I. EDITORIAL – TERMINATION OF THE SUSPENSION OF JUDICIAL AND PROCEDURAL DEADLINES; EXTRAORDINARY INCOME SUPPORT FOR WORKERS AND FOR THE REDUCTION OF ECONOMIC ACTIVITY OF WORKERS; TAX CHANGES AND EXTRAORDINARY MEASURE ON DEADLINE COUNTING UNDER THE IRC
The month of April was characterised, in legislative terms, by the approval and publication, on the one hand, of Law no. 13-B/2021, of April 5, ending the regime of the suspension of judicial and procedural deadlines adopted in the context of the COVID-19 disease and, on the other hand, of Decree-Law no. 26-C/2021, of April 13, which, within the scope of the COVID-19 disease, has regulated extraordinary support for workers’ income and the extraordinary support for the reduction of the economic activity of workers.
On the legislative sphere, reference should also be made to:
I) Ordinance no. 85/2021, of April 16, which defined the activities of the tourism, culture, events and shows sectors, covered by the amendments introduced by Decree-Law no. 23-A/2021, of March 24, to Decree-Law no. 46-A/2020, of July 30, and Decree-Law no. 6-E/2021, of January 15;
II) Law no. 21/2021, of April 20, which amended the Statute of Tax Benefits, the Stamp Duty Code, the Investment Tax Code, the Vehicle Tax Code and the Single Circulation Tax Code, and created an extraordinary measure for calculating deadlines within the scope of the Corporate Income Tax (IRC);
In the scope of case law, we highlight the Judgment of the Justice Court of April 22, Case C-73/20, which clarified the interpretation to be given to Article 13 of Council Regulation (CE) no. 1346/2000 on insolvency proceedings and Article 12, 1, b) of Regulation (CE) no. 593/2008, on the law applicable to contractual obligations (Rome I), establishing that the law applicable to the contract under the latter regulation also applies to payment made by a third party in performance of the contractual obligation of one of the parties to the contract where, in the context of insolvency proceedings, that payment is contested as an act prejudicial to all the creditors.
Finally, in Miscellaneous, it is worth highlighting the approval by the Council of Ministers, on 29 April, the decree-law that creates an exceptional measure to compensate employers for the increase in the minimum monthly wage (RMMG) by granting a cash subsidy.
Ordinance no. 76/2021, of April 1: Establishes: a) the elements to be included in applications for production licenses and operating licenses for biomass power plants; b) the bidding procedure to be promoted by the Directorate-General for Energy and Geology (DGEG).
Regional Regulatory Decree no. 3/2021/A, of April 1: Regulates the application, in the Autonomous Region of the Azores, of the Presidential Decree no. 31-A/2021, of March 25, providing for specific measures for the Easter period.
Decree no. 6/2021, of April 3: Regulates the state of emergency decreed by the President of the Republic.
Regional Legislative Decree no. 7/2021/A, of April 5: Undertakes the second amendment to Regional Legislative Decree no. 19/2011/A, of June 16, which regulates the activity of tourism information professionals in the Autonomous Region of the Azores.
Regional Legislative Decree no. 8/2021/A, of April 5: Approves the Program of Support to Restaurants and Hotels for the Acquisition of Azorean Products.
Regional Legislative Decree no. 9/2021/A, of April 5: Creates an Extraordinary Support Program for Private Media Organs.
Law no. 13-A/2021, of April 5: Renews the transitory imposition of the obligation to wear masks in public spaces, extending, for the second time, the validity of Law no. 62-A/2020, of October 27.
Law no. 13-B/2021, of April 5: Ceases the regime of suspension of judicial and procedural deadlines adopted within the scope of the COVID-19 disease pandemic, amending Law no. 1-A/2020, of 19 March.
Decree-Law no. 26-A/2021, of April 5: Undertakes the fifth amendment to Decree-Law no. 10-I/2020, of 26 March, establishing exceptional and temporary measures in response to the COVID-19 disease pandemic in the cultural and artistic sphere, especially in relation to non-performed shows.
Law no. 14/2021, of April 6: Transitory regime for the issue of the medical certificate of multi-purpose incapacity for cancer patients and the attribution of the corresponding social, economic and tax benefits foreseen by law, in the context of the COVID-19 disease pandemic.
Council of Ministers Resolution no. 37/2021, of April 6: Approves the National Anti-Corruption Strategy 2020-2024.
Ordinance no. 77/2021, of April 6: Establishes the regulatory norms for the distribution of the net operating results of social games assigned to the Ministry of Health, under the terms of Decree-Law no. 56/2006, of 15 March.
Ordinance no. 78/2021, of April 6: Makes the first amendment to the Regulation on the Support Scheme for the Storage of Fishery Products.
Law no. 15/2021, of April 7: Undertakes the second amendment, by parliamentary appreciation, to Decree-Law no. 6-E/2021, of January 15, which establishes support mechanisms within the scope of the state of emergency.
Law no. 16/2021, of April 7: Amendment, by parliamentary appreciation, to Decree-Law no. 8-B/2021, of January 22, which establishes a set of support measures within the scope of the suspension of in-person teaching and non-teaching activities.
Law no. 17/2021, of April 7: Amendment, by parliamentary appreciation, of Decree-Law no. 10-A/2021, February 2, establishing exceptional management mechanisms for health professionals to perform assistance activities, within the scope of the COVID-19 disease pandemic.
Ordinance no. 79/2021, of April 7: Defines the criteria to be applied for the purpose of distributing to the municipalities the participation in the VAT revenue collected in the accommodation, catering, communications, electricity, water and gas sectors.
Ordinance no. 80/2021, of April 7: Regulates the conditions and procedures related to the payment in instalments to the social security for the regularization of debts of contributions and levies.
Ordinance no. 80-A/2021, of April 7: Makes the first amendment to the Regulation of Cultural Support Measures in the context of response to the pandemic disease COVID-19, approved in annex to the Ordinance no. 37-A/2021, of February 15.
Law no. 18/2021, of April 8: Extends the legal regime applicable to the transfer of a company or establishment to situations of transfer by awarding of supply of services that are materialized by public tender, direct award or any other means, amending the Labour Code.
Law no. 19/2021, of April 8: Defines the conditions for the accumulation of permanent disability benefits with the portion of remuneration earned by workers in the event of partial disability resulting from an accident or occupational disease, amending Decree-Law no. 503/99, of November 20, which approves the legal regime for accidents on duty and occupational diseases within the scope of the Public Administration.
Ordinance no. 81/2021, of April 8: Establishes the regulatory norms necessary for the distribution of the net operating results of social games assigned to the Ministry of Labour, Solidarity and Social Security.
Decree-Law no. 26-B/2021, of April 13: Clarifies the nature of social supports created as part of the response to the pandemic disease COVID19.
Decree-Law no. 26-C/2021, of April 13: Regulates the extraordinary support for workers’ income, created by Law no. 75-B/2020, of December 31, and the extraordinary support for the reduction of the economic activity of workers, in accordance with the provisions of Decree-Law no. 6-E/2021, of January 15.
Decree of the President of the Republic no. 41-A/2021, of April 14: Renews the declaration of a state of emergency, based on the verification of a public calamity situation.
Assembly of the Republic Resolution no. 114-A/2021, of April 14: Authorization of the renewal of the state of emergency.
Ordinance no. 83/2021, of April 15: Defines requirements and procedures for granting authorisations for the exercise of activities related to the cultivation, manufacture, wholesale trade, transport, circulation, import and export of medicines, preparations and substances based on the cannabis plant.
Regional Regulatory Decree no. 3-A/2021/A, of April 15: Regulates the application, in the Autonomous Region of the Azores, of the Presidential Decree no. 41-A/2021, of April 14.
Decree no. 6-A/2021, of April 15: Regulates the state of emergency decreed by the President of the Republic.
Law no. 20/2021, of April 16: Amendments, by parliamentary appreciation, to Decree-Law no. 92/2020, of October 23, which amends the general regime for waste management, approved by Decree-Law no. 178/2006, of September 5.
Ordinance no. 85/2021, of April 16: Defines the activities of the tourism, culture, events, and entertainment sectors, covered by the amendments introduced by Decree-Law no. 23-A/2021, of March 24, to Decree-Law no. 46-A/2020, of July 30, and Decree-Law no. 6-E/2021, of January 15.
Ordinance no. 86/2021, of April 16: Regulates the activity of the Public Support System for Conciliation in Over-indebtedness (SISPACSE), created by Decree-Law no. 105/2020, of December 23, and establishes the rules on the registration, remuneration and training of conciliators to work in that System, as well as the organisation of the SISPACSE public lists.
Decree no. 7/2021, of April 17: Regulates the state of emergency decreed by the President of the Republic.
Ordinance no. 87/2021, of April 19: Determines that the Family and Minor Court of Maia will start operating.
Law no. 21/2021, of April 20: Amends the Statute of Tax Benefits, the Code of Stamp Duty, the Investment Tax Code, the Vehicle Tax Code and the Single Circulation Tax Code and creates an extraordinary measure for counting deadlines within the scope of IRC.
Regional Legislative Decree no. 11/2021/A, of April 20: The deferment of the obligation to return past-due and future payments related to the refundable incentive granted within the scope of the Autonomous Region of the Azores Tourism Incentive Scheme (SITRAA).
Legislative Assembly of the Azores Autonomous Region Resolution no. 17/2021/A, of April 20: Extraordinary support for agricultural producers on the islands of Flores and Corvo.
Rectification Declaration no. 12-A/2021, of April 21: Rectifies Decree no. 7/2021, of April 17, of the Presidency of the Council of Ministers, which regulates the state of emergency decreed by the President of the Republic, published in the Official Gazette, 1st Series, no. 74-A, of April 17, 2021.
Regional Legislative Decree no. 12/2021/A, of April 22: First amendment to Regional Legislative Decree no. 26/2019/A, of November 22 – Legal Regime of the Civil Protection System of the Autonomous Region of the Azores.
Ordinance no. 90/2021, of April 23: Establishes the conditions for access to the credit line with subsidised interest rates for fishing sector operators.
Regional Regulatory Decree no. 4/2021/A, of April 26: Regulates the attribution of financial incentives for the introduction into consumption of new electric vehicles as well as the attribution of financial incentives for the acquisition of charging points for electric vehicles and establishes the values and conditions for the attribution of financial incentives.
Ordinance no. 92/2021, of April 27: Creates the Civil Registry Office of Porto, by merging the 1st, 2nd, 3rd and 4th Civil Registry Offices of Porto, which are now extinct.
Ordinance no. 93/2021, of April 27: Extension of the collective contract amendments between the Ribatejo Farmers’ Association – Employers’ Organisation of the Districts of Santarém, Lisbon and Leiria and the National Union of Workers in Agriculture, Forestry, Fishing, Tourism, Food Industry, Beverages and Related Fields – SETAAB.
Ordinance no. 94/2021, of April 29: Integrates the General Inspection of Agriculture, Sea, Environment and Territorial Planning in the Unique Criminal Case Identifier Number system (NUIPC).
Decree-Law no. 29-A/2021, of April 29: Creates an exceptional and temporary regime for the daily registration of workers on agricultural holdings and in the construction sector, making the fourth amendment to Decree-Law no. 79-A/2020, of October 1.
Council of Ministers Resolution no. 45-C/2021, of April 30: Declares the situation of calamity, in the context of the pandemic of the disease COVID-19.
III.1. Court of Justice of the European Union
Judgement of the Justice Court of April 15, Case C-846/19: Reference for a preliminary ruling. Value added tax (VAT). Directive 2006/112/EC. Economic activity. Supply of services for consideration. Article 2(1)(c) and Article 9(1). Exemptions. Article 132(1)(g). Supply of services closely linked to welfare and social security work. Services performed by a lawyer under powers of representation for the protection of adults lacking legal capacity. Body recognised as being devoted to social wellbeing.
“Article 9(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the supply of services for the benefit of adults lacking legal capacity and intended to protect them in civil matters, the performance of which is entrusted to the person supplying services by a judicial authority in pursuance of the law and remuneration for which is fixed by the same authority as a fixed amount or is based on a case-by-case assessment by taking into account in particular the financial situation of the person lacking legal capacity – and such remuneration may moreover be borne by the State in the event that that person is indigent – where that supply is for consideration, the person supplying services obtains income therefrom on a continuing basis and the overall amount of the compensation for that activity is determined on the basis of criteria intended to ensure that the operating costs incurred by the person supplying services are covered, constitutes an economic activity within the meaning of that provision.
Article 132(1)(g) of Directive 2006/112 must be interpreted as meaning, first, that the supply of services for the benefit of adults lacking legal capacity and intended to protect them in civil matters constitutes a ‘supply of services closely linked to welfare and social security work’, and, secondly, that it is not excluded that a lawyer supplying such services of a social nature may benefit, for the purposes of the business he or she operates and within the limits of those supplies, from recognition as a body devoted to social wellbeing, and such recognition must however necessarily be granted by a judicial authority only if the Member State concerned, by refusing that recognition, exceeded the limits of the discretion which it enjoys in that regard.
The principle of the protection of legitimate expectations does not preclude the tax authority from imposing value added tax (VAT) on certain transactions relating to a previous period, in a situation where that authority has, over a number of years, accepted the taxable person’s VAT returns which do not include transactions of the same kind in its taxable transactions and where the taxable person is unable to recover the VAT due from those who have remunerated those transactions, with the remuneration already paid then deemed to include this VAT already.”.
Judgement of the Justice Court of April 15, Case C-935/19: Reference for a preliminary ruling. Common system of value added tax (VAT). Directive 2006/112/EC. Article 273. Overvaluation, in the tax return, of the amount of the VAT refund. Error of assessment by the taxable person as to the taxable nature of the transaction. Correction of the tax declaration following an audit. Penalty of an amount equal to 20% of the amount of the overstatement of the amount of the VAT refund. Principle of proportionality.
“Article 273 of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax and the principle of proportionality must be interpreted as meaning that they preclude a national regulation which imposes on a taxable person, having wrongly qualified a transaction exempt from value added tax (VAT) as a transaction subject to this tax, a penalty equal to 20% of the amount of the overstatement of the amount of the refund of VAT unduly claimed, insofar as this sanction applies indifferently to a situation in which the irregularity results from an error of assessment made by the parties to the transaction as to the taxable nature of the latter, which characterized by an absence of evidence of fraud and loss of revenue for the Public Treasury, and to a situation in which such special circumstances are lacking.”.
Judgement of the Justice Court, of April 22, Case C-73/20: Reference for a preliminary ruling. Regulation (CE) no. 1346/2000. Insolvency proceedings. Article 4. Law applicable to insolvency proceedings. Law of the Member State within the territory of which the proceedings are opened. Article 13. Acts detrimental to all creditors. Exception. Requirements. Act governed by the law of a Member State other than the State of the opening of proceedings. Act not subject to challenge based on that law. Regulation (CE) no. 593/2008. Law applicable to contractual obligations. Article 12, 1, b). Scope of applicable law. Fulfilment of contractual obligations. Payment made in performance of a contract governed by the law of a Member State other than the State of the opening of proceedings. Performance by a third party. Action for recovery of that payment in the context of insolvency proceedings. Law applicable to that payment.
“Article 13 of Council Regulation (CE) no. 1346/2000 of 29 May 2000 on insolvency proceedings and Article 12, 1, b) of Regulation (CE) 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 meaning that the law applicable to the contract under the latter regulation is the law applicable to the payment made by a third party in performance of the contractual obligation of a party to the contract to pay, where, in the context of insolvency proceedings, that payment is challenged as an act prejudicial to all the creditors.”
III.2 Constitutional Court
Judgement of the Constitutional Court no. 196/2021 of April 8, Case no. 1077/2019:
The Public Prosecutor’s Office filed an appeal to the Constitutional Court, requesting the assessment of the rule contained in article 154 of Law no. 7-A/2016, and the Constitutional Court decided:
“a) To deem unconstitutional, for violation of the prohibition on the creation of taxes with a retroactive nature set forth in article 103, no. 3, of the Constitution, the rule in article 154 of Law no. 7-A/2016, of March 30, in the part in which it attributes an interpretative nature to the wording that article 153 of the same Law gave to item 17.3.4 of the General Stamp Tax Table, annexed to the Stamp Tax Code; and, consequently,
b) Dismiss the appeal.”.
Judgement of the Constitutional Court no. 247/2021, of April 28, Case no. 168/2021:
The Court has decided:
“To declare the unconstitutionality, with mandatory general force, of the rules contained in paragraphs 4 and 5 of article 19, when read together with paragraph 6 of the same article, of Organic Law no. 1/2001, of August 14, which regulates the election of the office holders of the local authority bodies, in the wording given to it by Organic Law no. 1-A/2020, of August 21, on the grounds of infringement of the provisions of paragraph 1 of article 48, in conjunction with paragraph 4 of article 239 and paragraph 2 of article 18, all of the Constitution”.
III.3. Courts of Justice
Judgement of the Coimbra Court of Appeal, of April 7, Case no. 292/06.1IDBRG.C1: Tax crime. Tax fraud. Suspension of the tax criminal procedure. Time limit of the criminal procedure. Suspension of the prescription.
Judgement of the Lisbon Court of Appeal, of April 13, Case no. 3011/19.9YLPRT.L1-7: Special eviction procedure. Opposition to renewal. Suspension of judicial proceedings. Covid-19 legislation.
Judgement of the Lisbon Court of Appeal, of April 22, Case no. 414/19.5T8MDL.L1-8: Bank liability. Time limit. Interruption. Calculation of the deadline. Judicial holidays.
III.4. Administrative and Tax Courts
Judgement of the Supreme Administrative Court, of April 7, Case no. 0835/13.4BELRS: IVA. Regularisation.
Judgement of the Supreme Administrative Court, of April 7, Case no. 0635/15.7BEVIS: General Regime. Administrative offence. Time limit.
Judgement of North Administrative Central Court, of April 15, Case no. 00606/09.2BEBRG: Stamp duty. Donation to the son and his spouse. Renunciation of donation. Public Rectification Deed. Material errors.
IV.1.1. Monographs and Periodic Publications
Susana Amaral Ramos, Recuperação de Empresas – Regimes Legais Anotados, Almedina, abril 2021
A. Barreto Menezes Cordeiro (Coord.), Comentário ao Regulamento Geral de Proteção de Dados e à Lei N.º 58/2019, Almedina, abril 2021
António Gama et al., Comentário Judiciário do Código de Processo Penal – Livro 2: Artigos 124º a 190º, 3.ª Edição, Almedina, abril 2021
António Menezes Cordeiro, Código das Sociedades Comerciais – Anotado, 4.ª Edição, Almedina, abril 2021
José Braz, Ciência, Tecnologia e Investigação Criminal, 2.ª Edição, Almedina, abril 2021
Jorge Pinto Furtado, Comentário ao Regime do Arrendamento Urbano, 2.ª Edição, Almedina, abril 2021
Joaquim Miranda Sarmento, Ricardo Nunes, Marta Morais Pinto, Manual Teórico-Prático de IRC, 4.ª Edição, Almedina, abril 2021
Joaquim Miranda Sarmento, Catarina Matos, Manual Teórico-Prático de IVA, 3.ª Edição, Almedina, abril 2021
António Martins (Coord.), Daniel Taborda (Coord.), Ensaios Sobre Regimes de Simplificação Tributária, Almedina, abril 2021
Luís Manuel Teles de Menezes Leitão, Direito de Autor, 4.ª Edição, Almedina, abril 2021
Virgínio da Costa Ribeiro, Sérgio Rebelo, A Ação Executiva Anotada e Comentada, 3.ª Edição, Almedina, abril 2021
António da Silva Henriques Gaspar et al., Código de Processo Penal Comentado, 3.ª Edição, Almedina, abril 2021
IV.1.2. Generic Guidelines & Cia
Order no. 125/2021-XXII, of 14.04.2021, by order of the Deputy Secretary of State and Tax Affairs
Subject: Financial leasing contracts. Legal moratorium.
Circulate Letter no. 20232, of 16.04.2021, by order of the Direction of Corporate Income Tax Services
Subject: IRC – Rates of municipal surcharge applicable to taxable income for the 2020 tax period.
Circulate Letter no. 30233, of 19.04.2021, by order of the Deputy Director-General of the Tax Management Area-IVA
Subject: IVA –”Balcão Único” or “OSS – One Stop Shop”. Pre-registration or updating of registration data.
Order no. 133/2021-XXII, of 22.04.2021, by order of the Deputy Secretary of State and Tax Affairs
Subject: Readjustment of the fiscal calendar 2021.
Circulate Letter no. 30234, of 23.04.2021, by order of the Deputy Director-General of the Tax Management Area-IVA
Subject: IVA –Deadline for filing the periodic declaration and payment of the respective tax.
Circulate Letter no. 30235, of 27.04.2021, by order of the Deputy Director-General of the Tax Management Area-IVA
Subject: IVA – Non-resident taxable persons. Its relationship with the inversion rules provided for in Article 2, 1, e), g) and h) of the VAT Code.
IV.2.1. Economy, Finance and Taxation
The Council of Ministers approved, on 29 April, a set of diplomas for the prevention and fight against corruption, as well as an amendment to the extraordinary support to the progressive recovery in companies in crisis with temporary reduction of the normal working period (PNT).
The Council of Ministers also approved on the same date, the decree-law that creates an exceptional measure of compensation for employers, given the increase in the value of minimum monthly salary guaranteed (RMMG), through the allocation of a cash grant. This measure aims to reinforce the importance that the increase of the RMMG value assumes in the promotion of a more dignified work and in the promotion of growth, without neglecting the financial weight that it represents in the current economic situation for companies.
V. INDUSTRIAL PROPERTY
The Statistics Report on Inventions, Design, Trademarks and Other Distinctive Signs of Commerce for the year 2020 has been published.
Technological Incidence Rights registered a significant growth when compared to the same period of the previous year, while the levels of demand were lower than in 2019. A positive note for the number of national applications in the field of Inventions (1,124), leading to a growth of 16.5% compared to the same period of the previous year.
After being unanimously adopted by the EUIPO Management Board, PC12 (Common Practice/Recommendations on – Evidence in Trademark Appeal Proceedings) has recently been published throughout the EU.
INPI’s Monthly Statistics for March 2021 were published, with the Monthly Evolution of INPI’s Industrial Property Rights.
Note for trademark applications and other distinctive signs of commerce, which registered the highest monthly value of the last two years, with 2963 applications.
CP11 Common Practice (New types of marks: Examination of formal requirements and grounds for refusal), adopted by the Board in October 2020, has been published, which provides a set of general principles and examples on the examination of formal requirements and grounds for refusal and/or invalidity of new types of marks.
After a year of pandemic and mandatory confinements, the United Nations is proposing to mark 2021 as the International Year of Creative Economy for Sustainable Development.
On April 14, it was held the 14th High Level Meeting of the Anti-Counterfeiting Group (GAC), in digital format, in which the 2020 Activity Report and the Activity Plan for 2021 were unanimously approved. The 2020 Activities Report reveals data on seizures made by the Tax Authority (AT), the Public Security Police (PSP), the National Republican Guard (GNR) and the Food and Economic Security Authority (ASAE), which amounted to a total of 1,390,379 units of counterfeit or pirated products.
The Centromarca – Portuguese Association of Companies of Branded Products, awarded the third edition of the ‘Jornalismo que Marca’ prize, worth 2,500 euros, to journalist Inês Rocha, from Rádio Renascença, for the work “Dropshipping. Estes produtos “portugueses” afinal vinham da China“, published in September 2020.
As of May 1, Small and Medium-sized Enterprises (SMEs) will be able to apply for the third funding window of the European SME Fund, which will close on May 31, 2021. The Fund is open to all EU companies that fall under the official SME definition, offering financial support in the form of reimbursements up to a maximum amount of €1,500 per company.
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS
- V. INDUSTRIAL PROPERTY