I. EDITORIAL – APPROVAL OF MEASURES IN THE FIELD OF HOUSING; ESTABLISHMENT OF THE MEASURE TO TEMPORARILY FIX THE PAYMENT OF CREDIT AGREEMENTS FOR THE PURCHASE OR CONSTRUCTION OF PERMANENT HOUSING AND REINFORCEMENT OF EXTRAORDINARY MEASURES AND SUPPORT IN THE FIELD OF HOUSING LOANS; JUDGEMENT OF THE COURT OF JUSTICE OF THE EUROPEAN UNION (CASE C-312/22)
The month of October was marked, in legislative terms, by the publication of Law no. 56/2023, of October 6, which approves measures in the field of housing, making several legislative amendments, and by the publication of Decree-Law no. 91/2023, of October 11, which establishes a measure to temporarily fix the payment of credit agreements for the purchase or construction of permanent housing and reinforces extraordinary measures and support in the field of housing loans.
Also noteworthy, at the legislative level, are:
- Law no. 57/2023, of October 10, which authorizes the government to create the database of disqualifications and expulsions and transposing Directive (EU) 2019/1151.
- Law no. 60/2023, of October 31, which authorizes the government to transpose Directive (EU) 2020/1828 of the European Parliament and of the Council, of 25 November 2020, in relation to collective actions concerning the protection of consumers’ interests.
- Law no. 60-A/2023, of October 31, which extends the transitional application of the VAT exemption for certain food products until 31 December 2023, amending Law no. 17/2023 of April 14.
Within the scope of case law, the month of October was marked by the Judgment of the Court of Justice (Sixth Chamber) of the European Union, of 12 October, Case C-312/22, concerning the interpretation of Article 56 of the Treaty on European Community (“TEC”), now Article 63 of the Treaty on the Functioning of the European Union (“TFEU”) and Article 2(4) of the Agreement between the European Community and the Swiss Confederation (“Agreement”), which provides for measures equivalent to those laid down in Council’s Directive 2003/48/EC on taxation of savings income in the form of interest payments.
MGRA – Sociedade de Advogados, SP, RL, representing the taxpayer, raised the issue in the main proceedings and the Portuguese Supreme Administrative Court (“STA”) referred it to the Court of Justice with the following formulation: “Is it in accordance with EU law that interest income from bonds and debt securities paid by a non-resident Swiss bank [in Portuguese territory] to [the appellant in the main proceedings] in 2005 should be subject to tax aggregation and thus taxed at the same rate of [personal income tax] as other income, which determines the respective taxation at a much higher rate than that which would have been due (the clearance withholding tax rate) if that income had been paid by a bank resident in Portuguese territory?”
The Portuguese Government and the European Commission argued against it, claiming, respectively and in summary, with the standstill clause (Article 64(1) of the TFEU) and that the freedom to provide services provided for in Article 56 of the TFEU (formerly Article 49 of the TEC) does not extend to the Swiss Confederation; however, the Court of Justice of the European Union upheld the taxpayer’s claims by reaching the following conclusions:
“1. Article 56 EC must be interpreted as precluding legislation of a Member State which subjects interest income received by taxpayers of that Member State to a progressive tax rate of up to 40% where that interest income is derived from bonds and debt instruments issued by an entity of another Member State or of a third State such as the Swiss Confederation and paid by such an entity, whereas, where such interest income derives from bonds and debt instruments issued and paid by an entity in their Member State of residence, it is taxed at a lower definitive rate of 20%.
2. Article 2(4) of the Agreement between the European Community and the Swiss Confederation providing for measures equivalent to those laid down in Council Directive 2003/48/EC on taxation of savings income in the form of interest payments, read in conjunction with Article 1(2) thereof, must be interpreted as precluding legislation of a Member State subjecting interest income received, from 1 July 2005, by taxpayers of that Member State who have opted for the voluntary disclosure procedure or otherwise declared that interest income to the tax authorities of their Member State of residence, in so far as it is not excluded from the retention under Article 1(2), to a progressive tax rate of up to 40% where that interest income is derived from bonds and debt instruments paid by a Swiss paying agent, whereas, where the same interest income is paid by a resident paying agent, it is taxed at a lower definitive rate of 20%.”.
Finally, in Miscellaneous, it is worth highlighting the approval by the Council of Ministers of the 2024 State Budget Law Proposal, which was presented to the Assembly of the Republic on October 10.
II. LEGISLATION
Ordinance no. 293/2023, of October 2: Amends the common fiscal marker approved by the Commission Implementing Decision (EU) 2022/197 of 17 January 2022 and approves the Regulation on the procedures for monitoring the use of coloured and marked gas oil.
https://files.diariodarepublica.pt/1s/2023/10/19100/0000200005.pdf
Resolution of the Council of Ministers no. 116/2023, of October 3: Approves the allocation of compensatory payments under the 4_18@escola.tp pass, the sub23@superior.tp pass and the Social + pass for the year 2023.
https://files.diariodarepublica.pt/1s/2023/10/19200/0000200004.pdf
Decree-Law no. 84/2023, of October 4: Amends the decree-law that creates the Agency for Development and Cohesion, I. P., and reviews the regime applicable to the integration of public workers who provide services to European funds.
https://files.diariodarepublica.pt/1s/2023/10/19300/0000300010.pdf
Law no. 56/2023, of October 6: Approves measures in the field of housing, making several legislative amendments.
https://files.diariodarepublica.pt/1s/2023/10/19400/0000200050.pdf
Resolution of the Council of Ministers no. 119/2023, of October 9: Approves the Multiannual Investment Plan in the Justice Area 2023-2027, authorising the respective expenditure and the assumption of multiannual costs.
https://files.diariodarepublica.pt/1s/2023/10/19500/0001100023.pdf
Law no. 57/2023, of October 10: Authorises the government to create the database of disqualifications and expulsions and to transpose Directive (EU) 2019/1151.
https://files.diariodarepublica.pt/1s/2023/10/19600/0000600007.pdf
Ordinance no. 305/2023, of October 10: Defines mechanisms for the automated revalidation of driving licences.
https://files.diariodarepublica.pt/1s/2023/10/19600/0017200174.pdf
Decree-Law no. 89/29023, of October 11: Creates the Institute for Addictive Behaviours and Dependencies, I. P.
https://files.diariodarepublica.pt/1s/2023/10/19700/0003100077.pdf
Decree-Law no. 90/2023, of October 11: Amends the legal framework for the simplified registration information system and the One Stop Shop of the Building.
https://files.diariodarepublica.pt/1s/2023/10/19700/0003100077.pdf
Decree-Law no. 91/2023, of October 11: Establishes a measure to temporary fix the payment of credit agreements for the purchase or construction of permanent housing and reinforcement of extraordinary measures and support in the field of housing loans.
https://files.diariodarepublica.pt/1s/2023/10/19700/0007800085.pdf
Regulatory Decree no. 3/2023, of October 11: Regulates the legal regime for the simplified registration information system and the One Stop Shop of the Building.
https://files.diariodarepublica.pt/1s/2023/10/19700/0009500129.pdf
Ordinance no. 306-A/2023, of October 12: Approves the Statutes of the Executive Board of the National Health Service, I. P.
https://files.diariodarepublica.pt/1s/2023/10/19801/0000200016.pdf
Decree-Law no. 97/2023, of October 17: It creates a regime to reduce the amount of tolls charged to users on motorway sections and sub-sections in the interior of the country or where there are no alternative routes that allow safe and high-quality use.
https://files.diariodarepublica.pt/1s/2023/10/20100/0004000041.pdf
Decree-Law no. 98/2023, of October 20: Creates the State social game called “Eurosorteio” and authorises Santa Casa da Misericórdia de Lisboa to operate it on an exclusive basis throughout Portugal.
https://files.diariodarepublica.pt/1s/2023/10/20400/0000300006.pdf
Ordinance no. 316/2023, of October 23: Approves the regulations for the Eurosorteio game.
https://files.diariodarepublica.pt/1s/2023/10/20500/0025500272.pdf
Ordinance no. 318-A/2023, of October 25: Regulates the operation and management of the public procurement portal, known as the “BASE portal”, provided for in the Public Procurement Code (CCP) and approves the data models to be transmitted to the BASE portal, for the purposes of the provisions of the CCP, revoking Ordinance no. 57/2018 of 26 February.
https://files.diariodarepublica.pt/1s/2023/10/20701/0001700065.pdf
Ordinance no. 319/2023, of October 26: Establishes the Justice of the Peace Court in the municipality of Santo Tirso and approves its internal regulations.
https://files.diariodarepublica.pt/1s/2023/10/20800/0000200004.pdf
Ordinance no. 324/2023, of October 27: Creates and regulates the “Support for hiring nannies in family daycares” measure.
https://files.diariodarepublica.pt/1s/2023/10/20900/0001800024.pdf
Ordinance no. 324-A/2023, of October 27: Approves the Statutes of the Agency for Integration, Migration and Asylum, I. P.
https://files.diariodarepublica.pt/1s/2023/10/20902/0000200012.pdf
Decree-Law no. 99-A/2023, of October 27: Approves the organisational structure of the Border and Immigration Coordination Unit.
https://files.diariodarepublica.pt/1s/2023/10/20903/0000200014.pdf
Law no. 59/2023, of October 31: Regime for state reimbursement on the price of thermal treatments prescribed by the National Health Service.
https://files.diariodarepublica.pt/1s/2023/10/21100/0000300004.pdf
Law no. 60/2023, of October 31: Authorizes the government to transpose Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 in relation to collective actions concerning the protection of consumers’ interests.
https://files.diariodarepublica.pt/1s/2023/10/21100/0000500006.pdf
Decree-Law no. 101/2023, of October 31: Approves the legal framework for the public service of passenger transportation by taxi.
https://files.diariodarepublica.pt/1s/2023/10/21100/0001700033.pdf
Law no. 60-A/2023, of October 31: Extends the transitional application of the VAT exemption for certain food products until December 31 of 2023, amending Law no. 17/2023 of April 14.
https://files.diariodarepublica.pt/1s/2023/10/21101/0000200003.pdf
III. CASE-LAW
III.1. Court of Justice of the European Union
Judgement of the Court of Justice (Fourth Chamber), of October 5, Case C-219/22: Reference for a preliminary ruling. Area of freedom, security and justice. Judicial cooperation in criminal matters. Framework Decision 2008/675/JHA. Taking account of convictions in the Member States in the course of new criminal proceedings. Article 1 no. 1. Scope. Article 3 no. 1, 3 and 4. Obligation to recognise the effects of previous convictions handed down in other Member States as equivalent to those attached to national convictions. Conditions. Imposition of a custodial sentence accompanied by a probationary suspension. New offence committed during the period of suspension. Revocation of suspension and effective execution of the custodial sentence. Interference with the previous conviction and any decision relating to its execution. Framework Decision 2008/947/JHA. Article 14 no. 1. Recognition of convictions with a view to the supervision of probation measures and the possible revocation of the suspension of execution.
Summary:
“Article 3 no. 3 and 4 of Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings must be interpreted as meaning that it does not preclude legislation of a Member State which permits a court of that State, seised, in the context of new criminal proceedings instituted against a person who has been subject to a final conviction to a sentence, accompanied by a probationary suspension, previously handed down in another Member State for different facts and not yet executed fully, of a request for execution of that conviction, to revoke that suspension and order the effective execution of that sentence, provided that the said conviction has been forwarded to and recognised in the Member State conducting the new criminal proceedings, in accordance with Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions.”
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62022CJ0219
Judgement of the Court of Justice (Sixth Chamber), of October 5, Case no. C-355/22: Reference for a preliminary ruling. Taxation. Common system of value added tax (VAT). Directive 2006/112/EC. Maintenance of the effects of national legislation incompatible with EU law.
Summary:
“A national court may not make use of a national provision empowering it to maintain certain effects of a provision of national law which it has found to be incompatible with Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, on the basis of an alleged impossibility of refunding the value added tax (VAT) wrongly levied to the customers of the services provided by a taxable person, in particular by reason of the large number of persons concerned or where those persons do not have an accounting system enabling them to identify those services and their value.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62022CJ0355
Judgement of the Court of Justice (Sixth Chamber), of October 12, Case no. C-57/22: Reference for a preliminary ruling. Social policy. Protection of the safety and health of workers. Organisation of working time. Directive 2003/88/EC. Article 7 no. 1. Right to paid annual leave. Worker unlawfully dismissed and then reinstated in his or her employment by decision of a court. Exclusion from the right to paid annual leave not taken for the period between the dismissal and the reinstatement. Period between the date of dismissal and the date of the reinstatement.
Summary:
“Article 7 no. 1 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as precluding national case-law by virtue of which a worker who was unlawfully dismissed and then reinstated in his or her employment, in accordance with national law, following the annulment of his or her dismissal by a decision of a court, is not entitled to paid annual leave for the period between the date of the dismissal and the date of his or her reinstatement in his or her employment on the ground that, during that period, that worker did not actually carry out work for the employer as the latter did not assign him or her work and as he or she is already entitled, under national law, to wage compensation during that period.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62022CJ0057
Judgement of the Court of Justice (Sixth Chamber), of October 12, Case no. C-312/22: Reference for a preliminary ruling. Article 56 EC. Free movement of capital. Personal income tax. Taxation of interest income from bonds and debt instruments. Interest due and paid by entities not resident in the national territory. Difference in treatment according to the place of establishment of the issuing entity and the paying entity for the interest concerned. Agreement between the European Community and the Swiss Confederation providing for measures equivalent to those laid down in Directive 2003/48/EC. Article 2 no. 4. Taxation of savings income in the form of interest payments from a Swiss source. Obligation to apply the same tax rates as those applied to similar domestic income.
Summary:
“1. Article 56 EC must be interpreted as precluding legislation of a Member State which subjects interest income received by taxpayers of that Member State to a progressive tax rate of up to 40% where that interest income is derived from bonds and debt instruments issued by an entity of another Member State or of a third State such as the Swiss Confederation and paid by such an entity, whereas, where such interest income derives from bonds and debt instruments issued and paid by an entity in their Member State of residence, it is taxed at a lower definitive rate of 20%.
2. Article 2 no. 4 of the Agreement between the European Community and the Swiss Confederation providing for measures equivalent to those laid down in Council Directive 2003/48/EC on taxation of savings income in the form of interest payments, read in conjunction with Article 1 no. 2 thereof, must be interpreted as precluding legislation of a Member State subjecting interest income received, from 1 July 2005, by taxpayers of that Member State who have opted for the voluntary disclosure procedure or otherwise declared that interest income to the tax authorities of their Member State of residence, in so far as it is not excluded from the retention under Article 1 no. 2, to a progressive tax rate of up to 40% where that interest income is derived from bonds and debt instruments paid by a Swiss paying agent, whereas, where the same interest income is paid by a resident paying agent, it is taxed at a lower definitive rate of 20%.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62022CJ0312
III.2. Constitutional Court
Judgement of the Constitutional Court no. 652/2023, of October 10, Case no. 12/2023:
“In these terms and on these grounds, it is decided:
a) to find unconstitutional the rule contained in articles 196 no. 2 and 235 no. 1 of the Code for the Execution of Sentences and Measures involving the Deprivation of Liberty, interpreted as meaning that the order rejecting the request for a judicial release on the grounds that the prisoner’s legal and criminal situation has not stabilised is irrevocable; and, consequently,
b) uphold the appeal, ordering that the contested decision be reformed in accordance with this judgement of unconstitutionality.”
https://www.tribunalconstitucional.pt/tc/acordaos/20230652.html
III.3. Judicial Courts
Judgement of the Supreme Court of Justice, of October 10, Case no. 9039/20.9T8SNT.L1.S1: Road Traffic Accident. Extra-contractual Liability. Compensation for Death. De facto Union. Right to Compensation. Right to Alimony. Property Damages. Future Damages. Advance Payment. Calculation of compensation. Non-Pecuniary Damages. Equitable judgement. Evidence. Conclusive facts. Free assessment of the evidence.
Summary:
“I. If it is proven that “In the first days of September 2015, certainly before 11 September 2015 (…)”, this does not constitute a value judgement that requires the elimination of the fact.
II. The compensation covered by Article 495 no. 3 of the Civil Code does not relate to the provision of maintenance, so the criteria for measuring the compensation covered by Article 495 no. 3 differs from those laid down for maintenance, so the rules of Articles 564 and 566 no. 3 of the Civil Code will be used to calculate the compensation, which legitimises recourse to equity (Article 4) and disengages from pure criteria of strict legality.
III. Since compensation for future property damage is paid in capital, the immediate receipt of the full amount of the compensation does not imply an automatic deduction from it.
IV. Non-pecuniary damage, arbitrated on the basis of equity, must be compensated with dignity.”.
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/54c4a803443257f480258a45003daf8b?OpenDocument
Judgement of the Supreme Court of Justice, of October 12, Case no. 571/22.0T8GRD.C1.S1: State Civil Liability. Jurisdictional Function. Extra-contractual liability. Right to compensation. Preventive Detention. Obligation to Remain in the Dwelling. Criminal acquittal.
Summary:
“I. The amendment to article 225 of the Code of Criminal Procedure, enacted by Law no. 48/2007, of 29 August 2007, extends its application to the custodial measure of obligation to remain at home, and makes it possible for the defendant to exercise his right to obtain from the State compensation adjusted to the damage suffered in the event of his acquittal of the offences charged (no. 1 and al) c).
II. Establishing in ordinary law the necessary balance between the constitutional protection of the right to individual liberty and, on the other hand, the right to security of life in society and the effectiveness of criminal justice, in compliance with the provisions of Article 27 no. 1 and 5 of the Constitution of the Portuguese Republic and enshrined in Article 5(5) of the ECHR.
III. The exclusion or compression of the right to compensation authorised by paragraph 2 are the situations typified in Article 225 no. 1 (b) and (c) of the CPP, i.e. in the event of “an intentional or culpable action/commission by the defendant” in the application of the measure of deprivation of liberty.
IV. Aside from that provision, following the rule of the prevalence of a specific rule over a general rule, it does not seem reconcilable to transpose the criterion “concurrence and measure of the injured party’s fault” referred to in Article 570 of the Civil Code, i.e. to “co-responsibilize” the injured party who did not appeal against the coercive measure.
V. Under the rule of law, the defendant’s right to react against the decision that decreed a measure restricting his liberty, by means of an ordinary appeal or by requesting the writ of habeas corpus, are instruments for protecting the fundamental right to liberty, with the aim of ensuring respect for and the limits of the legal restrictions that have been authorised.
VI. The OPHVE regime by definition implies a lower probability of harm than the imposition of restrictions on individual liberty in prison.
VII. The Plaintiff’s family ties were not compromised and he remained at the usual centre of his personal and professional life, thus mitigating the harmful effects of the coercive measure.
VIII. After weighing up the facts, guided by fairness, and the benchmark of the standard amounts awarded in this court in similar situations, the updated amount of €20,000.00 is adjusted, in order to compensate the Plaintiff for damages of a non-pecuniary nature, for having been deprived of his liberty, under an OPHVE regime for 276 days.”
Judgement of the Supreme Court of Justice, of October 12, Case no. 4006/20.5T8PRT.P1.S1: Authority of Res Judicata. Extension of Res Judicata. Subjective Identity. Third Party. Property. Property Rights. Land Registry. Opposability. Legal Business. Invalidity. Acquisition. Good faith.
Summary:
“I. The concept of third party for the purposes of res judicata should be interpreted in material terms, deriving “a contrario sensu” from the legal definition in Article 581/2 of the CPC: anyone who is not a party from the point of view of their legal capacity in the proceedings in which the judgement was handed down.
II. It is only conceivable to impose an obligation on the purchaser of the disputed item to return it to the claimant if there is a direct link to the judgement.
III. In cases where the buyer is not substituted for the seller, the judgment ordering the defendant to hand over the building is not binding on the buyer if the plaintiff only registered the action after the transfer in his favour had been registered.”.
Judgement of the Lisbon Court of Appeals, of October 10, Case no. 8341/19.7T8ALM-D.L1-7: Execution. Opposition. Preclusion. Cancellation of sale. Exceptional penalty charge. Condemnation.
Summary:
“I. Since the defendant lodged an opposition to the execution and attachment, and subsequently withdrew from the proceedings, which withdrawal was accepted by the opposing party and ratified by the Court, the possibility of invoking the grounds of opposition to the execution and attachment was ruled out.
II. For this reason, the defendant cannot invoke such grounds in an action for annulment of the sale of the seized asset, under the terms of Article 839(1)(c) of the CPC.
III. In the circumstances referred to in I. and II., and also considering that none of the grounds invoked in the motion to annul the sale truly fit the normative provision of art. 839, no. 1, c), it is justified to order the defendant to pay an exceptional penalty fee, since, in addition to being manifestly unfounded, the filing of the aforementioned motion, in those circumstances, reveals negligence – art. 531 of the CPC.”.
Judgement of the Lisbon Court of Appeals, of October 11, Case no. 2674/21.0T8VFX.L1-4: Professional Category. Principle of Equality. Equal Pay for Equal Work. Burden of Proof.
Summary:
“I – If the employee carries out several activities that fall into different professional categories, their classification must be made taking into account the essential core of the functions performed or the predominant activity and, if such diversity is indistinct, the employee must be classified in the highest category that comes closest to the functions actually carried out.
II – The fact that there are different levels of commitment, competence and confidence on the part of the hierarchy with regard to some of its employees compared to others (as would be the case with the Plaintiff), such differences will be valued in terms of evaluation or professional progression within the same professional category, and do not in themselves imply the inclusion of the employee in question in a different professional category.
III – For the purposes of applying the principle of equal pay for equal work, it is up to the worker to claim and prove that their work and that of the workers with whom they are compared is carried out under conditions of equal nature (difficulty, hardship and danger), quality (responsibility, technical demands, knowledge, ability, practice and experience) and quantity (duration and intensity).
IV – In the present case, it was up to the Plaintiff to prove that the duties she performed were the same as those performed by her colleagues (licensed technicians), with the contours indicated in terms of duration, quantity and quality. For this purpose, it is not enough to prove, as was the case, that she, on certain occasions, replaced her colleagues and that they replaced her, since the specific terms of the work performed by one and the other are unknown.”
Judgement of the Coimbra Court of Appeals, of October 10, Case no. 1469/21.5T8CTB-B.C2: Judgement on the Classification of Credits. Alteration of the Decision. Exhaustion of Jurisdictional Power. Transit of Judgement.
Summary:
“I – The judge is prohibited from cancelling an order previously handed down, even if he does so before the expiry of the period granted to the parties to appeal. The judge may not, on his or her own initiative, alter the judgement after it has been handed down, either in terms of the decision or in terms of the grounds that support it, with the exception of the rectifications provided for in article 614 no. 1 of the CPC, which are possible at any time when no appeal has been lodged.
II – Even if after the judgement has been handed down, either immediately or sometime later, he becomes convinced that he has made a mistake or it becomes clear to him that the decision did not comply with the legal framework in force, he can no longer amend it.
III – Consequently, once the judgement that verified and graded the claims has become final, the judge cannot amend the decision by invoking a nullity for failure to pronounce.“.
Judgement of the Coimbra Court of Appeals, of October 10, Case no. 1183/22.4T8CVL.C1: Insolvency Administrator. Tacit Declaration of Will. Closure of the Establishment. Willingness to Fail to Fulfil the Contract. Penalty Clause.
Summary:
“I – A negotiating declaration is tacit when it is deduced from facts which, in all probability, reveal it.
II – The tacit declaration consists of behaviour from which the expression or communication of something can be deduced in all probability. Such declarative behaviour may be contained or integrated by written or verbal communications or by any significant acts of a manifestation of will, whether or not they incorporate another express declaration.
III – The fact that it has been proven that the establishment was closed, unaccompanied by any other behaviour, is insufficient to conclude that the insolvency administrator does not intend to comply with the contract that bound the insolvent and the plaintiff.
IV – Penalty clauses with a compensatory function also include a sub-distinction, depending on the type of non-performance – compensatory clauses regulate the consequences of definitive non-performance and moratorium clauses are aimed at delaying performance.”
Judgement of the Évora Court of Appeals, of October 12, Case no. 1207/18.0T8MMN-K.E1: Purchase and Sale. Bonds. Shares. Commercial Registration.
Summary:
“I.- The purchase and sale of shares (despite the controversy that still arises) cannot be understood as a contract that produces all its effects by merely declaring the intention to sell and buy, but must be interpreted as a contract with an obligatory aspect (which operates quoad effectum) and a real aspect (which operates only after registration) – a coalition of contracts.
II.- This is because the transfer of ownership only becomes effective when the provisions of article 102 no. 1 of the CVM, Decree-Law no. 486/99, 13-11, have been complied with: “Securities with registered title are transferred by a declaration of transfer, written on the title, in favour of the transferee, followed by registration with the issuer or with a financial intermediary representing the issuer”.
III.4. Administrative and Tax Courts
Judgement of the Supreme Administrative Court, of October 11, Case no. 0343/12.0BEVIS: Exceptional Appeal. Scope. Insolvency. Insolvency Administrator. Declaratory Obligations.
Summary:
“I – The review appeal can only be based on the violation of substantive or procedural law (see article 285, no.2, of the C.P.P.T.), being restricted to the judgement of matters of law, thus excluding, in principle, errors of judgement regarding matters of fact (see article 285, nos. 3 and 4 of the C.P.P.T.). In other words, the S.T.A.’s scope of cognisance in relation to this appeal is limited solely to errors of law, which may result from the application of rules of substantive or procedural law.
II – The exceptional appeal procedure does not serve to assess issues of unconstitutionality, given the possibility of an appeal to the Constitutional Court, in the context of a concrete review of constitutionality, all in accordance with the uniform case law of this Court.
III – The company dissolved as a result of insolvency proceedings continues to exist as a CIT taxpayer until the date of the liquidation, and is subject, with the necessary adaptations and in all that is not incompatible with the insolvency proceedings regime, to the provisions of the CIT for the taxation of the taxable profits of companies in liquidation, while remaining bound by tax reporting obligations.
IV – If the insolvent legal person continues to carry out, even occasionally, transfers of goods or the provision of services corresponding to the exercise of an economic activity which, under the terms of article 2 of the C.I.V.A., imply its qualification as a taxable person for VAT, it must, during the tax periods in which this occurs, fulfil the obligations laid down in the same law. This is the case when the liquidation of the insolvent estate also involves acts that are relevant to VAT (e.g. regularisations that need to be made) or tax transactions that involve the provision of services (e.g. leasing of premises, assignment of contractual position, etc.). In short, if taxable transactions are carried out, or if there is an obligation to make regularisations in terms of VAT, or if the right to deduct tax is exercised, the insolvent company is subject to tax.
V – The fulfilment of declaratory obligations during the period between the declaration of insolvency and the decision to close down the insolvent company’s establishment may be a burden for the insolvency administrator, under the terms of article 65, no. 4 of the C.I.R.E.”.
Judgement of the Supreme Administrative Court, of October 11, Case no. 01126/18.0BEPRT: Judicial Review. CIT. Special Taxation Regime. Infringement of European Law. Freedom of Establishment. Infringement.
Summary:
“I – In view of the case law of the CJEU, it is clear that restrictions on group taxation under the unity tax regime arising from the fact that the controlling company is not resident in Portugal are not compatible with European Union law.
II – However, in this case, the refusal to apply the group taxation regime is not based on the fact that the controlling company has its registered office or effective management in a Member State other than the European Union, since the refusal to apply the RETGS was based on the fact that the new controlling company – Grupo B… SGPS – had recorded tax losses in the three periods prior to the start of application of the regime, which means that it does not fulfil the conditions to be considered the controlling company of the Tax Group, in violation of the provisions of subparagraph c) of paragraph 4 of article 4 of the Tax Code. c) of no. 4 of article 69 of the CIRC.
III – The dominant company referred to in the case does not involve a company with its registered office, central administration or main establishment in the Union, but rather a national company, which means that, as stated in the contested decision, the national legislator, in determining the requirements under which companies are allowed to opt for the RETGS and the integration into the group of other companies that the dominant company chooses to acquire and include in the group, terminating this same regime when these requirements are not met, is not creating any obstacle to any of these freedoms, nor to the functioning of the internal market, in so far as the aim of the national legislator was precisely to ensure the efficient functioning of the internal market by safeguarding equality between the different companies and business groups in terms of the possibility of benefiting from it and, on the other hand, to guard against the use of the tax advantage granted to groups of companies for the pursuit of other purposes to the frustration of those intended, thus preventing the regime from being used for exclusively fiscal purposes.
IV – The decision to set up a group of companies, as well as the option to apply the special regime for the taxation of groups of companies (if the access requirements are met) are decisions that are entirely at the disposal of the economic operators involved, and do not correspond to any state (or other) imposition, so both neutrality and the freedoms of initiative and business management and organisation are not affected.
V – The optional nature of the legal establishment of a regime of this type also means that it cannot be criticised in the light of the principle of taxation by actual profit, since the non-applicability of the RETGS results in companies being subject to the common CIT regime, in addition to the general and abstract nature of the RETGS rules – their universality, once the conditions for their applicability have been met – ensures that this regime, by allowing differentiated tax treatment of certain business realities which in turn also stand out materially from the generality of companies, shows that there is no violation of the principle of equality”.
Judgement of the Southern Central Administrative Court, of October 4, Case no. 508/22.7 BELLE: Complaint against an Act of the Tax Enforcement Body. Interest in Acting.
Summary:
“I – The interest in acting, “is based on the need for judicial protection, arising “from the need to obtain from the process the protection of the substantial interest, and therefore it assumes the injury of such interest and the suitability of the requested measure for its reintegration or, as far as possible, full satisfaction”. Hence, “this assumption is not intended to ensure the effectiveness of the judgement; what is at stake is rather its usefulness; if the interest were not required, the jurisdictional activity would be exercised in vain”.
II – As the action is configured, the Claimant’s need to use the process, to initiate it and to have it continue is perfectly understandable. In fact, and regardless of the merits of the Claimant’s claim, we can see the need and appropriateness of the Court’s intervention, first and foremost to assess the legality of the attachment that has been contested, and it is the recognition of its illegality that the Claimant wishes the Court to declare”.
IV. BRIEFS
IV.1. DOCTRINE
IV.1.1. Monographs and Periodicals
Jorge Brito Pereira, Contratos Bancários, Almedina, October 2023.
Leonardo Marques dos Santos, Manual de IRC das Entidades Não Lucrativas, Almedina, October 2023.
Carlos Batista Lobo e Clotilde Celorico Palma, Nós e os Impostos II – Um Contributo para o Futuro dos Impostos, Almedina, October 2023.
Jorge Bacelar Gouveia, Direito Internacional Penal, Almedina, October 2023.
Nuno Salpico, Cálculo de Danos e Equidade – Aplicação, Alcance e Limites do Artigo 566.º, n.º 3 do Código Civil, Almedina, October 2023.
Marco Carvalho Gonçalves, Processo de Insolvência e Processos Pré-Insolvenciais, Almedina, October 2023.
Joana Campo Carvalho, Os Contratos Celebrados Através de Plataformas Digitais, Almedina, October 2023.
Pedro Romano Martinez, Direito do Trabalho, Almedina, October 2023.
Edgar Valles, Contencioso Administrativo, Almedina, October 2023.
Teresa Coelho Moreira, Direito do Trabalho na Era Digital 2ª Edição, Almedina, October 2023.
Jorge Faria Lopes, Contratação Pública e Eficiência, Almedina, October 2023.
Tiago Viana Barra, A Caducidade no Direito Administrativo, Almedina, October 2023.
Artur Flamínio da Silva, Direito Administrativo e Tecnologia 3ª Edição, Almedina, October 2023.
IV.1.2. Generic Guidelines & Cia
Circular Letter no. 20261/2023, of October 16, by order of the Deputy Director-General of IR and International Relations
Subject: Article 43-D EBF – Fiscal Regime of Incentive to the Capitalization of Corporations (ICE).
Circular Letter no. 25002/2023, of October 16, by order of the Deputy Director-General of the TAX Management area – VAT
Subject: VAT – Transfer of goods for placing on board vessels.
Circular Letter no. 25003/2023, of October 30, by order of the Deputy Director-General of the Tax Management area – VAT
Subject: VAT – Sections 2.18 and 2.23 of List I annexed to the VAT Code.
IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation
On October 7, the Council of Ministers approved, in an extraordinary meeting, the law proposal for the State Budget for 2024, which was presented in the Assembly of the Republic on October 10.
https://www.portugal.gov.pt/pt/gc23/governo/comunicado-de-conselho-de-ministros?i=579
On 19 October, the Council of Ministers approved a decree-law to reform and simplify licensing in the fields of urban planning, spatial planning and industry. The simplification of urban planning and spatial planning licences is intended not only to help simplify procedures for corporations, but also to promote growth, investment and employment.
In addition, the following legislation was approved:
- A decree-law establishing an exceptional measure to encourage long-term unemployed people to return to work and extending unemployment benefit to victims of domestic violence;
- A draft law, to be submitted to Parliament, which establishes the penal regime applicable to offences against the physical integrity of agents of the security forces and services;
- A resolution defining the ecological criteria applicable to public procurement procedures promoted by direct and indirect state administration entities, including the state business sector, and establishing the general principles on ecological matters applicable across the board to public procurement;
https://www.portugal.gov.pt/pt/gc23/governo/comunicado-de-conselho-de-ministros?i=582
On 26 October, the Council of Ministers approved a decree-law that introduces changes to the extraordinary aid for families to pay their rent, clarifying the concept of income that allows access to the aid and reinforcing citizens’ guarantees by creating mechanisms for complaints, clarification and validation with the authorities.
Furthermore, it was also approved the draft law, to be submitted to the Portuguese Parliament, which amends the legal frameworks for the Citizen’s Card, the Digital Mobile Key and Electoral Registration.
https://www.portugal.gov.pt/pt/gc23/governo/comunicado-de-conselho-de-ministros?i=583
IV.2.2. Industrial Property
On 9 October, the European Council adopted the regulation on the protection of geographical indications (GI) for craft and industrial products at European Union (EU) level, complementing the current EU protection for GIs in the agricultural field. Once the regulation comes into force, GIs for industrial products linked to the geographical area of production (such as Madeira embroidery, Minho Valentine’s handkerchiefs, Barcelos pottery or Arraiolos carpets) will be able to benefit from protection similar to that which already exists for wines, spirits, foodstuffs and other agricultural products at EU level.
On October 12, the provisional statistical data regarding the applications and grants of Industrial Property Rights (IPR), for the month of September 2023, were made available. From this statistical data, we can highlight the following:
I. In the first nine months of the year, 628 applications were submitted (less than the 659 applications submitted in the same period of 2022). Regarding the national invention grants, 144 national inventions were granted, compared to 169 granted in the same period of 2022, which represents a decrease of 14.8%.
II. The number of European Patent validations, submitted in Portugal in the first nine months of the year, decreased when compared to the same period in the previous year, decreasing from 2.930 validations filled to 2.163 in 2023.
III. National Trademarks and Other Distinctive Trade Signs (ODS) registered 16.052 applications from January to September 2023 (higher than the 15.328 applications submitted in the same period of 2022), representing an increase of 4.7%. In the same period, 12.412 National Trademarks and ODS were granted (12.478 in 2022).
IV. The number of objects included in national Design applications decreased, going from 858 objects in January-September 2022 to 672 in the same period of 2023, representing a decrease of 21.7%.
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/en-gb/INPI-News/Industrial-Property-Rights-January-to-September-2023
Refer to