I. EDITORIAL – AMENDMENT TO VARIOUS EXCEPTIONAL AND TEMPORARY REGULATIONS TO MITIGATE THE INCREASE IN ENERGY PRODCUT PRICES; SETTING OF LIMITS FOR THE COMPENSATION DUE TO THE WORKER FOR THE ADDITIONAL COSTS OF REMOTE WORK
The month of September was marked, at a legislative level, by the publication of Decree-Law no. 79-A/2023, of September 1, which amends various exceptional and temporary regulations to mitigate the increase in energy product prices and by the publication of Ordinance no. 292-A/2023, of September 29, which approves the setting of limits for the compensation due to the worker for the additional costs of remote work, which does not constitute income for tax purposes or as a basis for social security contributions.
Also noteworthy, at the legislative level, are:
- Law no. 55/2023, of September 8, which clarifies the sanctioning regime for the possession of drugs for consumption regardless of quantity and establishes regular deadlines for updating the regulations, amending Decree-Law no. 15/93, of January 22, and Law no. 30/2000, of November 29;
- Ordinance no. 281-A/2023, of September 13, declaring the installation of the specialized subsections of the central administrative courts.
Within the scope of case law, it is worth highlighting the Judgment of the Supreme Court of Justice, of September 29, Case no. 1570/18.2T8TMR-B.L1.S1, in which it was decided that: “I- The collective dismissal decision that dismissed a certain employee for having a lower level of evaluation must contain the objective criteria for evaluating the performance of comparable employees, so that the Court can assess and decide whether the dismissal of that employee was justified.
II- The prohibition on processing personal data laid down in Article 9(1) of the General Data Protection Regulation of the European Union is excluded if the processing is necessary for the defence of a right in legal proceedings or whenever the courts act in the exercise of their judicial function;
III- Since the Constitution of the Portuguese Republic prohibits dismissals without just cause or for political or ideological reasons, the exception to the prohibition on processing personal data in the context of a legal challenge to dismissal is justified.“.
Finally, under Miscellaneous, it is worth highlighting the approval of the Decree-Law that establishes a legal regime for full dedication in the National Health Service (SNS) and the regime for the organization and operation of family health units (USF), also updating the remuneration scales for doctors and interns.
Decree-Law no. 79-A/2023, of September 1: Amends various exceptional and temporary regulations to mitigate the increase in energy product prices.
Declaration of Rectification no. 19/2023, of September 6: Rectifies Organic Law no. 2/2023, of August 18, which approves the military infrastructure law.
Ordinance no. 276/2023, of September 6: Establishes the Justice of the Peace for the Alvaiázere, Ansião, Figueiró dos Vinhos, Pedrógão Grande and Penela municipalities and approves its Internal Regulations.
Law no. 55/2023, of September 8: Clarifies the sanctioning regime for the possession of drugs for consumption regardless of quantity and establishes regular deadlines for updating the regulations, amending Decree-Law no. 15/93, of January 22, and Law no. 30/2000, of November 29.
Ordinance no. 279/2023, of September 11: Defines the minimum capital and other minimum conditions of third-party liability insurance provided for in article 19 of Decree-Law no. 16/2019, of January 22, and the limit of the State’s right of recourse, under the terms of article 18 of Decree-Law no. 16/2019, of January 22.
Ordinance no. 281-A/2023, of September 13: Declares the installation of the specialized subsections of the central administrative courts.
Ordinance no. 282/2023, of September 14: Creates the “Programa Qualifica Indústria”, aimed at small and medium-sized enterprises (SMEs) in the industrial sectors, designed to support processes of qualification and re-qualification of workers, preventing future unemployment.
Declaration of Rectification no. 20/2023, of September 19: Rectifies the Rules of Procedure of the Assembly of the Republic no. 1/2023, of August 9 – first amendment to the Rules of Procedure of the Assembly of the Republic, approved by the Rules of Procedure of the Assembly of the Republic no. 1/2020, of August 31.
Declaration of Rectification no. 21/2023, of September 19: Rectifies Law no. º 52/2023, of August 28 – completes the transposition of the Council’s Framework Decision 2002/584/JHA, of June 13, 2002, Directive (EU) 2010/64, of the European Parliament and of the Council, of October 20, 2010, Directive (EU) 2012/13, of the European Parliament and of the Council, of May 22, 2012, and Directive (EU) 2013/48, of the European Parliament and of the Council, of October 22, 2013, on criminal procedure and the European arrest warrant, and amends Law no. 65/2003, of August 23 and the Code of Criminal Procedure.
Decree-Law no. 82/2023, of September 22: Updates the regime governing the non-professional use of plant protection products in the domestic environment.
Decree no. 25/2023, of September 22: It classifies the buildings of the Rector’s Office, Law School, and Letters School, including their integrated movable heritage, and the “Alameda da Universidade” as assets of national interest, and designates them as “national monuments”.
Ordinance no. 288/2023, of September 22: Amends the Regulations of Territorially-Based Sports Betting, approved in the annex to Ordinance no. 173/2015, of June 8;
Ordinance no. 290/2023, of September 28: Accumulation of the pensions from disability, retirement, old age, or survival.
Ordinance no. 292-A/2023, of September 29: Approves the setting of limits for the compensation due to the worker for the additional costs of remote work, which does not constitute income for tax purposes or as a basis for social security contributions.
III.1. Court of Justice of the European Union
Judgement of The Court of Justice (First Chamber) of September 7, Case no. C-162/22: Reference for a preliminary ruling. Telecommunications. Processing of personal data in the electronic communications sector. Directive 2002/58/EC. Scope. Article 15(1). Data retained by providers of electronic communications services and made available to authorities in charge of criminal proceedings. Subsequent use of those data in an investigation into misconduct in office.
“Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding the use, in connection with investigations into corruption-related misconduct in office, of personal data relating to electronic communications which have been retained, pursuant to a legislative measure adopted under that provision, by providers of electronic communications services and which have subsequently been made available, pursuant to that measure, to the competent authorities for the purpose of combating serious crime.”
Judgement of the Court of Justice (Seventh Chamber) of September 14, Case no. C-632/21: Reference for a preliminary ruling. Judicial cooperation in civil matters. Regulation (EC) No 593/2008. Law applicable to contractual obligations. Scope. Timeshare contracts. Legal proceedings seeking a declaration that those contracts are void. United Kingdom nationals. Choice of applicable law. Article 3. Freedom of choice. Article 4(1)(b) and (c). Applicable law in the absence of a choice made by the parties. Article 6. Consumer contracts. Limits.
“1. The provisions of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) are applicable, in the context of a dispute before a court of a Member State, to contracts the two parties of which are United Kingdom nationals, to the extent that those contracts have a foreign element.
2. Article 6(2) of Regulation No 593/2008 must be interpreted as meaning that: where a consumer contract fulfils the requirements laid down in Article 6(1) of that regulation, the parties to that contract may, in accordance with Article 3 of that same regulation, choose the law applicable to that contract, provided, however, that that choice does not result in depriving the consumer concerned of the protection afforded to him or her by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of Article 6(1), which provides that such a contract is to be governed by the law of the country where the consumer has his or her habitual residence; in view of the mandatory and exhaustive nature of that same Article 6(2), it is not possible to derogate from that provision for the benefit of legislation allegedly more favourable to the consumer.”
Judgement of the Court of Justice (Seventh Chamber) of September 14, Case no. C-821/21: Reference for a preliminary ruling. Judicial cooperation in civil matters. Jurisdiction and recognition and enforcement of judgments in civil and commercial matters. Regulation (EU) No. 1215/2012. Special jurisdiction. Jurisdiction over consumer contracts. Article 18(1). Concept of ‘other party to a contract’. Article 63. Domicile of a legal person. Regulation (EC) No 593/2008. Law applicable to contractual obligations. Choice of applicable law. Article 3. Freedom of choice. Article 6. Consumer contracts. Limits. Contract concluded with a consumer concerning timeshare rights in tourist accommodation by a means of a points scheme.
“1. Article 18(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the expression ‘other party to a contract’, in that provision, must be understood as referring only to the natural or legal person who is a party to the contract in question and not to other persons, not parties to that contract, even if they are connected with that person.
2. Article 63(1) and (2) of Regulation No 1215/2012 must be interpreted as meaning that the determination, in accordance with that provision, of the domicile of the ‘other party to a contract’, within the meaning of Article 18(1) of that regulation, does not constitute a limitation of the choice which the consumer may make under that Article 18(1). In that regard, the clarifications provided in Article 63(2) concerning the concept of ‘statutory seat’ constitute autonomous definitions.
3. Article 3 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) must be interpreted as not precluding a choice-of-law clause in the general terms and conditions of a contract or in a separate document to which that contract refers and which has been provided to the consumer, provided that that clause informs the consumer that he or she enjoys, in any event, under Article 6(2) of that regulation, the protection afforded to him or her by the mandatory provisions of the law of the country in which he or she has his or her habitual residence.
4. Article 6(1) of Regulation No 593/2008 must be interpreted as meaning that where a consumer contract fulfils the requirements set out in that provision and in the absence of a valid choice of law applicable to that contract, that law must be determined in accordance with that provision, which may be relied on by both parties to that contract, including the professional, notwithstanding the fact that the law applicable to the contract in accordance with Articles 3 and 4 of that regulation may be more favourable to the consumer.”.
III.2. Constitutional Court
Judgement of the Constitutional Court no. 545/2023, of September 26, Case no. 312/2023:
“In these terms and on these grounds, it is decided to:
a) Declare unconstitutional the rule contained in Article 4(6) of Law no. 74/2013, of September 6, as amended by Law no. 33/2014, of June 16, in the interpretation set out in the judgment under appeal, according to which the application of the disciplinary sanction of suspension for one match and a fine of 1.5 Account Units, provided for in Article 164(7) of the Disciplinary Regulations for Competitions Organized by the Portuguese League (Liga Portugal), 2020-2021 season when issues arising from the application of technical and disciplinary rules directly concerning the practice of the sporting competition itself are at stake, is excluded from the jurisdiction of the Court of Arbitration for Sport and is therefore not subject to any judicial review;
b) Dismiss this constitutionality appeal;
c) Order the appellant to pay costs, given that this appeal is unfounded, setting the court fee, taking into account, in a combined and proportionate manner, the complexity and nature of this case, the relevance of the interests at stake in these proceedings and the appellant’s own procedural activity, as well as the Constitutional Court’s procedural practice in this area, at 25 (twenty-five) Units of Account (under the terms of article 84, no. 2, of the Constitutional Court Code). Article 84(2) of the LTC and Articles 2, 6(1) and 9(1) of Decree-Law no. 303/98 of October 7, in its current wording and always applicable by reference to Article 84(5) of the LTC).”
III.3. Judicial Courts
Judgement of the Supreme Court of Justice, of September 29, Case no. 1570/18.2T8TMR-B.L1.S1: Collective dismissal. Evaluation. Personal Data. Restriction of Rights. Fundamental Rights.
“I- The collective dismissal decision that dismissed a certain employee for having a lower level of evaluation must contain the objective criteria for evaluating the performance of comparable employees, so that the Court can assess and decide whether the dismissal of that employee was justified.
II- The prohibition on processing personal data laid down in Article 9(1) of the General Data Protection Regulation of the European Union is excluded if the processing is necessary for the defense of a right in legal proceedings or whenever the courts act in the exercise of their judicial function;
III- Since the Constitution of the Portuguese Republic prohibits dismissals without just cause or for political or ideological reasons, the exception to the prohibition on processing personal data in the context of a legal challenge to dismissal is justified.”
Judgement of the Lisbon Court of Appeals, of September 13, Case no. 9073/22.4T8ALM.L1-4: Non-Competition Clause. Suspensive Condition. Nullity.
“I – The non-competition clause is onerous and bilateral in nature, with the aim of providing economic compensation to the employee for the damage he may suffer as a result of the limitation of his freedom to work.
II – The addition to the non-competition clause of a suspensive condition which makes the effectiveness of the clause dependent on an assessment by the employer, at the time of termination of the contract, as to whether it is appropriate for him to invoke this obligation at that time, makes it possible for the employer to benefit from the non-compete clause (which makes it difficult for the employee to terminate or resign during the term of the contract, limiting the freedom to leave), without having to pay any consideration, which, in addition to being contrary to the principle of objective good faith, violates the legal requirement of onerousness of the non-competition pact prescribed in Article 136(2) of the Civil Code. This, in addition to being contrary to the principle of objective good faith, violates the legal requirement for a non-competition agreement to be onerous, as laid down in Article 136(2)(c) of the Labor Code and renders such a contractual clause null and void.
III – This nullity is known of its own motion.”.
Judgement of the Lisbon Court of Appeals, of September 14, Case no. 3944/11.0TBALM-C.L.1-6: Third Party Objection. Judicial Sale of Pledged Property. Property Partly Belonging to the Executed Party.
“I – The fact that a property was seized and sold in its entirety, while only the undivided half of it belonged to the Executed Party and, therefore, only that half was liable for the latter’s debt, does not alter or erase the legal reality, nor does it annul the rights of the Appellant, heir of the other co-owner.
II – The Appellants father’s right of ownership over half of the property was passed on to the Appellant, by way of succession, upon his death.
III – As the Appellant owns half of the building that was sold, this right now applies, in the same proportion, to the amount that remained from the sale of the property, half of which belongs to the Executed Party and the other half to the Appellant.”.
Judgement of the Porto Court of Appeals, of September 18, Case no. 3423/21.8T8MAI.P1: Labour credits. PER. Out-of-court confession. Christmas Allowance.
“I – Labour claims due on the date of the appointment of a provisional judicial administrator within the scope of the PER are subject to the revitalisation plan, like the rest of the company’s debts, and are only unenforceable against the worker if they infringe the constitutional principles of wage protection or the principle of equality.
II – Non-payment of wages owed on the date of the appointment of a provisional judicial administrator under the PER cannot be grounds for termination of the employment contract, with just cause, since from that point onwards payment of these debts will have to be made in accordance with the terms of the revitalisation plan.
III – A declaration made on an unemployment benefit application form stating that the employee has terminated their employment agreement with just cause does not constitute an out-of-court confession.
IV – Since the letter terminating the employment agreement states that, in addition to the non-payment of wages, which cannot be considered for the purposes of just cause because they are included in the PER, the employer did not pay the first wage after the date for claiming the credits in the PER, the objective just cause for termination must also be considered to have been invoked, due to the lack of punctual payment of this remuneration.
V – The Christmas subsidy is equal in value to the basic salary, excluding salary supplements, and the same applies to the calculation of the hourly rate, for the purposes of payment of the claim for lack of professional training.”
Judgement of the Coimbra Court of Appeals, of September 12, Case no. 155/23.6T8CBR.C1: Inventory Subsequent to Divorce. Construction of an Urban Building on Land Donated to One of the Former Spouses. Ownership of the Land Owner. Improvements. Compensation.
“1. The realisation, during the marriage, of a construction (urban building) on the land donated to one of the former spouses, in which the marriage was celebrated under the communion of acquired property, must be qualified as an improvement that is included in the communion.
2. This building falls within the ownership of the owner of the land, by virtue of the principle of rights in rem of specialisation or individualisation, giving rise to a claim for compensation, so the value of the building carried out (by both spouses) during their marriage must be listed as a benefit in the inventory following the divorce, so that the compensation due to the joint owned property can be carried out.
3. The aforementioned framework, which is in line with the definitive ownership order, respects the principles of the law of things, namely typicality (art. 1306 CC) and specificity or individualisation.”
Judgement of the Évora Court of Appeals, of September 14, Case no. 331/10.1T2ODM.E.1: Judicial Administrator. Supplementary Renumeration. Calculation.
“1 – Article 23 of the Statute of the Judicial Administrator, as amended by Law no. 9/2022, of 11 January, shall apply to the setting of the remuneration of the insolvency administrator that takes place after the entry into force of this law, even if in return for the exercise of functions performed previously.
2 – The increase established in paragraph 7 of that article shall be made on the basis of the percentage of the value of the claims and admitted claims that obtain satisfaction.”
Judgement of the Évora Court Of Appeals, of September 14, Case no. 271/22.1T8SNS.E1: Labour Agreement. Probationary period. Professional Training. Suspension.
“I – Article 113(1) of the Labour Code does not prohibit the possibility of the training course, given to the worker during the trial period, to be longer than half of that period.
II – The legislator’s intention with this article was to adopt a compromise position, determining, on the one hand, that part of the training should be included in the calculation of the probationary period, in order to safeguard the worker’s interests in not having too long a period of training; and, on the other hand, that at least half of the probationary period should result in the worker carrying out their actual duties, in order to safeguard the employer’s interests in carrying out a consistent and considered assessment of the worker’s suitability for their job.
III – Thus, any training period that exceeds half of the probationary period determines the suspension of this period, which will only be counted again once the training course has ended.”
III.4. Administrative and Tax Courts
Judgement of the Administrative Supreme Court, of September 7, Case no. 01327/06.3GBCLSB: Execution of Judgement. Damages. Compensation.
“In cases where, as a result of the annulment of the acts of a call for tenders, the defendant administrative body is obliged to initiate a new call for tenders procedure, the only damages that can be legally claimed as a legitimate cause for non-enforcement of the judgement by those who had the expectation of benefiting from the results of the annulled call for tenders acts are the damages of the loss of chance (frustration of the right to participate in the procedure and frustration of potential rights that could have been constituted in that context) and not the damages for the sacrifice of rights that could have been constituted as a result of the said call for tenders.”
IV.1.1. Monographs and Periodicals
Rui Soares Pereira, Joana Costa Lopes, Direito Sancionatório de Valores Mobiliários, Almedina, September 2023.
Paula Rosado Pereira, Manual de IRS – Edição Universitária, Almedina, September 2023.
Fernando Torrão, Direito Penal: Teoria da Infração e Formas Especiais do Crime, Almedina, September 2023.
Luís Menezes Leitão, Direito da Insolvência, Almedina, September 2023.
António Menezes Cordeiro, Tratado de Direito Civil – Volume X: Direito das Obrigações, Almedina, September 2023.
Wladimir Brito, Direito Internacional Público, Almedina, September 2023.
António Monteiro Fernandes, Direito do Trabalho, Almedina, September 2023.
Rui Polónia, Direito das Sociedades Comerciais, Almedina, September 2023.
Diogo Leite de Campos, Lições de Direito da Família, Almedina, September 2023.
Luís Menezes Leitão, Direitos de Autor, Almedina, September 2023.
Catarina Monteiro Pires, Impossibilidade da Prestação, Almedina, September 2023.
Joaquim Freitas da Rocha, Introdução ao Planeamento Fiscal, Almedina, September 2023.
IV.1.2. Generic Guidelines & Cia
Circular Letter no. 20260/2023 of September 14, by order of the Deputy Director-General of IR and International Relations
Subject: IRC – Tax incentive for salary valorisation – Article 19-B of the EBF.
Circular Letter no. 25001/2023, of September 25, by order of the Deputy Director-General of IR and International Relations
Subject: VAT – Protections.
IV.2.1. Economy, Finance and Taxation
On September 7, the Council of Ministers approved a draft law, to be submitted to the Assembly of The Republic, which extends the transitional application of the VAT exemption for certain food products until December 31, 2023. This extension is due to the proportional and consequent reduction in product prices, which has eased the financial pressure on families’ budgets and provided them with significant monthly savings.
In addition, on the same day, expenditure was approved for the following procedures;
– Acquisition of vaccines against COVID-19, for the years 2023 to 2026, through the centralized European procedure, under the European Commission Decision of 18 June 2020;
– Conclusion of the contract for the construction of the New Building fot the Letter’s School of the University of Lisbon;
– Acquisition of postal services for the years 2024 to 2027, to be carried out by the National Republican Guard;
– Acquisition by the National Road Safety Authority of postal services for the years 2024 to 2026.
On September 14, the Council of Ministers approved a Decree-Law that establishes a legal regime for full dedication in the National Health Service (SNS) and the regime for the organization and operation of family health units (USF), as well as updating the remuneration scales for doctors and interns. The amendment to the legal framework for the organization and operation of USFs aims to generalize and update the remuneration system and the incentives to be given to their members, with the aim of improving access, quality, efficiency and the integration of care, in the light of existing health needs.
On the same day, the Decree-Law that restructures the organization of the SNS was also approved, integrating hospitals, hospital centers and groups of health centers into a single entity that takes the form of local health units (ULS), with the aim of providing greater integration of care and more rational management of care provision.
IV.2.2. Industrial Property
On September 12, the provisional statistical data regarding the applications and grants of Industrial Property Rights (IPR), for the month of August 2023, were made available. From this statistical data, we can highlight the following:
i) In the first seven months of the year, 560 applications were submitted (less than the 581 applications submitted in the same period of 2022). Regarding the national invention grants, 130 national inventions were granted, compared to 145 granted in the same period of 2022, which represents a decrease of 10.3%.
ii) The number of European Patent validations, submitted in Portugal in the first six months of the year, decreased when compared to the same period in the previous year, decreasing from 2.328 validations filled to 1.665 in 2023.
iii) National Trademarks and Other Distinctive Trade Signs (ODS) registered 14.302 applications from January to August 2023 (higher than the 13.724 applications submitted in the same period of 2022), representing an increase of 4.2%. In the same period, 10.782 National Trademarks and ODS were granted (11.077 in 2022).
iv) The number of objects included in national Design applications decreased, going from 690 objects in January-August 2022 to 553 in the same period of 2023, representing a decrease of 19.9%.
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.
The European Union Intellectual Property Office (EUIPO) is making available the new edition of the European Union (EU) Support Fund for Small and Medium-sized Enterprises (SMEs), so that they can 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 budget for this initiative in 2023 is 25 million euros (for vouchers 1 and 2), 2 million euros (voucher 3) and 100,000 euros (voucher 4).
Applications can be made on the EUIPO website.
On September 27, INPI and the Order of Solicitors and Enforcement Agents (OSAE) signed a cooperation agreement between the two institutions, with a special focus on training. The aim of this partnership is to encourage training sessions on Industrial Property (IP) for OSAE members and their forensic employees, who can then periodically attend training sessions, with a view to ensuring permanent monitoring of the theoretical and practical evolution of their activity in the field of IP.
- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS