I. EDITORIAL – COVID-19: RENEWAL OF THE STATE OF EMERGENCY
The month of April was defined, at the legislative level, by the renewal of the State of Emergency, first on April 2, through Decree of the President of the Republic no. 17-A/2020 and then on April 17, through Decree of the President of the Republic no. 20-A/2020, both based on the subsistence of the assumptions alleged at the time of the declaration of the state of emergency, and which remained in its renewal, with a strategy to combat the spread of the virus through the general gathering of the population and the practice of social distancing. And on April 30, by the Resolution of the Council of Ministers no. 33-A/2020, declaring the situation of calamity, within the scope of the COVID-19 disease pandemic.
In the context of case law, it is worth noting the judgment of the Court of Justice of 2 April, Case C-567/18, which defined, with regard to the European Union trademark, the interpretation to be given to Article 9(2)(b) of Council Regulation (EC) No 207/2009 and Article 9(3)(b) of Regulation No 2017/1001 of the European Parliament and of the Council. And, pursuant to that provision, it is clarified that a person who stores on behalf of a third party products which infringe a trade mark right, without being aware of the infringement, shall not be deemed to store such products in order to offer them or place them on the market within the meaning of those provisions, where that person does not himself pursue those purposes.
On the other hand it should be noted the Judgement of the Lisbon Court of Appeal of 21 April, Case No. 129/15.0YHLSB.L1-PICRS, which decided on the existence of the possibility of confusion/association between the products/services of two trademarks that are part of the same relevant market, there being a substitution relationship, although the services of both are not included in the same Nice class, and there is a graphic, figurative and phonetic similarity of the predominant verbal element that is common to the trademarks.
Finally, in the context of Miscellaneous, we would like to highlight the approval by the Council of Ministers of a draft law establishing fiscal measures and extending the limit for granting guarantees in the context of the Covid-19 pandemic, and of the strategy for removing containment measures in the context of combating the Covid-19 pandemic.
Ordinance no. 83/2020, of April 1: Proceeds to the fourth amendment of Ordinance no. 59/2013, of February 11, to the third amendment of Ordinance no. 97/2015, of March 30, and to the fifth amendment of Ordinance no. 27/2014, of February 4, anticipating the extension periods for the extinction of the transitory tariffs applicable to electricity supplies in Medium Voltage (MT) and Special Low Voltage (BTE), to 2021 and 2022, respectively, and to natural gas supplies in Low Pressure (BP), to 2022.
Decree-Law no. 11/2020, of April 2: Proceeds to the ninth amendment to Decree-Law no. 296-A/98, of September 25th, to the second amendment to Decree-Law no. 393-A/99, of October 2nd, and to the second amendment to Decree-Law no. 113/2014, of July 16th, creating the special entrance contests to higher education for holders of the double certification courses of high school education and specialized artistic courses.
Regional Regulatory Decree no. 8/2020/A, of April 2: Amends Article 1 of Regional Regulatory Decree No 16/2011/A of 28 June, which provides for the payment of moderating fees for access to health services within the Regional Health Service of the Azores.
Decree of the President of the Republic no. 17-A/2020, of April 2: Renews the declaration of a state of emergency, lasting 15 days, throughout the national territory, on the basis of a public calamity situation caused by COVID-19 disease.
Parliamentary Resolution no. 22-A/2020, of April 2: Grants authorization for the renewal of the state of emergency, requested by His Excellency the President of the Republic, in the message sent to the Assembly of the Republic on April 1, 2020, in the exact terms and with the grounds and content contained in the draft of the Decree of the President of the Republic.
Decree no. 2-B/2020, of April 2: Proceeds to the execution and regulation of the declaration of the state of emergency made by the Decree of the President of the Republic no. 14-A/2020, of March 18, and renewed by the Decree of the President of the Republic no. 17-A/2020, of April 2.
Ordinance no. 85/2020, of April 3: Proceeds with the first amendment to Ordinance no. 390/2019, of 29 October, which proceeded with the fourth amendment to Ordinance no. 224/2015, of 27 July, which, in turn, establishes the legal regime to which the rules of prescription and dispensation of medicines and health products obey and defines the information obligations to be provided to users.
Ordinance no. 85-A/2020, of April 3: Defines and regulates the terms and conditions for granting extraordinary, temporary and transitory support for the social and solidarity sector, due to the epidemiological situation of the new coronavirus – COVID 19, with a view to supporting private social solidarity institutions, social solidarity cooperatives, non-governmental organizations of people with disabilities and similar in the operation of social responses.
Ordinance no. 86/2020, of April 4: Establishes a set of exceptional and temporary measures related to the epidemiological situation of the COVID-19 disease, within the scope of operation 10.2.1.4, “Short chains and local markets”, of action 10.2, “Implementation of strategies”, integrated in measure 10, “LEADER”, of area 4, “Local development”, of the Rural Development Programme for the mainland, abbreviated as PDR 2020.
Order no. 4148/2020, of April 5: Regulates the exercise of wholesale and retail trade of food distribution and determines the suspension of trade activities of bicycles, motor vehicles and motorcycles, tractors and agricultural machinery, ships and boats.
Decree-Law no. 12/2020, of April 6: Establishes the legal framework for greenhouse gas (GHG) emissions and allowance trading, transposing into national law the Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003, as consequently amended.
Ordinance no. 88-A/2020, of April 6: Approves the instructions for completing the Monthly Statement of Remuneration (DMR), approved by Ordinance No. 40/2018, of 31 January, attached to this ordinance.
Ordinance no. 88-B/2020, of April 6: Determines a weekly suspension period for the activity of the fleet operating in inland non-sea waters under the jurisdiction of masters of ports on the mainland and in Division 9 as defined by the International Council for the Exploration of the Sea (ICES).
Ordinance no. 88-C/2020, of April 6: Increases, for the year 2020, the social security financial contribution, hereinafter referred to as financial contribution, within the scope of the application of the cooperation legal regime provided for in Ordinance no. 196-A/2015, of 1 July, as currently written.
Law no. 4-A/2020, of April 6: Proceeds with the first amendment to Law no. 1-A/2020, of March 19, which approves exceptional and temporary measures in response to the epidemiological situation caused by the SARS-CoV-2 coronavirus and the COVID-19 disease, and also with the second amendment to Decree-Law no. 10-A/2020, of March 13, which establishes exceptional and temporary measures regarding the epidemiological situation of the new Coronavirus – COVID 19.
Law no. 4-B/2020, of April 6: Approves an exceptional regime of compliance with the measures foreseen in the Municipal Adjustment Programs (PAM) and of indebtedness when it comes to expenses with social support, acquisition of health equipment and other measures to combat the effects of the COVID-19 pandemic and proceeds with the second amendment to Law no. 1-A/2020, of March 19.
Law no. 4-C/2020, of April 6: Establishes an exceptional regime for situations of default in the payment of rent due under the terms of residential and non-residential urban lease agreements, given the epidemiological situation caused by COVID-19 disease.
Decree-Law no. 12-A/2020, of April 6: Proceeds with the third amendment to Decree – Law no. 10-A/2020, of March 13, amended by Decree-Law no. 10-E/2020, of March 24, and Law no. 4-A/2020, of April 6, which establishes exceptional and temporary measures relating to the pandemic of the disease COVID-19.
Ordinance no. 88-D/2020, of April 6: Establishes a set of exceptional and temporary measures concerning the epidemiological situation of the new Coronavirus – COVID-19, within the scope of action 8.1, “Sustainable Forestry” of Measure 8 “Protection and Rehabilitation of Forest Reservoirs” of the Rural Development Programme of the Continent, abbreviated to PDR 2020, in derogation from the provisions of the specific regulations.
Ordinance no. 88-E/2020, of April 6: Establishes exceptional and temporary measures in the scope of the COVID-19 pandemic, applicable to operational programs in the fruit and vegetable sector and respective financial assistance, regulated, at national level, by Ordinance No. 295-A/2018, of November 2, amended by Ordinance No. 306/2019, of September 12, or Ordinance No. 1325/2008, of November 18, amended by Ordinances No. 1247/2009, of October 13, and 166/2012, of May 22.
Decree-Law no. 13/2020, of April 7: Proceeds with the third amendment to Decree-Law no. 372/2007, of November 6, amended by Decree-Laws no. 143/2009, of June 16, and 81/2017, of June 30, which creates the electronic certification of the status of micro, small and medium enterprises.
Decree-Law no. 14/2020, of April 7: It gives an authentic interpretation of the remuneration scheme applicable to military personnel in the Armed Forces in order to clarify the formula for calculating the remuneration of military personnel in the reserve situation.
Ordinance no. 89/2020, of April 7: Adopts exceptional measures, arising from the COVID-19 epidemic, concerning the formalities applicable to the production, storage and marketing, duty-free, of alcohol intended for the purposes provided for in Article 67(3) of the Excise Code (CIEC).
Decree-Law no. 14-A/2020, of April 7: Changes the deadline for implementation of electronic invoicing in public contracts, proceeding with the second amendment to Decree-Law no. 111-B/2017, of August 31, and the first amendment to Decree-Law no. 123/2018, of December 28.
Decree-Law no. 14-B/2020, of April 7: Proceeds with the partial deferral of the execution of the debt settlement agreements entered into under Decree-Law no. 5/2019, of 14 January, as well as with the extension of the period for the assignment of credits by the management entities of multimunicipal systems or other state-owned systems for water supply and wastewater sanitation and by the management entities of partnerships between the State and the local authorities, under the terms of Decree-Law no. 90/2009, of 9 April.
Decree-Law no. 14-C/2020, of April 7: Establishes procedures for the allocation of funding and compensation to key transport operators in the framework of the COVID-19 pandemic.
Regional Legislative Decree no. 10/2020/A, of April 8: Proceeds with the first amendment to the Annual Regional Plan for 2020, approved by Regional Legislative Decree no. 2/2020/A, of 22 January.
Ordinance no. 90/2020, of April 9: Proceeds with the first amendment to Ordinance no. 80-A/2020, of 25 March, which established the regime for the provision of essential services for the inspection of vehicles.
Regional Regulatory Decree no. 9/2020/A, of April 9: Regulates the Regional Legislative Decree n.º 11/2019/A, of May 24th, which approves the legal regime of financial support to rehabilitation, repair and improvement works of buildings or fractions, for permanent own habitation or for lease, designated as Renewed House, Inhabited House Programme («Programa Casa Renovada, Casa Habitada»).
Ordinance no. 90-A/2020, of April 9: Creates an exceptional and temporary regime concerning the electronic prescription of medicines and the respective medical prescription, during the validity of the state of emergency in Portugal, motivated by the COVID-19 pandemic.
Law no. 5/2020, of April 10: Proceeds with the fourth amendment, by parliamentary consideration, to Decree-Law No. 10-A/2020, of March 13, which establishes exceptional and temporary measures regarding the epidemiological situation of the new Coronavirus – COVID 19, amended by Decree-Law No. 10-E/2020, of March 24, Law No. 4-A/2020, of April 6, and Decree-Law No. 12-A/2020, of April 6.
Law no. 6/2020, of April 10: Establishes an exceptional scheme to promote the response capacity of local authorities in the context of the COVID-19 pandemic.
Law no. 7/2020, of April 10: Establishes exceptional and temporary regimes of response to the SARS-CoV-2 epidemic, on the following subjects: a) Definition of the rules applicable to the teaching activity of higher education institutions; b) Definition of limitations of access to online gambling platforms; c) Non-interruption of essential services; d) Suspension, under certain circumstances, of the collection of commissions in payment operations through payment service providers digital platforms; e) Equivalence of nannies registered with the social security system with kindergartens, for the purposes of applying Articles 23 and 24 of Decree-Law No. 10-A/2020 f) Admissibility, under certain conditions, of redemption of Retirement Savings Plans; g) Safeguarding the gratuity of the SNS 24 Line; h) Extending the obligations of the concessionaire of the public television service, proceeding with the fourth amendment to the Law on Television and Audio-visual Services on Demand, approved by Law no. 10-A/2020, of 13 March 27/2007, of July 30; i) Rescheduling of cultural shows, proceeding with the first amendment to Decree-Law no. 10 -I/2020, of March 26, which establishes exceptional and temporary measures in response to the pandemic of the disease COVID -19 in the cultural and artistic field, especially as regards the shows not performed.
Law no. 8/2020, of April 10: Proceeds to the first amendment, by parliamentary appreciation, to Decree -Law no. 10-J/2020, of March 26, which establishes exceptional measures for the protection of credits of families, companies, private social solidarity institutions and other entities of the social economy, as well as a special regime of personal guarantees of the State, in the scope of the pandemic of the disease COVID-19.
Law no. 9/2020, of April 10: Establishes, exceptionally, in the context of the public health emergency caused by the COVID-19 disease, the following measures: a) A partial pardon of prison sentences; b) A special pardon of sentences; c) An extraordinary regime of administrative leave for convicted prisoners; d) An extraordinary anticipation of the placing on probation.
Decree-Law no. 14-D/2020, of April 13: Proceeds with the fourth amendment to Decree-Law no. 89/2009, of April 9, amended by Decree-Law no. 133/2012, of June 27, and Laws no. 120/2015, of September 1, and 90/2019, of September 4, which regulates the protection in parenthood, in the event of maternity, paternity and adoption, of workers who perform public functions integrated in the convergent social protection system.
Decree-Law no. 14-E/2020, of April 13: Establishes an exceptional and transitional regime for the manufacture, import, placing and availability on the domestic market of medical devices (MD) and personal protective equipment (PPE), for the purpose of preventing the contagion of the new coronavirus (SARS -CoV -2).
Decree-Law no. 14-F/2020, of April 13: Proceeds with the fifth amendment to Decree-Law no. 10-A/2020, of March 13, amended by Decree-Law no. 10-E/2020, of March 24, by Law no. 4-A/2020, of April 6, by Decree-Law no. 12-A/2020, of April 6, and by Law no. 5/2020, of April 10, which establishes exceptional and temporary measures related to the COVID-19 pandemic, and also the first amendment to Decree-Law no. 10-G/2020, of March 26, which establishes an exceptional and temporary measure for the protection of jobs, within the scope of the COVID -19 pandemic.
Decree-Law no. 14-G/2020, of April 13: Establishes exceptional and temporary measures in response to the COVID-19 disease pandemic within the framework of basic and high school education, for the 2019/2020 school year, with regard to the following subjects: a) Performance, evaluation and certification of apprenticeships; b) School timetable and tests and examinations for basic and high school education; c) Application process in basic and high school education; d) Registration process for national tests and final examinations; e) Teaching and non-teaching staff.
Council of Ministers Resolution no. 22/2020, of April 14: Extends the exceptional and temporary restoration of border control of persons in the context of the COVID-19 pandemic.
Ordinance no. 91/2020, of April 14: Defines, in execution of the provisions of paragraph 2 of Article 3 of Law No. 4 -C/2020, of April 6, which establishes an exceptional regime for situations of default in the payment of rents in view of the epidemiological situation caused by the coronavirus SARS-CoV-2 and COVID-19 disease, the terms under which the demonstration of the loss of income is made for the purpose of applying that exceptional regime to situations of inability to pay housing rents due from April 1, 2020 and until the month following the end of the state of emergency.
Decree-Law no. 15/2020, of April 15: Creates a line of credit with subsidized interest directed at operators in the fishing sector, aimed at providing financial means for the acquisition of production factors, for working capital or treasury, namely for the settlement of taxes, payment of salaries and renegotiation of debts with suppliers, credit institutions or other entities authorized by law to grant credit, under the terms of the temporary framework for State aid measures in support of the economy in the current context of the COVID-19 outbreak.
Decree-Law no. 16/2020, of April 15: Establishes exceptional and temporary measures in response to the COVID-19 disease pandemic, aimed at allowing the practice of acts by means of distance communication within the scope of: a) Urgent proceedings under the terms of courts of peace; b) Procedures and registration acts; c) Procedures conducted by the National Institute of Industrial Property, I. P. (INPI, I. P.).
Ordinance no. 92/2020, of April 15: Establishes the values of the fees to be charged to operators subject to registration on the electronic platform referred to in Article 30(1) of Decree-Law No. 145/2017 of 30 November.
Ordinance no. 94-A/2020, of April 16: Regulates the procedures for granting exceptional support for the family, extraordinary support for reducing the economic activity of the self-employed and maintaining an employment contract in a situation of business crisis, deferment of contributions of self-employed workers and recognition of the right to extend benefits of the social security system.
Decree of the President of the Republic no. 20-A/2020, of April 17: Renews the declaration of a state of emergency for a second time on the basis of a public calamity.
Decree no. 2-C/2020, of April 17: Regulates the extension of the state of emergency decreed by the President of the Republic.
Law no. 9-A/2020, of April 17: Establishes an exceptional and temporary budgetary procedure, considering the economic and financial situation resulting from the epidemiological situation caused by the SARS-CoV-2 coronavirus and the OVID-19 disease.
Law no. 10/2020, of April 18: Establishes an exceptional and temporary regime with regard to the formalities for service of documents under the procedural and procedural laws and for parcel post services, considering the epidemiological situation caused by the SARS-CoV-2 coronavirus and the COVID-19 disease.
Ordinance no. 95/2020, of April 18: Creates the Incentive System for Productive Innovation («Sistema de Incentivos à Inovação Produtiva») in the context of COVID-19, whose Regulation is included in the Annex to this Ordinance.
Ordinance no. 96/2020, of April 18: Creates the Incentive System for Research and Development Activities and Investment in Test and Optimization Infrastructures (upscaling) («Sistema de Incentivos a Atividades de Investigação e Desenvolvimento e ao Investimento em Infraestruturas de Ensaio e Otimização»), in the context of COVID-19.
Ordinance no. 98/2020, of April 20: Amends Ordinance no. 320-A/2011, of December 30, amended and republished by Ordinance no. 155/2018, of May 29, which establishes the nuclear structure of the Tax and Customs Authority (AT) and the powers of the respective organic units and sets the maximum limit of flexible organic units.
Ordinance no. 100/2020, of April 22: Proceeds with the first amendment to Ordinance no. 341/2019, of 1 October, which regulates the models to be followed by pleadings in the context of mass proceedings, as provided for in Article 99(3) of the Code of Procedure in Administrative Courts, as well as the forms of pleadings capable of determining the reduction of the judicial fee applicable to administrative proceedings, as provided for in Article 6(9) of the Regulation of Procedural Costs, and the fourth amendment to Ordinance no. 380/2017, of 19 December, which regulates the electronic processing of proceedings in the Administrative Courts, Tax Courts, Central Administrative Courts and the Supreme Administrative Court.
Declaration of Rectification no. 17/2020, of April 23: Declaration of Rectification to Law No. 10/2020 of April 18, “Exceptional and temporary regime regarding the formalities of service and postal notification, in the context of the pandemic of the disease COVID-19”.
Decree-Law no. 17/2020, of April 23: Establishes exceptional and temporary measures for the tourism sector in the context of the COVID-19 pandemic.
Decree-Law no. 18/2020, of April 23: Proceeds with the sixth amendment to Decree-Law no. 10-A/2020, of March 13, ratified by Law no. 1-A/2020, of March 19, and amended by Decree-Law no. 10-E/2020, of March 24, by Law no. 4-A/2020, of April 6, by Decree-Law no. 4-A/2020, of April 6. No. 12-A/2020, of April 6, by Law No. 5/2020, of April 10, and by Decree-Law No. 14-F/2020, of April 13, which establishes exceptional and temporary measures regarding the epidemiological situation of the new coronavirus – COVID-19.
Ordinance no. 101/2020, of April 23: Proceeds with the first amendment to Ordinance no. 357/2019, of 8 October, which regulates electronic communications between courts and schools in the public network under the Ministry of Education.
Decree-Law no. 18-A/2020, of April 23: Establishes exceptional and temporary measures in response to the COVID-19 disease pandemic, in the area of sports, regarding several matters.
Regional Regulatory Decree no. 10/2020/A, of April 24: Determines the termination of regional regulatory decrees published between 1997 and 2018.
Ordinance no. 102-A/2020, of April 24: Establishes an exceptional period, between May 1st and June 30th, 2020, during which the commercialization of gasoline with winter specifications, still existing in the national territory, can be commercialized for the purpose of its disposal.
Ordinance no. 104/2020, of April 29: Defines the requirements for aircraft operators carrying out specialised application operations of plant protection products in the context of agricultural and forestry work and for pilots operating aircraft involved in the application of such products.
Declaration of Rectification no. 18/2020, of April 30: Amends Law No. 7/2020 of April 10, which “Establishes exceptional and temporary regimes of response to the SARS-CoV-2 epidemic, and proceeds with the first amendment to Decree-Law No. 10-I/2020 of March 26 and the fourth amendment to Law No. 27/2007 of July 30».
Decree-Law no. 19/2020, of April 30: Establishes a temporary and exceptional support scheme for the humanitarian firefighters’ associations (AHB) in the framework of the COVID-19 pandemic.
Ordinance no. 105/2020, of April 30: Proceeds with the extension, until December 31, 2020, of the period of validity foreseen in article 5 of Ordinance no. 89/2020, of April 7, which adopts exceptional measures, arising from the COVID-19 epidemic, regarding the formalities applicable to the production, storage and commercialization, with exemption from the tax, of alcohol intended for the purposes foreseen in no. 3 of article 67 of the Excise Tax Code (CIEC).
Decree-Law no. 19-A/2020, of April 30: Establishes the exceptional and temporary regime applicable, in the context of the COVID-19 pandemic: a) To contracts of long-term execution to which the State or other public entity is a party; b) To compensation for the sacrifice for an act committed by the State or other public entity in the context of preventing and fighting the pandemic.
Decree no. 2-D/2020, of April 30: Establishes the limitation to circulation between 1 and 3 May 2020 under the state of emergency and the calamity situation.
Resolution of the Council of Ministers no. 33-A / 2020, of 30 April: Declares the situation of calamity, in the context of the pandemic of the disease COVID-19.
Resolution of the Council of Ministers no. 33-B/2020, of April 30: Reestablishes, on an exceptional and temporary basis, an authorized crossing point at the land border.
Resolution of the Council of Ministers no. 33-C/2020, of April 30: Establishes a strategy for lifting containment measures in the fight against the COVID-19 pandemic.
III.1. Court of Justice of the European Union
Judgement of the Justice Court of April 2, Case C-500/18: Reference for a preliminary ruling. Freedom of establishment. Freedom to provide services. Markets in financial instruments. Directive 2004/39/EC. Meanings of ‘retail client’ and ‘consumer’. Conditions for relying on the status of consumer. Determining jurisdiction to hear the request.
“Article 17(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 a natural person who, under a contract such as a financial contract for differences concluded with a finance company, carries out transactions through that company may be classified as a ‘consumer’ within the meaning of that provision if the conclusion of that contract does not fall within the scope of that person’s professional activity, which it is for the national court to ascertain. For the purposes of that classification, first, factors such as the fact that that person carried out a high volume of transactions within a relatively short period or that he or she invested significant sums in those transactions are, as such, in principle irrelevant, and secondly, the fact that that same person is a ‘retail client’ within the meaning of Article 4(1) point 12 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC is, as such, in principle irrelevant.
Regulation No 1215/2012 must be interpreted as meaning that, for the purposes of determining the courts having jurisdiction, an action in tort brought by a consumer comes under Chapter II, Section 4, of that regulation if it is indissociably linked to a contract actually concluded between that consumer and the seller or supplier, which is a matter for the national court to verify.”.
Judgement of the Justice Court of April 2, Case C-567/18: Reference for a preliminary ruling. EU trade mark. Regulation (EC) No 207/2009. Article 9. Regulation (EU) 2017/1001. Article 9. Rights conferred by a trade mark. Use. Stocking of goods for the purposes of offering them or putting them on the market. Storage with a view to dispatching goods sold in an online marketplace which infringe trade mark rights.
“Article 9(2)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the [European Union] trade mark and Article 9(3)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark must be interpreted as meaning that a person who, on behalf of a third party, stores goods which infringe trade mark rights, without being aware of that infringement, must be regarded as not stocking those goods in order to offer them or put them on the market for the purposes of those provisions, if that person does not itself pursue those aims.”.
Judgement of the Justice Court of April 23, Case C-640/18: Reference for a preliminary ruling. Directive 78/660/EEC. Annual accounts of certain types of companies. Principle of a true and fair view. Acquisition of a fixed asset by a public limited company. Entry as a charge in the profit and loss account of a discount relating to a debt of more than one year which does not bear interest and entry of the purchase price of the fixed asset on the assets side of the balance sheet after deduction of the discount.
“In the case of a transaction involving the acquisition by a public limited company of a financial fixed asset for which payment of the price is provided for on a long-term, interest-free basis under conditions similar to those for a loan, the principle of true and fair view set out in Article 2(3) of Council Directive 78/660/EEC of 25 July 1978 based on Article [44(2)(g) EC] on the annual accounts of certain types of companies must be interpreted as not precluding the use of a method of accounting which provides for the inclusion as a charge in the profit and loss account of a discount at the market rate, linked to debt of more than one year which does not bear interest, relating to that acquisition and the entry of the purchase price of that asset on the assets side of the balance sheet, after deduction of that discount.”.
Judgement of the Justice Court of April 23, Case C‑28/19: Reference for a preliminary ruling. Transport. Air services. Regulation (EC) No 1008/2008. Article 23(1). Indication of the final price to be paid. Online passenger check-in fees. VAT. Administrative fees for purchases made by means of a credit card other than that approved by the air carrier. Unavoidable and foreseeable elements of the final price to be paid. Optional price supplements. Concept.
“Article 23(1) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community must be interpreted as meaning that passengers’ check-in fees whose payment cannot be avoided because there is no alternative method of checking-in free of charge, the value added tax (VAT) applied to fares for domestic flights, and administrative fees for purchases made by means of a credit card other than that approved by the air carrier constitute price elements that are unavoidable and foreseeable within the meaning of the second sentence of that provision. By contrast, that provision must be interpreted as meaning that passengers’ check-in fees whose payment can be avoided by using a free check-in option and the VAT applied to optional supplements relating to domestic flights constitute an optional price supplement within the meaning of the fourth sentence of that provision.”.
III.2 Constitutional Court
III.3. Courts of Justice
Judgement of the Évora Court of Appeal of April 2, Case no. 1203/18.7T8OLH-E.E1: Exoneration of remaining liabilities. Term. Legal assistance by an assigned attorney.
Judgement of the Lisbon Court of Appeal of April 14, Case no. 49/19.0YHLSB.L1-PICRS: Trademarks. Risk of confusion.
Judgement of the Lisbon Court of Appeal of April 14, Case no. 121/19.6YHLSB.L1-PICRS: Trademarks. Distinctive trademark function.
Judgement of the Lisbon Court of Appeal of April 21, Case no. 129/15.0YHLSB.L1-PICRS: Trademarks. Risk of confusion.
III.4. Administrative and Tax Court
Judgement of the Supreme Administrative Court of April 2, Case no. 0814/19.8BEBRG: Legal notice. Electronic communication networks. Personal legal notice. Electronic mailbox.
Judgement of the Central Administrative South Court of April 16, Case no. 908/18.7BELRA: State civil liability. Delay in the administration of justice. Compensation.
Acórdão do Supremo Tribunal Administrativo de 20 de abril, Processo n.º 0246/18.5BEFUN: Opposition to tax execution. Enforcement order. Legality of enforceable debt.
IV.1.1. Monographs and Periodic Publications
David Sequeira Dinis, Luís Bértolo Rosa, As Medidas Cautelares no Processo de Insolvência, Almedina, abril 2020.
Ana Fazendeiro, Nova Lei de Proteção de Dados Pessoais, Almedina, abril 2020.
Fernando Neto Ferreirinha, Inventário Notarial – Reflexões Sobre o Novo Regime Jurídico, Aprovado pela Lei Nº 117/2019, de 13 de Setembro, Almedina, abril 2020.
IV.1.2. Generic Guidelines & Cia
Circulate letter no. 30219, of 02.04.2020, of Deputy General Director of VAT Management Area
Subject: VAT. State Budget for the year of 2020. Amendments to the Vat Code and its complementary legislation.
Circulate letter no. 40118, of 03.04.2020, of Deputy General Director of Property Tax Area
Subject: Real state transfers tax (“IMT”). Tables taking effect form April 1 of 2020.
Circulate letter no. 6/2020, of 07.04.2020, of General Director of Tax and Customs Authority
Subject: Decree-Law no. 10-J/2020, of March 26. Stamp duty extension and withdrawal at the credits exceptional moratorium protection.
Blinding information no. 17077, of 08.04.2020, of Director of VAT Services
Subject: Taxable person reversal – Eucalyptus harvesting supply (standing trees) by the non-taxable person (private parties), while the felling and cutting operations are made by the taxable person to whom those goods are supplied.
Circulate letter no. 15759/2020, of 08.04.2020, of Deputy General Director of Customs Management Area
Subject: Proof of origin. Agreement between EU – Overseas Countries and Territories (OCT).
Circulate letter no. 15760, of 15.04.2020, of Deputy General Director of Customs Regulation Area
Subject: Covid – 19. Admission of free of import duties and VAT exemption.
Order no. 153/2020 – XXII, of 24.04.2020, of Secretary of State Tax Affairs
IV.2.1. Economy, Finance and Taxation
On April 23, the Council of Ministers has approved several law proposals with extraordinary measures to tackle the COVID-19 epidemiological situation, amongst which the following should be highlighted:
- Expands to the national and Community operators the VAT exemption for the supply to the hospitals as well as to the profit-oriented organisations, of several healthcare equipment, including the individual protection equipment.
- Appoints the application of 6% VAT reduced rate to the sale of respiratory protection masks and to the sale of dermal sanitizing gel;
- The limits increase of the provision of public guarantees, meeting the needs of companies, in the current context of Covid – 19 outbreak.
On April 30, the Council of Ministers approved the strategy for the removal of containment measures in the fight against the Covid-19 disease pandemic. Thus, with a view to beginning the phase of recovery and revitalization of life in society and the economy, and at the same time control of the pandemic, it was decided that the removal of the measures will be progressive and gradual, with their effects being systematically evaluated. The timetable for the containment survey strategy contains a period of 15 days between each phase to assess the impacts of the measures on the evolution of the pandemic, taking into account the continuous updating of data and the assessment of the situation by the health authorities. And, it presents four phases for its implementation: May 4, May 18, May 30/31 and June 1.
V. INDUSTRIAL PROPERTY
On 6 April 2020, «IP Australia» joined the “TMview” database, with more than 1.6 million «IP Australia» trademarks being added. Consequently, “TMview” now has a total of 74 participating offices, providing information and access to a total of over 59.1 million trademarks. The membership of «IP Australia» resulted from the International Cooperation programme managed by “EUIPO” in collaboration with its international partners.
The «WIPO» announced that in 2019, China was the country with the most international applications filed at «WIPO» via the “PCT (Patent Cooperation Treaty)“, surpassing the United States of America by filing, in 2019, 58,990 international applications, compared to 57,840 “PCT (Patent Cooperation Treaty)” applications from the United States of America.
The «INPI» has clarified, regarding the changes in the terms and procedures, resulting from the entry into force of Law no. 4-A/2020, of April 6, and Decree-Law no. 16/2020, of April 15, that as of April 16, 2020, all acts may be promoted through the online services of the «INPI». Furthermore, the «INPI» informed that the acts will be practiced exclusively through the online services made available on the website of the «INPI», and the practice of acts in paper format is not admissible. Finally, the «INPI» clarified to users regarding the suspension of the statute of limitations for administrative infraction proceedings.
The «INPI» launched new online services on its website, namely the International Trademark Application and the European Patent Application, available from April 20th. The launch of these services aims to comply with the provisions of Law no. 4-A/2020 and Decree-Law no. 16/2020, and to carry out the acts of the National Institute of Industrial Property «INPI» exclusively through the Internet.
The «COMPETE2020» published the Notice no. 15/SI/2020 on incentives for «R&D» activities and Investment in Test Infrastructure and Optimisation («Investimento em Infraestruturas de Ensaio e Otimização») in the context of COVID-19. National companies of any nature and under any legal form, as well as non-business entities of the national «I&I» system («ENESII») may apply for such incentives. The application period runs from April 20 until 19h00 on May 29, 2020.
On April 26th, World Intellectual Property Day was celebrated under the slogan “Innovate for a Green Future“, a slogan defined by the World Intellectual Property Organization «WIPO» and to which the «INPI» decided to associate. Also, in the context of “Innovate for a Green Future“, the «INPI» elaborated a study, result of the analysis of publications of patent documents from applicants of Portuguese nationality, whose theme focuses on the transition to technologies associated to the low carbon economy.
On April 27th, the «INPI» published the “Annual Statistics Report 2019“, thus making available the data that allows observing the evolution of Industrial Property Rights in Portugal during the year 2019 and comparing them with the previous year.
In 2019, the “Trademarks and Other Distinctive Trade Signs” registered a decrease of 5.7% in national registration applications (21,556) and an increase of 14.8% in the number of concessions (19,212).
In the area of International trademark protection (“Madrid System”), data from the World Intellectual Property Organization «WIPO» showed a decrease of 20.3% in the demand for this area by residents of Portugal, with a total of 149 applications submitted in 2019.
At the European level, there was an increase of 1.2% in the number of applications for EU Trademarks of Portuguese origin at the European Intellectual Property Office («EUIPO»).
Finally, in the field of Inventions, there was an increase in the number of national patent applications – 965 (14.6% more than in 2018) – as well as an increase in the number of Provisional Patent Applications – 569 – which continue to represent a significant percentage of 59.00% in relation to the total volume of applications made.
On April 29th, the «INPI» made available the 29th edition of the «Boletim de Vigilância Tecnológica – Energias Oceânicas (“BVT Energias Oceânicas”)», published within the scope of the Iberian project between the national institutions that grant industrial property rights in Portugal and Spain, respectively, the Instituto Nacional da Propriedade Industrial («INPI») and the Oficina Española de Patentes y Marcas («OEPM»).
The «BVT» aims to provide the quarterly monitoring of the latest news and publications of International Patent Applications (“PCT“) and European Patent Applications (“EP“), in the technical field of ocean energy. The published “BVT” thus presents the statistics of international patent applications published in the 1st quarter of 2020 under the PCT (“Patent Cooperation Treaty”), by countries of more frequent priority.
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS
- V. INDUSTRIAL PROPERTY