I. EDITORIAL – RIGHT IN REM OF PERMANENT HOUSING
In the month of January, we highlight, in terms of legislation, the approval and publication of the Decree-Law no. 1/2020 of January 9, which created the right in rem of permanent housing, a right that gives one or more natural persons the right to reside permanently for a lifelong period in another person’s home, by paying the owner of the property a pecuniary security and periodic fees.
In the legislative sphere, it should also be highlighted the Ordinance no. 3/2020 of 13 January, which established the average value of construction per square meter for the purposes of Article 39 of the Municipal Property Tax Code, to be in force in the year 2020. Reference should also be made to Ordinance no. 4/2020 of January 13, amending the Ordinance no. 380/2017 of December 19, which in its turn regulates the electronic processing of cases in the Circle Administrative Courts, the Tax Courts, the Central Administrative Courts and the Supreme Administrative Court.
In the case-law area, it should be pointed out Judgement of the Justice Court of January 22, Case C-32/19, which ruled on the interpretation of Article 17(1)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. This judgement establishes the interpretation of the above mentioned legal norm as meaning that, for the purpose of acquiring the right of permanent residence in the host Member State before completion of a continuous period of 5 years of residence, the conditions that a person must have been working in that Member State at least for the preceding 12 months and must have resided in that Member State continuously for more than 3 years apply to workers who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension.
Also concerning case-law, it is worthy of mention the judgement of the Supreme Administrative Court no. 0325/14.8BEMDL, in which it was discussed the registry in the tax real estate register of the wind turbines as an urban building. It was decided that they do not have economic autonomy and are therefore not subject to Municipal Property taxation.
Finally, in Miscellaneous, we would like to point out the partial transposition of the Directive (EU) 2016/1164 amending the Corporate Income Tax Code, in order to neutralize the tax effects of cross-border tax avoidance practices, performed with the purpose to take advantages from disparities between different tax systems, as regards the methods of fixing the taxable base.
II. LEGISLATION
Decree-Law no. 1-A/2020 of January 3: Gives continuity in 2020 to the Support Programme for the Reduction of Fares in Public Transport.
https://dre.pt/application/conteudo/127764896
Regional Legislative Decree no. 1/2020/A of January 8: Budget of the Autonomous Region of the Azores for the year 2020.
https://dre.pt/application/conteudo/127816253
Decree-Law no. 1/2020 of January 9: Creates the right in rem of permanent housing.
https://dre.pt/application/conteudo/127899795
Ordinance no. 2/2020 of January 10: Regulates the terms of recognition and maintenance of the Statute of Informal Caregiver, approved in annex to Law no. 100/2019, of September 6.
https://dre.pt/application/conteudo/127957590
Ordinance no. 3/2020 of January 13: Establishes the average construction value per square metre, for the purposes of Article 39 of the Municipal Property Tax Code, in force in the year 2020.
https://dre.pt/application/conteudo/127970106
Ordinance no. 4/2020 of January 13: Amends Ordinance no. 380/2017, of 19 December, which regulates the electronic processing of proceedings in the Circle Administrative Courts, Tax Courts, Central Administrative Courts and the Supreme Administrative Court.
https://dre.pt/application/conteudo/127970107
Law no. 1/2020 of January 14: Extension of the validity of the independent technical observatory for analysis, monitoring and evaluation of forest and rural fires that occur in the national territory, created by Law no. 56/2018, of August 20.
https://dre.pt/application/conteudo/128071718
Decree-Law no. 2/2020 of January 14: Amends the Regulation of License Plate, the Code of the Road and the Regulation of the Legal Permit to Drive.
https://dre.pt/application/conteudo/128071719
Ordinance no. 6/2020 of January 14: Amendment to the Regulation of the Support Scheme for Investments in Fishing Ports, Landing Sites, Shores and Fish Markets of the Operational Programme (OP) «Mar 2020», for mainland Portugal, approved by Ordinance no. 57/2016, of March 28, amended by Ordinance no. 240/2016, of September 2, by Ordinance no. 297/2016, of November 28, by Ordinance no. 53/2017, of February 2, and by Ordinance no. 400/2019, of December 2.
https://dre.pt/application/conteudo/128071724
Ordinance no. 8/2020 of January 16: Approves the models, in electronic and physical format, of the recreational boating booklet.
https://dre.pt/application/conteudo/128144625
Order no. 785/2020 of January 21: Approves the 2020 withholding tables from employment income and pensions received by residents in the mainland Portugal.
https://dre.pt/application/conteudo/128277571
Regional Legislative Decree no. 2/2020/A of January 22: Annual Regional Plan for 2020 of the Autonomous Region of the Azores.
https://dre.pt/application/conteudo/128355820
Regional Legislative Decree no. 3/2020/A of January 22: Approves the organisation and operation of the Institute of Food and Agricultural Markets of Azores – «Instituto de Alimentação e Mercados Agrícolas, Instituto Público Regional dos Açores (IPRA)».
https://dre.pt/application/conteudo/128355821
Regional Legislative Decree no. 4/2020/A of January 22: Fourth amendment to Regional Legislative Decree no. 28/99/A of July 31, as amended by Regional Legislative Decrees No. 41/2003/A of November 6, 2/2007/A of January 24 and 1/2010/A of January 4, approving the Statute of the Regional Health Service of the Azores (organisation and operation of the health services of the Autonomous Region of the Azores).
https://dre.pt/application/conteudo/128355822
Ordinance no. 15/2020 of January 23: Establishes the amounts of the fees due as part of the administrative procedures regarding electricity production and trading of electricity.
https://dre.pt/application/conteudo/128415686
Ordinance no. 16/2020 of January 23: Establishes the amounts of the fees due within the administrative procedures related to the self-consumption activity and the Renewable Energy Communities (RECs).
https://dre.pt/application/conteudo/128415687
Ordinance no. 19-A/2020 of January 24: Approves the extraordinary procedure and period for the participation of rents foreseen by no. 3 of article 15-N of Decree-Law no. 287/2003, of 12 November, relative to the year 2019, and proceeds with the amendment of article 5 of Ordinance no. 406/2019, of 20 December.
https://dre.pt/application/conteudo/128523738
Regional Legislative Decree no. 2/2020/A of January 27: Provision of financial incentives for the purchase of electric vehicles and charging points.
https://dre.pt/application/conteudo/128515585
Ordinance no. 21/2020 of January 28: Approves the injunction application model and revokes Ordinance No. 808/2005, of September 9.
Judgement of the Justice Court of January 22, Case C-32/19: Reference for a preliminary ruling. Freedom of movement for persons. Citizenship of the Union. Right to move and reside freely in the territory of the Member States. Directive 2004/38/EC. Article 17(1)(a). Right of permanent residence. Acquisition before completion of a continuous period of five years of residence. Workers who, at the time they stop working, have reached the age for entitlement to an old age pension.
Summary:
“Article 17(1)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that, for the purpose of acquiring the right of permanent residence in the host Member State before completion of a continuous period of 5 years of residence, the conditions that a person must have been working in that Member State at least for the preceding 12 months and must have resided in that Member State continuously for more than 3 years apply to workers who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0032
Judgement of the Justice Court of January 23, Case C-578/18: Reference for a preliminary ruling. Internal market in electricity. Directive 2009/72/EC. Article 3. Consumer protection. Article 37. Tasks and powers of the regulatory authority. Out-of-court dispute settlement. Concept of ‘party’. Right to appeal against a decision of the regulatory authority. Complaint made by a household customer against an electricity distribution system operator.
Summary:
“Article 37 of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC must be interpreted as meaning that it does not require Member States to confer competence on the regulatory authority to settle disputes between household customers and system operators and, consequently, to grant household customers who have lodged a complaint with the regulatory authority against a system operator the status of ‘party’ within the meaning of that provision, and the right to appeal against the decision taken by that authority following that complaint.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0578
III.2 Constitutional Court
Judgment of the Constitutional Court no. 48/2020, Case no. 548/2019:
The Court considered as constitutional the paragraphs no. 1 and no. 2, Article 20 of Personal Income Tax code (amended by Decree-Law No. 198/2001 of July 3) as far as it excludes the possibility to deduct the incurred costs of Bar Association and Lawyers and Solicitors Pension Fund mandatory contributions. For this reason, revoked the Administrative and Tax Oporto Court 30.03.2019 decision, which considered the above-mentioned Article 20 amendment as unconstitutional on the grounds of infringement of the principle of equal treatment.
http://www.tribunalconstitucional.pt/tc/acordaos/20200048.html
III.3. Courts of Justice
Judgement of the Court of Appeal of Lisbon of January 9, Case no. 926/17.2T8LRS-B-8: Opposition to execution. Contract of loan. Note. Guarantor.
Judgement of the Court of Appeal of Lisbon of January 14, Case no. 1298/11.4TVLSB.L1-1: Contract work. Insolvency. Exception of non-compliance. Elimination of work defects. Compensation. Bad faith litigation.
Judgement of the Court of Appeal of Lisbon of January 21, Case no. 1790/17.7T8VFX.L1-7: Promissory contract. Non-compliance. Impugnation of facts. Negative fact. Presumption.
III.4. Administrative and Tax Court
Judgement of the Supreme Administrative Court of January 8, Case no. 0325/14.8BEMDL
Judgement of the Administrative Central South Court of January 14, Case no. 207/99.1BTLRS: Lack of reasoning. VAT. Exemption. Insurance.
IV. BRIEFS
IV.1. DOCTRINE
IV.1.1. Monographs and Periodic Publications
Paulo Alves Pardal, Nuno Cunha Rodrigues, Luís Silva Morais, Direito da Economia, Volume I, AAFDL, janeiro 2020.
IV.1.2. Generic Guidelines & Cia
Circulate letter no. 15746/2020, of 07.01.2020, of Deputy General Director of Customs Management Area
Subject: Internet availability of the implementing decision (EU) 2019/2151 – Community Customs Code (“CAU”).
Circulate letter no. 20216, of 13.01.2020, of Deputy General Director of Personal Income Tax Department
Subject: Amendments to statement forms no. 25, no. 37 and no. 39.
Circulate letter no. 2/2020, of 22.01.2020, of General Director of Personal Income Tax Department (“DSIRS”)
Subject: Withholding tax on income employment and pensions. Withholding tax rates tables – 2020 – Mainland Portugal
Doctrinaire Statement no. 2020 228, of 23.01.2020, of Deputy General Director of Income Tax and International Relations
Subject: Billing-issue rules of documents by exempt entities.
IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation
Finally, in miscellaneous, we highlight the approval of two law proposals, related to fight the tax avoidance.
The first draft law establishes a new regime of mandatory communication to the Tax Authority of internal and transborder mechanisms with tax importance, transposing the Council Directive (EU) 2018/822 as regards mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements.
The second draft law establishes rules against tax avoidance practices with direct impact on internal market functioning as regards hybrid mismatches with third countries, amending the Corporate Income Tax Code.
It was also approved the law proposal, transposing Directive (EU) no. 2017/828 regarding the exercise listed companies shareholders rights related to the long-term involvement incentives with the aim of making up the shortfalls of Governance of European Union listed companies, reinforcing certain shareholders rights and targeting to encourage their involvement in its management, focusing on the long-term prospects and sustainability.
https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=318
V. INDUSTRIAL PROPERTY
The Department of Commerce and Intellectual Property of Malta is part, since January 22nd, of the Common Harmonized Database on Product Indications at DesignClass. Therefore, the complete set of Maltese translations is now available to all users through the DesignClass tool using the Locarno Classification, which consists of 32 classes and 219 sub-classes.
https://euipo.europa.eu/ohimportal/pt/news/-/action/view/5543121
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