2.2. Industrial Property
On 11 May, provisional statistical data regarding Industrial Property Rights (IPR) applications and concessions was made available for the month April 2023. Of this statistical data, the following are noteworthy:
i) In the first four months of the year, 224 applications for national inventions were submitted, (a lower figure than the 285 applications submitted in the same period of the previous year). As far as concessions are concerned, 63 national inventions were granted, compared to 71 in the same period of 2022;
ii) The total number of International Applications (PCT) and European Patent applications was 17 between January and April 2023. The number of European Patent validations filed in Portugal in the first four months of the year decreased compared to the same period in the previous year, from 1,377 validations filed to 960 in 2023;
iii) There were 7,680 applications for the registration of National Trade Marks and Other Distinctive Trade Signs (OSDC) from January to April 2023 (higher than the 7,267 applications filed in the same period of 2022), representing an increase of 5.7%. In the same period, 5,362 National Trademarks and OSDC’s were also granted (5,247 in 2022);
iv) The number of objects included in national Design requests went from 309 from January to March 2022 to 296 in the same period of 2023, thus representing a decrease of 4.2%.
All statistical reports (annual and biannual) and monthly data on applications and grants of Industrial Property Rights are available at the IP Observatory.
https://inpi.justica.gov.pt/Noticias-do-INPI/Direitos-de-Propriedade-Industrial-janeiro-a-abril-2023
On 24 May, the European Union Intellectual Property Office (EUIPO) makes available the new edition of the European Union (EU) Small and Medium-sized Enterprise (SME) Support Fund to enable SME’s to benefit from their Industrial Property Rights (IPR).
In total, this SME support initiative received more than 22,000 applications from all EU Member States in 2022. The estimated allocation for this initiative in 2023 is €25 million (for vouchers 1 and 2), €2 million (for voucher 3) and €100,000 (for voucher 4).
Applications can be made on the EUIPO website.
https://inpi.justica.gov.pt/Noticias-do-INPI/Fundo-PME-2023-Candidaturas-abertas
Refer to