Newsletter – July 2023

case-legal19

I. EDITORIAL – REGULATION OF THE DECENT WORK AGENDA; APPROVAL OF THE MENTAL HEALTH LAW AND AMENDMENT OF RELATED LEGISLATION, CRIMINAL CODE, CODE OF EXECUTION OF SENTENCES AND MEASURES INVOLVING DEPRIVATION OF LIBERTY, CIVIL CODE AND REVOCATION OF LAW NO. 36/98, OF JULY 24

The month of July was marked, on a legislative level, by the publication of Decree-Law no. 53/2023, of July 5, which regulates the Decent Work Agenda and by the publication of Law no. 35/2023, of July 21, which approves the Mental Health Law and amends related legislation, the Criminal Code, the Code of Execution of Sentences and Measures Involving Deprivation of Liberty, the Civil Code and revokes Law no. 36/98 of July 24.

Also noteworthy, at the legislative level, are:

  • Law no. 31/2023, of July 4, which ceases the application of laws published in the context of the COVID-19 pandemic;
  • Decree-Law no. 54/2023, of July 14, which amends the rules of the execution of the 2023 State Budget;
  • Law no. 36/2023, of July 26, which transposes Directive (UE) 2021/514 which amends Directive 2011/16/UE, regarding the administrative cooperation in the field of taxation, amending the General Regime of Tax Infractions, the Complementary Regime for the Tax Inspection Procedure and Decree-Law no. 61/2013, of May 10.

Within the scope of case law, it is worth highlighting the Judgement of the Constitutional Court of July 4, Case nº 276/2023, in which it was decided “a) to not find unconstitutional the contents of article 386, no. 1, paragraph c), of the Criminal Code (in the version given by Law no. 32/2010, of September 2, and article 386, no. 1, paragraph c), of the Criminal Code, in the version given by Law no. 94/2021, of December 21, when interpreted in the sense that the insolvency administrator is considered an officer for criminal effects; b) to not find unconstitutional the content of articles 2, no. 4 of the Criminal Code, 12, no. 2 and 19, no. 2 of Law no. 22/2013, of February 26, in its original version, when interpreted in the sense that the law hasn’t decriminalised the conducts that fall under the crime of peculate; c) to not find unconstitutional the contents of article 20 of the General Regime of Administrative Offences, approved by Decree-Law no. 433/82, of October 27, article 17, no. 3 of Law no. 22/2013, of February 26, in it’s original version, and article 375, no. 1, of the Criminal Code, when interpreted in the sense that, in the concurrence between the administrative offence provided for in that provision of Law no. 22/2013, of February 26, and the crime provided for in the indicated provision of the Criminal Code, the agent is punished only by the criminal offence”.

Finally, under Miscellaneous, it’s worth highlighting the approval of the following documents:

  • Decree-Law extending the temporary mechanism for extraordinary professional diesel and the transitional regime for the granting of the social mobility allowance, which amends the transitional regime for the stabilisation of gas prices by legal entities with consumption of more than 10 000m3;
  • The National Plan for the Reduction of Addictive Behaviours and Dependencies 2030 and the Action Plan for the Reduction of Addictive Behaviours and Dependencies – Horizon 2024, with the aim of significantly reducing a wide range of addictive behaviours and dependencies;
  • The proposal for multi-annual programming of expenditure in the context of investments covered by the reprogramming of the Recovery and Resilience Plan, guaranteeing its predictability and ensuring that the implementation of the planned projects is not disrupted.

II. LEGISLATION

Ordinance no. 184/2023, of July 3: First Amendment to the Specific Regulation of the Innovation and Digital Transition Thematic Area.

https://files.diariodarepublica.pt/1s/2023/07/12700/0000900010.pdf

Ordinance no. 185/2023, of July 3: Second Amendment to the Regulation of the Support System for Employment and Entrepreneurship (CO3SO Employment).

https://files.diariodarepublica.pt/1s/2023/07/12700/0001100012.pdf

Ordinance no. 186/2023, of July 3: Adopts the Specific Regulation of the Support Measures of the Mar 2030 Programme.

https://files.diariodarepublica.pt/1s/2023/07/12700/0001300045.pdf

Ordinance no. 187/2023, of July 3: Creates and regulates the AVANÇAR programme.

https://files.diariodarepublica.pt/1s/2023/07/12700/0004900059.pdf

Ordinance no. 187-A/2023, of July 3: Extends until December 31 of 2023 the transitional regime applicable to supplies made to or from premises for own consumption under the “professional diesel” regime.

https://files.diariodarepublica.pt/1s/2023/07/12701/0000200002.pdf

Ordinance no. 187-B/2023, of July 3: Maintains the path of gradual unfreezing of the update of the CO2 surcharge, while keeping a partial suspension of its update.

https://files.diariodarepublica.pt/1s/2023/07/12701/0000300004.pdf

Ordinance no. 187-C/2023, of July 3: Review and adjustment of the tax rates on petroleum and energy products.

https://files.diariodarepublica.pt/1s/2023/07/12701/0000500006.pdf

Law no. 27/2023, of July 4: Modifies the value of the fines applicable to administrative offences in road infrastructure where toll fees are due, amending Law no. 25/2006, of June 30.

https://files.diariodarepublica.pt/1s/2023/07/12800/0000500007.pdf

Law no. 28/2023, of July 4: Prohibits the forced renewal of services or equipment whose useful life has not expired, amending Law no. 24/96, of July 31.

https://files.diariodarepublica.pt/1s/2023/07/12800/0000800009.pdf

Law no. 29/2023, of July 4: Amends Law no. 73/2013, of September 3, which establishes the financial regime for local authorities and intermunicipal entities.

https://files.diariodarepublica.pt/1s/2023/07/12800/0001000011.pdf

Law no. 30/2023, of July 4: Subjects the sale of lottery and instant lottery tickets in post offices and postal agencies to prior authorisation by the Government, amending Law no. 17/2012 of April 26.

https://files.diariodarepublica.pt/1s/2023/07/12800/0001200013.pdf

Law no. 31/2023, of July 4: Ceases the application of laws published in the context of the COVID-19 pandemic.

https://files.diariodarepublica.pt/1s/2023/07/12800/0001400017.pdf

Decree-Law no. 52/2023, of July 4: Amends the regime for the payment of costs and legal representation of members of the Government and senior officials of the Public Administration.

https://files.diariodarepublica.pt/1s/2023/07/12800/0001800019.pdf

Decree-Law no. 53/2023, of July 5: Proceeds to the regulation of the Decent Work Agenda.

https://files.diariodarepublica.pt/1s/2023/07/12900/0000600029.pdf

Ordinance no. 191/2023, of July 6: Proceeds to the fifth amendment to Ordinance no. 182/2018, of June 22, which regulates the working conditions of administrative employees not covered by specific collective regulations.

https://files.diariodarepublica.pt/1s/2023/07/13000/0000300018.pdf

Ordinance no. 192/2023, of July 7: Determines the values of the coefficients to be used for updating annual remuneration.

https://files.diariodarepublica.pt/1s/2023/07/13100/0006300066.pdf

Decree-Law no. 54/2023, of July 14: Amends the rules of the execution of the 2023 State Budget.

https://files.diariodarepublica.pt/1s/2023/07/13600/0000400010.pdf

Decree-Law no. 55/2023, of July 14: Amends the list of defence-related products by transposing Delegated Directive (EU) 2023/277.

https://files.diariodarepublica.pt/1s/2023/07/13600/0001100012.pdf

Decree-law no. 57/2023, of July 14: Creates the Courts of Justice of Peace of the municipality of Santo Tirso.

https://files.diariodarepublica.pt/1s/2023/07/13600/0002200023.pdf?lang=EN

Resolution of the Council of Ministers no. 73/ 2023, of July 14: Establishes the National Management Unit of the European Economic Area Financial Mechanism 2021-2027.

https://files.diariodarepublica.pt/1s/2023/07/13600/0005400056.pdf

Resolution of the Council of Ministers no. 74/2023, of July 14: Extends the 8th generation of the “Programa Escolhas” until September 2023 and approves the 9th generation of the “Programa Escolhas”, for the period of 2023 to 2026.

https://files.diariodarepublica.pt/1s/2023/07/13600/0005700060.pdf

Resolution of the Council of Ministers no. 80-B/2023, of July 18: Approves the “Plano 23|24 Escola+”, the plan for learning recovery and extends the mandate of the Mission Structure for the Promotion of School Success.

https://files.diariodarepublica.pt/1s/2023/07/13802/0000200010.pdf

Law no. 33/2023, of July 19: Authorises the Government to approve a new legal regime for the public service of transportation of passengers by taxi.

https://files.diariodarepublica.pt/1s/2023/07/13900/0000300004.pdf

Law no. 34/2023, of July 19: Authorises the Government to amend the Statute of the Administrative and Tax Courts, the Code of Tax Procedure, the General Regime of Tax Infractions and Decree-Law no. 42/2001, of February 9.

https://files.diariodarepublica.pt/1s/2023/07/13900/0000500006.pdf

Resolution of the Assembly of the Republic no. 90/2023: Recommends to the Government to strengthen special needs education training throughout the teaching career.

https://files.diariodarepublica.pt/1s/2023/07/13900/0001200012.pdf

Ordinance no. 220/2023, of July 20: Defines the accessibility requirements for products and services and the criteria for assessing the disproportionate nature of a fee, within the scope of Decree-Law no. 82/2022, of December 6, which transposed Directive 2019/882 into the legal system.

https://files.diariodarepublica.pt/1s/2023/07/14000/0000500017.pdf

Law no. 35/2023, of July 21: Approves the Mental Health Law and amends related legislation, the Criminal Code, the Code of Execution of Sentences and Measures Involving Deprivation of Liberty, the Civil Code and revokes Law no. 36/98 of July 24.

https://files.diariodarepublica.pt/1s/2023/07/14100/0000200023.pdf

Resolution of the Assembly of the Republic no. 92/2023, of July 21: Recommends to the Government the valorisation of citizen participation in electoral procedures by adjusting the amounts of compensations for participation in voting stations.

https://files.diariodarepublica.pt/1s/2023/07/14100/0002400024.pdf

Resolution of the Assembly of the Republic no. 93/2023: Second supplementary budget of the Assembly of the Republic for the year 2023.

https://files.diariodarepublica.pt/1s/2023/07/14100/0002500029.pdf

Decree-Law no. 59/2023, of July 21: Amends the regulation laying down the maximum authorised weights and dimensions for vehicles in circulation.

https://files.diariodarepublica.pt/1s/2023/07/14100/0003000033.pdf?lang=EN

Decree-Law no. 61/2023, of July 24: Amends the governance model of the european funds allocated to Portugal through the Recovery and Resilience Plan and adjusts the procedures for their payments.

https://files.diariodarepublica.pt/1s/2023/07/14200/0002000035.pdf

Resolution of the Assembly of the Republic no. 94/2023, of July 25: Codification and consolidation of electoral legislation.

https://files.diariodarepublica.pt/1s/2023/07/14300/0000300003.pdf

Resolution of the Assembly of the Republic no. 96/2023, of July 25: Recommends to the Government to carry out an experiment of in-person electronic voting in Portuguese communities.

https://files.diariodarepublica.pt/1s/2023/07/14300/0000500005.pdf

Decree-Law no. 62/2023, of July 25: Amends the rules for adapting the assessment process under the legal framework for inclusive education and the rules on the external learning assessment process.

https://files.diariodarepublica.pt/1s/2023/07/14300/0000600009.pdf?lang=EN

Law no. 36/2023, of July 26: Transposes Directive (UE) 2021/514 of the Council, of March 22 of 2021, which amends Directive 2011/16/UE, regarding the administrative cooperation in the field of taxation, amending the General Regime of Tax Infractions, the Complementary Regime for the Tax Inspection Procedure and Decree-Law no. 61/2013, of May 10.

https://files.diariodarepublica.pt/1s/2023/07/14400/0000200094.pdf

Ordinance no. 230/2023, of July 27: Approves the models and means of identification of criminal police authorities and employees of the special criminal investigation career of the Judicial Police, as well as other employees of the Judicial Police and revokes Ordinances no. 96/2002, of January 31, 290/2002, of March 18, and 167/2009, of February 16.

https://files.diariodarepublica.pt/1s/2023/07/14500/0000300015.pdf

Ordinance no. 235/2023, of July 27: Defines the criteria for criticality of essential medicines that justify the application of specific measures, in order to guarantee access and maintenance on the national market of these medicines, promoting the interest of the pharmaceutical industry in their manufacture and commercialisation, and promoting their availability in Portugal.

https://files.diariodarepublica.pt/1s/2023/07/14500/0002600028.pdf

Declaration of Rectification no. 16/2023, of July 28: Rectifies Decree-Law no. 38/2023, of May 29, which creates a rental regime for subletting for families with difficulties in accessing housing in the market and amends several legal regimes in the housing area within the scope of the implementation of the Recovery and Resilience Plan.

https://files.diariodarepublica.pt/1s/2023/07/14600/0001200013.pdf

Ordinance no. 237/2023, of July 28: Approves the list of defence-related products, including military goods, technologies, and services, in their tangible and intangible form.

https://files.diariodarepublica.pt/1s/2023/07/14600/0001400078.pdf

Ordinance no. 244-A/2023, of July 28: Maintains the path of gradual unfreezing of the update of the CO2 surcharge, while keeping a partial suspension of its update.

https://files.diariodarepublica.pt/1s/2023/07/14601/0000200003.pdf

Ordinance no. 244-B/2023, of July 28: Review and adjustment of the tax rates on petroleum and energy products.

https://files.diariodarepublica.pt/1s/2023/07/14602/0000200002.pdf

III. CASE-LAW

III.1. Court of Justice of the European Union

Judgement of the Court of Justice (First Chamber) of July 6 of 2023, Case no. C-663/21: Reference for a preliminary ruling. Directive 2011/95/EU. Standards for granting refugee status or subsidiary protection status. Article 14, no. 4, b). Revocation of refugee status. Third-country national convicted by a final judgment of a particularly serious crime. Danger to the community. Proportionality test. Directive 2008/115/EU. Return of illegally staying third-country nationals. Postponement of removal.

Summary:

“Article 14, no. 4, b) of Directive 2011/95/EU of the European Parliament and of the Council of December 13 of 2011, on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as meaning that the application of that provision is conditional on the competent authority establishing that the revocation of refugee status constitutes a proportionate measure having regard to the danger posed by the third-country national concerned to a fundamental interest of the society of the Member State in which that third-country national is present. To that end, that competent authority must balance that danger against the rights which must be guaranteed, in accordance with that directive, to persons fulfilling the substantive conditions of Article 2(d) of that directive, without, however, that competent authority also being required to verify that the public interest in the return of that third-country national to his or her country of origin outweighs that third-country national’s interest in the continuation of international protection, in the light of the extent and nature of the measures to which that third-country national would be exposed if he or she were to return to his or her country of origin.

Article 5 of Directive 2008/115/EC of the European Parliament and of the Council of December 16 of 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, must be interpreted as precluding the adoption of a return decision in respect of a third-country national where it is established that removal of that third-country national to the intended country of destination is, by reason of the principle of non-refoulement, precluded for an indefinite period.”

eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62021CJ0663

Judgement of the Court of Justice (Ninth Chamber) of July 13 of 2023, Case no. C-265/22: Reference for a preliminary ruling. Consumer protection. Directive 93/13/EEC. Unfair terms in consumer contracts. Mortgage loan agreements. Term providing for a variable interest rate. Reference index based on the annual percentage rates of charge (APRC) of mortgage loans granted by credit institutions. Index established by a regulatory or administrative act. Information contained in the preamble to that act. Check relating to the requirement of transparency. Assessment of the unfair nature of the term.

Summary:

“Article 3 no. 1, Article 4 and Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, must be interpreted as meaning that, in order to assess the transparency and potential unfairness of a term in a variable-rate mortgage loan agreement that designates as a reference index, for the periodic review of the interest rate applicable to that loan, an index established by a notice the subject of an official publication, to which an increase is applied, the content of the information contained in another notice – indicating the need to apply to that index, in view of its method of calculation, a negative margin in order to align that interest rate with the market rate – is relevant. It is also relevant whether that information is sufficiently accessible for an average consumer.”

eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62022CJ0265

III.2. Constitutional Court

Judgement of the Constitutional Court nº 405/2023, of July 4 of 2023, Case nº 276/2023:

In light of the circumstances, it is decided to confirm in full Summary Decision no. 228/2023, in the sense of:

a) to not find unconstitutional the contents of article 386, no. 1, paragraph c), of the Criminal Code (in the version given by Law no. 32/2010, of September 2, and article 386, no. 1, paragraph C), also from the Criminal Code, in the version given by Law no. 94/2021, of Decebember 21, when interpreted in the sense that the insolvency administrator is considered an officer for criminal effects;

b) to not find unconstitutional the content of articles 2, no. 4 of the Criminal Code, 12, no. 2 and 19, no. 2 of Law no. 22/2013, of February 26, in its original version, when interpreted in the sense that the law hasn’t decriminalised the conducts that fall under the crime of embezzlement;

c) to not find unconstitutional the contents of article 20 of the General Regime of Administrative Offences, approved by Decree-Law no. 433/82, of October 27, article 17, no. 3 of Law no. 22/2013, of February 26, in its original version, and article 375, no. 1, of the Criminal Code, when interpreted in the sense that, in the concurrence between the administrative offence provided for in that provision of Law no. 22/2013, of February 26, and the crime provided for in the indicated provision of the Criminal Code, the agent is punished only by the criminal offence;

d) to disregard the other questions referred to in the action brought by Mr A.”

 http://www.tribunalconstitucional.pt/tc/acordaos/20230405.html

Judgement of the Constitutional Court no. 446/2023, of July 6 of 2023, Case no. 693/2021:

“In these terms and on these grounds, it is decided:

a) To not find unconstitutional the content on the no. 2 of article 26-A , in the version given by Law no. 27/2019, of 28/03, interpreted in the sense that the court cannot dispense with the deposit of the full amount of the supporting notes when it considers it excessively onerous or arbitrary, on the grounds that it infringes the right of access to the courts and justice enshrined in Article 20, no. 1 of the Constitution, in conjunction with the principle of proportionality arising from Article 18, no. 2 of the Constitution.

b) dismiss the appeal and confirm the contested decision.”

http://www.tribunalconstitucional.pt/tc/acordaos/20230446.html

III.3. Judicial Courts

Judgement of the Court of Justice, of July 6, Case no. 20/20.9YHLSB.L.S1: Industrial Property. Brand Registry. Confusion. Denomination of Origin. Nullity of Judgement. Omission of Pronunciation.

Summary:

“Since there is no evidence that the products originated from any region covered by a particular geographical indication or that, through such products, an attempt is made to take unfair advantage of the distinctive character or prestige of a particular designation of origin, there is no infringement of the rules on geographical indications in Article 13, no. 1 of Regulation (EU) no. 1151/2012 and/or Article 306, no. 1 and 4 of the Industrial Property Code.”

http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/5cb7f6f90ee231c6802589e5004e7384?OpenDocument

Judgement of the Lisbon Court of Appeals, of July 4, Case no. 1932/19.8T8PDL-S.L1-1: Promissory Purchase and Sale Agreement. Refusal of fulfilment by the Insolvency Administrator. Abuse of the Right of Refusal.

Summary:

“1. Since the promissory contract does not have real effect, the business may be affected, and fulfilment of that contract may be refused even if there has been a tradition of the thing, as provided for in Article 106 no. 1 of the CIRE, when interpreted “a contrario”.

  1. There is nothing to prevent the rule in Article 102 no. 4 of the CIRE from extending to the option to refuse fulfilment, and it should be understood that the refusal is abusive, in the context of the promissory contract, when the price is already fully or almost paid in full (promissory contract with anticipation of the effects of the promised contract).
  2. Judicial administrators must, in the exercise of their functions and outside them, consider themselves to be servants of justice and the law (Article 12, no. 1 of the EAJ), and are expected to act in a manner similar to that of the bonus pater familias.
  3. If the promissory purchaser has paid the price in full, the refusal by the IA to fulfil the promissory contract in such circumstances, without being prepared to refund the amounts which are found to have been paid by him as a down payment, on the formal ground that he has not asserted his claim in the insolvency proceedings, would constitute an abuse of the power contained in the structure of the law, and would be clamorously offensive to the sense of justice and to the dictates of loyalty and propriety prevailing in the legal order and in social relations. “

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/4f1201054581e39b802589f00036b414?OpenDocument

Judgement of the Lisbon Court of Appeals, of July 4, Case no. 1548/17.3T8LRS.L1-7: Road Traffic Accident and Labour Accident. Non-cumulative compensation. Biological Damage. Non-Pecuniary Damages.

Summary:

“I – Since the accident is both a road traffic accident and a work-related accident, the respective compensations are not cumulative, but complementary, with labour-related liability being subsidiary, since the primary liability is that which falls on the civil party responsible; however, there can be no double compensation for the same specific damage.

II – The damages awarded in each of the jurisdictions (civil and labour) do not overlap but complement each other. Compensation is independent and the court seized of the claim exercises its full jurisdiction, deciding and establishing, without limitation, the extent of the damage.

III – The person responsible for the road traffic accident (or his insurer) may not wish to deduct from the compensation to which he is sentenced, the amount of compensation that the worker/employee may have already received by virtue of the compensation for the accident at work.

IV – Since the compensation for the specifically labour-related damage is defined in the proceedings arising from the accident at work, it remains to be established, in the civil instance, the aspect of the biological damage that affects the injured party’s life outside work.

V – It is a consolidated understanding at the level of the Supreme Court of Justice that the bodily injury suffered as a result of a road accident constitutes a real damage or damage-event, which has been designated as biological damage, which affects the physical and psychological integrity of the injured party, resulting in an offence against his health, in addition to negative effects not susceptible of pecuniary evaluation, the loss or diminution of the capacity to exercise economic activities, therefore susceptible of pecuniary evaluation, among them the greater hardship and effort in the exercise of daily and professional activities and the conditioning to which the victim is subject for the purposes of valuing his position in the labour context.

VI – In a situation where the victim, having already obtained compensation for loss of earning capacity in labour, was 43 years old at the time of the accident, endured a long period of convalescence, being 49 years old at the time of the medico-legal consolidation of the injuries, leaving a permanent functional deficit in the physical-psychic integrity of 34 points, not having resumed her professional life and having been retired (in 2020), bearing limitations for the acts of daily, family and social life, suffering from depression and permanently needing medication, treatments, consultations and the aid of a cervical collar, it is appropriate and balanced to award compensation for biological damage in the amount of 125.000,00.

VII – The amount of €140.000,00 is adequate, balanced and proportional to compensate for the non-pecuniary damage suffered by the injured party, a cheerful, healthy and active person, aged 43, who earned an annual income of €30.699,06 as an employee of a banking institution and who suffered multiple injuries as a result of being hit by a car including head and cervical spine trauma and subsequent reactive depressive disorder, and underwent two surgical interventions, treatments, examinations, consultations, with a long period of convalescence, a quantum doloris of grade 6, permanent repercussions on sexual activity set at grade 4 on a scale of 7 grades, with a permanent future need for medication, treatments and technological help to overcome anatomical and functional limitations.”

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/28c8b60782a411ba802589ea0040fe8c?OpenDocument

Judgement of the Lisbon Court of Appeals, of July 6, Case no. 3016/19.0T8PDL.L1-2: Third Third Parties. Registry. Mortgage.

Summary:

“I – Considering the restricted legal concept of third parties for the purposes of registration (those who have acquired mutually incompatible rights from a common author), facts subject to registration but not registered have a very broad general effectiveness, which goes far beyond mere invocability between the parties themselves or their heirs.

II – Since A has given B building 1, encumbered with a mortgage up to the value of x to guarantee payment of A’s debt to C, if A subsequently manages to register the annexation to building 1 (already owned by B, but not yet registered) of building 2, with the same mortgage, up to the same value and to guarantee the same credit, falling on both buildings, that annexation does not increase the liability of building 1.

III – Since the mortgage on building 1 remains unchanged in its maximum value and in the obligations whose fulfilment it guarantees, the attachment of building 2 is not incompatible with the previous transfer in lieu of payment of building 1.

IV – C, the beneficiary of the mortgage, did not acquire any right over building 1 given in fulfilment to B (already encumbered by the mortgage) with that annexation that he did not have before the transfer.”

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/238e1297b0ffbd2d802589eb0048a75d?OpenDocument

Judgement of the Guimarães Court of Appeals, of July 10, Case no. 1930/19.1T8GMR-A.G1: Claiming of Credits. Res Judicata.

Summary:

“I – In a claim for credits in enforcement proceedings, the request made by competing creditors is twofold: to know of the existence of the credits (verification) and to make their graduation with the credit of the enforcer, due to the real guarantees recognised to them.

II – Once the judgement verifying and ranking the claims has been delivered, the creditor who lodges his claim after it has been delivered cannot challenge the claims that have already been verified. The new judgement only takes cognisance of the existence of the new claim and its guarantees, re-establishing the grading of the previous one.”

http://www.dgsi.pt/jtrg.nsf/86c25a698e4e7cb7802579ec004d3832/39c824c71a00fb37802589f800309989?OpenDocument

Judgement of the Guimarães Court of Appeals, of July 10, Case no. 5294/21.5T8VNF-A.G1: Commercial Lease. Transfer of business. Nullity.

Summary:

I – The title of the document does not define the type of business that has been concluded between the parties. It is the declarations of will expressed by the parties and set out therein, interpreted in accordance with the rules laid down in Articles 236 et seq. of the Civil Code, which will define, in the light of the principle of freedom of contract, the contracts (typical or atypical) the contracts they have celebrated.

II – In contracts in which the reduction to writing constitutes a formality “ad substantiam”, and the real will of the parties is known, the real will prevail provided that it has a minimum of correspondence in the text of the respective document, even if imperfectly expressed.

III – In the present case, it is apparent from the statements of the parties, set out in the authenticated document given for execution (“Agreement of Confession of Debt and Payment in Instalments”), entered into a contract of transfer (definitive transfer of a commercial establishment).

IV – Thus, even if, when the transfer was agreed, that agreement was not immediately reduced to writing, it was subsequently so with the conclusion of the agreement contained in the aforementioned notarised document given to the execution, where the parties declare that such transfer of the commercial establishment has occurred, the respective price, of which the defendant confesses to be a debtor, and the method of payment.

V – Therefore, the definitive transfer of the commercial establishment is not void. As such, the obligation underlying the confession of debt and agreement to pay the respective price has cause and is due.”

http://www.dgsi.pt/jtrg.nsf/86c25a698e4e7cb7802579ec004d3832/6b6736fc30ac509c802589f90033d549?OpenDocument

III.4. Administrative and Tax Courts

Judgement of the Supreme Administrative Court, of July 13, Case no. 0223/21.9BEBRG: Social Security. Leave. Allowance. Family.

Summary:

“I – The foster family member of a minor, within the scope of application, by CPCJ (“Commission for the Protection of Children and Young People”), of the promotion and protection measure of “Support with another family member”, provided for in art. 35 no. 1 b) of DL 147/99, of 1/9 (“Law for the Protection of Children and Young People in Danger”), benefits, as stipulated in art. 24, no. 5 of DL 12/2008, of 17/1, “under the terms of the applicable application”, from “the allocation of family benefits according to the children and young people”.

II – Thus, it is included in the concept of “person to whom the judicial or administrative trust of a minor has been granted” (even if not with a view to his adoption), provided for – alongside “parents”, “adopters”, and “guardians” – in paragraph 1 of art. 5 of DL 91/2009, of 9/4 (“Legal Regime of Social Protection in Parenthood within the Social Security System and the Solidarity Subsystem”), as well as – alongside “adopters” and “guardians” – in the provision of art. 64 of the Labour Code (Law 7/2009, of 12/2).

III – Article 64 of the Labour Code only provided, at the time of the facts, in paragraph 1(b), the right, among others, to complementary parental leave, in any of its modalities, but not to initial parental leave, a circumstance that the legislator later rectified, including it in that paragraph, through the wording conferred by Law 13/2023, of 3/4.

IV – The right to initial parental leave and, consequently, to the corresponding initial parental allowance (either by extensive interpretation of the extended parental allowance already expressly provided for at the time, or by filling a gap, in a manner similar to that subsequently established by the legislator) should be recognised to the Plaintiff, who was a foster family member of a nephew following childbirth, due to the incapacity of the parents, who had to miss work, with loss of pay, to care for the newborn child entrusted to her administratively).”

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/4986fb1f56128ddd802589f0004e78d0?OpenDocument

Judgment of the Supreme Administrative Court, of July 13, Case no. 02453/15.3BELRS: Judicial Impugnation. Municipal Property Tax. Surface Right.

Summary:

“I – The power to build on another person’s land constitutes the surface right, regulated in Articles 1524 et seq. of the Civil Code (CC), and the Applicant is the holder of a surface right of the land on which she herself built the properties to which the assessments relate, having thus acquired the quality of surface owner of the works she built, in the exercise of the right of private use of the land.

II – The tax legislator, in the Municipal Property Tax Code (CIMI), separated the moment of acquisition of the surface right from that at which it is exercised and treated those two constituent faculties of the surface right differently, determining in Article 8, no. 2 of the CIMI that, in cases of surface right, the tax is payable by the superficiary after the start of the construction of the work or the end of the planting.

III – Therefore, when the surface right consists of the power to build or maintain a work on another person’s land, the superficiary (holder of the surface right) is subject to IMI from the year, inclusive, in which the construction begins, while in situations where the surface right consists of the power to make or maintain plantations on another person’s land, the superficiary is only subject to IMI from the year, inclusive, in which the plantation ends.”

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/774b0760198d37b0802589f0003677e7?OpenDocument

Judgement of the Supreme Administrative Court, of July 13, Case no. 04/16.1BECBR: Municipal Property Tax. Liquidation. Divisible Act. Partial Cancellation.

Summary:

“I – The Municipal Property Tax, created by the Municipal Property Tax Code (IMT – approved by Decree-Law 287/2003, of 12 November), a tax that replaced the Municipal Contribution, should be considered a property tax that is levied on the value of the buildings located in the territory of each municipality, being divided, according to the classification of the same buildings, into rustic and urban. The taxable person of the I.M.I. legal-tax relationship is the one who on 31 December of the year to which the tax relates has the use and enjoyment of the building, whether owner or usufructuary, and the taxable amount of the tax (generic objective assumption of any legal-tax relationship) is constituted by the taxable value of the buildings, which consists of their patrimonial value (cf. preamble and articles 1, 2, 7 and 8 of the C.I.M.I.).

II – The divisibility of the tax act is the argument used by case law to support the possibility of a judicial decision to partially annul tax acts. On the basis of the classification of divisible administrative acts, the case law of the Higher Courts has often held that acts imposing an obligation to pay a sum of money, such as tax assessments, are naturally divisible since they correspond to a pecuniary amount and are determined by arithmetical operations, which divisibility also results from the law itself, and therefore their partial annulment is admissible when the grounds for annulment affect only part of the act.

III – If the act of liquidation has a single legal basis, and it is not possible to distinguish between a part that complies with the law and the one that infringes it, partial annulment cannot be ordered, even if it is understood that, by virtue of other legal provisions, a liquidation could take place. This could be the case, for example, where a liquidation was based on a certain tax rate scale and it is realised that the legally applicable scale would be different. In such situations, the entire liquidation is based on incorrect legal grounds, and the act must therefore be annulled in its entirety on the grounds of an error in the assumptions of law (breach of law).”

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/c6ed5d10c10f5ae5802589ec00447fb3?OpenDocument

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

Paulo de Tarso Domingues, A vinculação Societária – A Estrutura Piramidal da Vinculação das Sociedades, Almedina, julho 2023.

António Menezes Cordeiro, Direito Bancário I – Direito Material, Almedina, julho 2023.

Afonso Brás, O Conceito Funcional de Norma na Jurisprudência do Tribunal Constitucional, Almedina, julho 2023.

Pedro Gama da Silva, A Prescrição no Direito Penal Português, Almedina, julho 2023.

Teresa Cândido de Oliveira, A Figura da Expert Witness no Processo Penal, Almedina, julho 2023.

Rita Leandro Vasconcelos, Medidas de Correção em Abuso de Posição Dominante, Almedina, julho 2023.

Paula e Hélder Quintas, Manuel de Direito do Trabalho e de Processo do Trabalho Almedina, julho 2023.

Victor Hugo Ventura, O Regime do Contrato de Trabalho Desportivo, Almedina, julho 2023.

Rui Ataíde, Francisco Rodrigues Rocha, Vítor Palmela Fidalgo, Estudos de Direito do Consumo – Volume IV, Almedina, julho 2023.

IV.1.2. Generic Guidelines & Cia

Order nº 7673-B/2023, of July 24, of the Secretary of State for Tax Affairs

Subject: Approves the amendments to the tables of withholding tax income from dependent work and pensions earned by resident holders on the continent to be in force during the second half of the year of 2023.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/diplomas_legislativos/Documents/Despacho_7673_B_2023.pdf

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

On July 27, the Council of Ministers approved the decree-law extending the temporary mechanism for extraordinary professional diesel and the transitional regime for the granting of the social mobility allowance and amending the transitional regime for the stabilisation of gas prices by juridical people with consumption of more than 10 000m3. The diploma also creates extraordinary financial support to mitigate the effects of escalating fuel and electricity prices in the freight transport sector and in the rail freight transport sector.

Furthermore, the following was approved:

  • The National Plan for the Reduction of Addictive Behaviours and Dependencies 2030 and the Action Plan for the Reduction of Addictive Behaviours and Dependencies – Horizon 2024, with the aim of significantly reducing a wide range of addictive behaviours and dependencies;
  • The proposal for multi-annual programming of expenditure in the context of investments covered by the reprogramming of the Recovery and Resilience Plan, guaranteeing its predictability and ensuring that the implementation of the planned projects is not disrupted.

In addition, the Government has revised the decree-law establishing the terms of implementation of the mechanisms for accelerated career progression for early childhood educators and primary and secondary school teachers, seeking to incorporate the suggestions made in the communication accompanying the devolution.

https://www.portugal.gov.pt/pt/gc23/governo/comunicado-de-conselho-de-ministros?i=564

IV.2.2. Industrial Property

On July 6 the conclusions of the International Conference “Reflecting on Industrial Property, Sustainability and the Future of the Planet”, an event organised on 29 and 30 May 29 and 30 of 2023, in Lisbon, by INPI, in collaboration with the World Intellectual Property Organisation (OMPI), the European Patent Office (IEP) and the European Union Intellectual Property Office (EUIPO), have been made available for consultation.

The document provides a review of the different panels of the Conference, a statistical analysis of the audience and their satisfaction levels as well as the main indicators of the communication plan outlined for this event.

The conference was attended by around 400 national and international participants from more than 80 countries, including the heads of the IP Offices of the EPO Member States, the EUIPO, the Community of Portuguese Speaking Countries and the Ibero-American Industrial Property Programme, as well as members of the Government, the private sector and Academia.

https://inpi.justica.gov.pt/Noticias-do-INPI/Conferencia-sobre-Propriedade-Industrial-e-ODS-conclusoes

On July 7 the 64th series of meetings of the Assemblies of the Member States of the World Intellectual Property Organisation (OMPI) was held, which this year included an event dedicated to Portugal, consisting of a stand alluding to Geographical Indications (IG) and Designations of Origin (DO) of national origin, where some of the national products protected by these Industrial Property Rights (DPI) will be exhibited over the next few days. This initiative aims to promote the Lisbon System for the international registration of GIs and DOs, as symbols of product guarantee and quality, and to promote the Portugal Brand.

https://inpi.justica.gov.pt/Noticias-do-INPI/Assembleias-Gerais-da-OMPI-acolhem-evento-dedicado-a-Portugal

 On July 14, the provisional statistical data regarding the applications and grants of Industrial Property Rights (DPI), for the month of June of 2023, were made available. From this statistical data, we can highlight the following:

i) In the first six months of the year, 424 national invention applications were submitted (less than the 454 applications submitted in the same period of the previous year). With regard to concessions, 106 national inventions were granted, compared to the 115 granted in the same period of 2022, which represents a decrease of 7.8%;

ii) The total number of International (PCT) and European Patent Applications, filed at INPI as a Receiving Office, was 28 applications between January and June of 2023 (33 in 2022). The number of European Patent validations, submitted in Portugal in the first six months of the year, decreased 28.7% when compared to the same period in the previous year (1.435 in 2023, 2.012m in 2022);

iii) National Trademarks and Other Distinctive Trade Signs (OSDC) registered 11.241 applications from January to June of 2023 (higher than the 10.713 applications submitted in the same period of 2022), representing an increase of 4,9%. In the same period, 8.207 National Trademarks and OSDC were granted (8.146 in 2022);

iv) The number of objects included in national Design applications went from 516 between January to June 2022 to 494 in the same period of 2023, representing a decrease of 4,3%.

All statistical reports (annual and semi-annual) and monthly data related to applications and granting of Industrial Property Rights are available at the IP Observatory.

https://inpi.justica.gov.pt/Noticias-do-INPI/Direitos-de-Propriedade-Industrial-janeiro-a-junho-2023

 

Refer to