I. EDITORIAL – CAPITALISATION AND RESILIENCE FUND; EXTENSION OF BANK MORATORIA; MSE SUPPORT LINE; TECHNOLOGICAL FREE ZONES
On the legislative level, July was characterized by the approval and publication, on the one hand, of Decree-Law no. 63/2021, of July 28, which created a capitalisation fund for commercial companies, called the Capitalisation and Resilience Fund and, on the other hand, of Law no. 50/2021, of July 30, which extended bank moratoria, amending Decree-Law 10-J/2020 of March 26.
Also worthy of note at the legislative level are:
I) Decree-Law no. 64/2021, of July 28, which approved the creation of the Treasury Support Line for Micro and Small Enterprises, called “MSE Support Line”, for the purpose of supporting the treasury of micro and small enterprises in a situation of business crisis;
II) Decree-Law no. 67/2021, of July 30, which established the regime and defined the governance model for promoting technology-based innovation through the creation of technological free zones.
In the scope of case law, it is worth mentioning the Judgement of the Constitutional Court of 14 July, Case no. 356/2021, which declared the unconstitutionality, with mandatory general force, of the rules contained in article 3 of Law no. 16/2021, of 7 April, in article 2 of Law no. 16/2021, of 7 April and in article 2 of Law no. 15/2021, of 7 April. However, the Court preserved the effects produced by those rules until the publication of the abovementioned judgment in the Diário da República.
Finally, regarding Miscellaneous, we highlight the approval, on 22 July, by the Council of Ministers: i) of the draft law that creates the possibility of fixing maximum marketing margins for simple fuels; ii) of the decree-law that establishes the legal regime applicable to the performance, through videoconference, of authentic acts, terms of authentication of private documents and acknowledgements, seeking to respond to the demand for online services, given the restrictions imposed on the practice of face-to-face acts due to the Covid-19 disease pandemic.
Ordinance no. 138-E/2021, of July 1: Approves the models of the supporting documents for the attribution of the status of victim and of the status of especially vulnerable victim, including for the crime of domestic violence.
Ordinance no. 138-F/2021, of July 1: First amendment to Ordinance no. 48/2021, of 4 March, which establishes the procedures for advancing European funds from budget entry and assumption of pluriannual charges.
Ordinance no. 138-G/2021, of July 1: Establishes the requirements for the assessment of indoor air quality in commercial and service buildings, including protection thresholds, reference conditions and conformity criteria, and the respective methodology for measuring pollutants and monitoring compliance with the approved standards.
Ordinance no. 138-H/2021, of July 1: Regulates the activities of the technicians and the competences of the managing entity of the Energy Certification System for Buildings and sets the values for the registration of energy certificates.
Ordinance no. 138-I/2021, of July 1: Regulates the minimum energy performance requirements for the building envelope and technical systems and their application according to the type of use and specific technical characteristics.
Council of Ministers Resolution no. 86-A/2021, of July 1: Amends the measures applicable to certain municipalities within the framework of the calamity situation.
Decree-Law no. 56-A/2021, of July 6: Extends extraordinary support measures for workers and companies in the context of the COVID-19 pandemic disease.
Declaration of Rectification no. 21-A/2021, of July 6: Rectifies Decree-Law no. 30/2021, of May 7, which regulates Law no. 54/2015, of June 22, with regard to mineral deposits.
Decree no. 18/2021, of July 7: Approves the Cooperation Agreement between the Portuguese Republic and the Republic of India on Maritime Transport and Ports, signed in New Delhi on 14 February 2020.
Decree-Law no. 56-B/2021, of July 7: Amends the exceptional regime for situations of late payment of rent and establishes the guarantee of supply of essential services, within the scope of the COVID -19 disease pandemic.
Ordinance no. 141/2021, of July 8: First amendment to Ordinance no. 298/2019, of September 9, establishing complementary national rules for the recognition of producer organisations and their associations and marketing organisations for forest products.
Ordinance no. 142/2021, of July 8: Defines the principles of action and duties of the managing entities (EG), the rules applicable to the specifications and traditional terms, and the rules for the use and marketing of products entitled to the Designation of Origin (DO) and Geographical Indication (GI) of the wine sector.
Ordinance no. 142-B/2021, of July 8: Approves the Regulation of the REACTIVATE SPORTS measure of the Support Fund for the Recovery of Physical and Sporting Activity in the context of response to the pandemic disease COVID-19.
Declaration of Rectification no. 22/2021, of July 9: Rectifies the Law no. 36/2021, of June 14 – “Approves the framework law of the public utility status”.
Declaration of Rectification no. 23/2021, of July 9: Rectifies Ordinance no. 126/2021, of June 24, which regulates the direct consultation, by judicial administrators, of the databases of the tax administration, social security, Caixa Geral de Aposentações, Salary Guarantee Fund, land registry, commercial registry, automobile registry, civil registry and other similar registries or archives.
Ordinance no. 143/2021, of July 9: Amends the Regulations of the Programme of Conclusion or Extending Cooperation Agreements for the Development of Social Responses, provided for in article 6 of Ordinance no. 100/2017, of March 7.
Ordinance no. 144/2021, of July 9: Extends until 31 October 2021 the deadline for submitting accounts for the year 2020 to the services of the Institute of Social Security, I. P.
Decree-Law no. 56-C/2021, of July 9: Amends the regime of administrative offences within the scope of the situation of calamity, contingency and alert.
Council of Ministers Resolution no. 91-A/2021, of July 9: Amends the measures applicable to certain municipalities within the framework of the calamity situation.
Decree-Law no. 57/2021, of July 13: Amends the legal regime of the national road haulage of goods contract.
Decree-Law no. 58/2021, of July 13: Revokes the Martins Sarmento Foundation.
Ordinance no. 146/2021, of July 13: Approves the Regulation on Arts Support Programmes, under the scope of the regime for State financial support to the arts.
Decree-Law no. 59/2021, of July 14: Establishes the regime applicable to the availability and disclosure of telephone lines for consumer contact.
Decree-Law no. 60/2021, of July 14: It ensures the implementation of Regulation (EU) 2020/740 on the labelling of tyres regarding fuel efficiency and other parameters.
Ordinance no. 147/2021, of July 14: Creates the Amadora Land and Commercial Registry Office, by merging the 1st Amadora Land Registry Office, which includes the commercial registry of the entire municipality of Amadora, and the 2nd Amadora Land Registry Office, which are extinct.
Ordinance no. 149/2021, of July 15: Establishes the conditions for officious verification, by the IEFP, I. P., of the withdrawal foreseen in no. 2 of article 8-B of Ordinance no. 170-A/2020, of 13 July.
Decree-Law no. 60-A/2021, of July 15: Allows the availability of rapid antigen tests in the form of self-tests in supermarkets and hypermarkets.
Council of Ministers Resolution no. 92-A/2021, of July 15: Amends the measures applicable to certain municipalities within the framework of the disaster situation.
Declaration of Rectification no. 24-A/2021, of July 16: Rectifies the Council of Ministers Resolution no. 92-A/2021, of July 15, which amends the measures applicable in a situation of calamity, in the context of the pandemic disease COVID -19.
Council of Ministers Resolution no. 93/2021, of July 19: Approves the draft investment tax contracts to be entered into between the Portuguese State and several commercial companies.
Assembly of the Republic Resolution no. 209/2021, of July 20: Approves the Agreement between the Portuguese Republic and the Community of Portuguese Speaking Countries revising, in tax matters, the Agreement between the Portuguese Government and the Community of Portuguese Speaking Countries regarding the Establishment of the Headquarters of the Community in Portugal, signed in Lisbon on July 3, 1998.
Council of Ministers Resolution no. 94/2021, of July 20: Authorises the expenditure related to the financial support resulting from the signing of association contracts.
Declaration of Rectification no. 25/2021, of July 21: Rectifies Law no. 30/2021, of May 21, which “Approves special measures for public contracting and amends the Public Contracts Code, approved in annex to Decree-Law no. 18/2008, of January 29, the Procedure Code for Administrative Courts, approved in annex to Law no. 15/2002, of February 22, and Decree-Law no. 200/2008, of October 9”.
Declaration of Rectification no. 26/2021, of July 21: Rectifies Ordinance no. 136/2021, of June 30, which makes the first amendment to Ordinance no. 166/2019, of May 29, which approved the Statutes of the Institute of Nature Conservation and Forests, I. P.
Ordinance no. 157/2021, of July 22: Amends the recapitulative statement referred to in line i) of no. 1 of article 29 of the VAT Code and line c) of no. 1 of article 30 of the VAT System in Intra-Community Transactions, as well as the corresponding instructions for completion, providing for the registration, by certified accountants, of the determining fact of a situation of fair impediment of short duration.
Ordinance no. 158/2021, of July 22: Amends the statement of the request for prior authorisation in the adjustment procedure foreseen in articles 78-B and 78-C of the VAT Code, as well as the respective instructions for filling in, foreseeing the registration, by certified accountants, of the determining fact of a situation of fair impediment of short duration.
Ordinance no. 159/2021, of July 22: Amends the periodic VAT declaration, annex R and respective instructions for completion, providing for the registration, by certified accountants, of the determining fact of a fair impediment of short duration, and the declaration of values within the scope of the taxable person inversion rule applicable to the acquisition of cork, timber, pine cones and pine nuts with shell.
Council of Ministers Resolution no. 96-A/2021, of July 22: Amends the measures applicable to certain municipalities within the framework of the calamity situation.
Law no. 48/2021, of July 23: Prevents the duplication of fines related to the cleaning of fuel management networks in forest areas, amending Law no. 75-B/2020, of 31 December – State Budget for 2021.
Law no. 49/2021, of July 23: Includes new psychoactive substances in the definition of drugs, transposing Commission Delegated Directive (EU) 2021/802, of 12 March 2021, and amending the Decree-Law 15/93, of January 22, which approves the legal regime applicable to the trafficking and consumption of narcotics and psychotropic substances.
Ordinance no. 160/2021, of July 23: Establishes a temporary and specific regime of exemption from the waste management tax (TGR) applicable to the management of waste deposited in the lands of the former Quimiparque, in Barreiro, and the former National Steelworks, in Seixal, within the scope of the actions to solve the respective environmental liabilities.
Decree-Law no. 62/2021, of July 26: It ensures the implementation in the internal legal order of Regulation (EU) No 2019/1148 on the marketing and use of explosives precursors.
Regulatory Decree no. 4/2021, of July 26: Amends the rules applicable to the licensing of facilities, shooting ranges and shooting fields for the practice of shooting with firearms.
Ordinance no. 161/2021, of July 26: Third amendment to Ordinance no. 390/2019, of 29 October (Fourth amendment to Ordinance no. 224/2015, of 27 July – sets out the legal framework for the prescription and dispensation of medicines and health products and defines the information obligations to be provided to users).
Decree-Law no. 63/2021, of July 28: Creates the Companies Capitalisation Fund.
Decree-Law no. 64/2021, of July 28: Approves the creation of the Treasury Support Line for Micro and Small Enterprises.
Ordinance no. 164-A/2021, of July 29: Makes the first amendment to Ordinance no. 138-B/2021, of June 30, which establishes an exceptional and temporary co-payment regime for Rapid Antigen Tests (TRAg) for professional use.
Ordinance no. 163/2021, of July 29: First amendment to Ordinance no. 281/2019, of August 30, establishing restrictions on the road circulation of heavy automobiles transporting dangerous goods in cisterns.
Ordinance no. 164/2021, of July 29: Ordinance extending the alterations of the collective contract between ACIRO – Associação Comercial, Industrial e Serviços da Região Oeste and CESP – Sindicato dos Trabalhadores do Comércio, Escritórios e Serviços de Portugal and others.
Law no. 50/2021, of July 30: Extends bank moratoria, amending Decree-Law 10-J/2020 of March 26.
Law no. 51/2021, of July 30: National survey on food waste in Portugal.
Decree-Law no. 65/2021, of July 30: Regulates the Legal Framework for Cyberspace Security and defines the cybersecurity certification obligations in implementation of Regulation (EU) 2019/881 of the European Parliament of 17 April 2019.
Decree-Law no. 66/2021, of July 30: Creates the social tariff for the supply of broadband Internet access services.
Decree-Law no. 67/2021, of July 30: Establishes the regime and defines the governance model for the promotion of technology-based innovation through the creation of technology free zones.
Decree-Law no. 69/2021, of July 30: It bans the placing on the market of certain cosmetic products and detergents containing plastic microspheres.
Ordinance no. 165/2021, of July 30: First amendment to Ordinance no. 1054/2009, of September 16, which sets the value of the fees for the services provided by the National Authority for Emergency and Civil Protection, under the legal regime of fire safety in buildings.
Ordinance no. 166/2021, of July 30: Extraordinary support for the progressive resumption of activity in companies in a situation of business crisis.
Council of Ministers Resolution no. 101-A/2021, of July 30: Amends the measures applicable in a 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 July 1, Case C-521/19: Reference for a preliminary ruling. Taxation. Value added tax (VAT). Directive 2006/112/EC. Tax inspection. Supply of services as an activity of an agent for performing artists. Transactions subject to VAT. Transactions not declared to the tax authority and not invoiced. Fraud. Reconstitution of the taxable amount for income tax purposes. Principle of VAT neutrality. Inclusion of VAT in the reconstituted taxable amount.
“Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in particular Articles 73 and 78 thereof, read in the light of the principle of neutrality of value added tax (VAT), must be interpreted as meaning that, where taxable persons for VAT purposes, by fraud, have not indicated the existence of the transaction to the tax authority, issued invoices or shown the income generated during that transaction in a direct tax declaration, the reconstitution, as part of an inspection of that declaration, of the amounts paid and received during the transaction at issue by the tax authority concerned must be regarded as a price already including VAT, unless, under national law, the taxable persons have the possibility of subsequently passing on and deducting the VAT at issue, notwithstanding the fraud.”.
Judgement of the Justice Court of July 8, Case C-695/19: Reference for a preliminary ruling. Directive 2006/112/EC. Value added tax (VAT). Exemptions. Article 135(1)(a). Definition of ‘insurance’ transactions and of ‘related services performed by insurance brokers and insurance agents’. Article 174(2). Right to deduction. Proportional deduction. Extended warranties on household electrical appliances and other computer and telecommunications equipment. Definition of ‘financial transactions’.
“Article 174(2)(b) and (c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Article 135(1) of that directive, must be interpreted as meaning that it does not apply to transactions involving intermediation in the sale of warranty extensions that are performed by a taxable person in the course of its main activity consisting in the sale to consumers of household electrical appliances and other computer and telecommunications equipment, with the consequence that the amount of turnover relating to those transactions must not be excluded from the denominator of the fraction used to calculate the deductible proportion referred to in Article 174(1) of that directive.”.
III.2 Constitutional Court
Judgement of the Constitutional Court no. 545/2021 of July 14, Case no. 356/2021:
The Prime Minister has requested, under article 281, no. 2, paragraph c) of the Constitution, a declaration of unconstitutionality, with general binding force, of: a) Article 3 of Law no. 16/2021, of April 7; b) Article 2 of Law no. 16/2021; c) Article 2 of Law no. 15/2021, of April 7. The Prime Minister also requested, on a subsidiary basis, the declaration of illegality, with general mandatory force, of the same rules.
After examining the request, the Constitutional Court decided:
“a) Not to declare the unconstitutionality of the rule contained in article 3 of Law no. 16/2021 of April 17, insofar as it adds article 4-C to Decree-Law no. 8-B/2021 of January 22 and, through this, amends article 23, nos. 7 and 8, and article 24, nos. 7 and 8, both of Decree-Law no. 10-A/2020 of March 13;
- b) Not to declare the unconstitutionality of the rule in article 2 of Law no. 16/2021, of April 7, insofar as it introduces a subparagraph b) of article 1 of Decree-Law no. 8-B/2021, of January 22;
- c) Declare the unconstitutionality, with mandatory general force, of the rule contained in article 3 of Law 16/2021, of April 7, in the part in which it adds article 4-C to Decree-Law 8-B/2021, of January 22 and, through this, amends numbers 2 and 3 of article 24 of Decree-Law 10-A/2020, of March 13, for violation of the provisions of article 167 (2) and 169 (1) of the Constitution;
- d) Declare the unconstitutionality, with mandatory general force, of the rule contained in article 2 of Law no. 16/2021, of April 7, in the part in which it amends no. 2 of article 3 of Decree-Law no. 8-B/2021, of January 22, for violation of the provisions of no. 2 of article 167 of the Constitution;
- e) Declare the unconstitutionality, with mandatory general force, of the rule contained in article 2 of Law no. 15/2021, of April 7, which altered, in parliamentary appraisal, no. 6 of article 3 of Decree-Law no. 6-E/2021, of January 15, for violation of the provisions of no. 2 of article 167 of the Constitution;
- f) To safeguard, pursuant to article 282 (4) of the Constitution, for reasons of legal certainty and equity, the effects produced until the publication of this judgement in the Diário da República by the rules whose declaration of unconstitutionality is made in subparagraphs c), d) and e).”.
III.3. Courts of Justice
Judgement of the Lisbon Court of Appeal of July 1, Case no. 21057/19.5T8LSB.L1-8: Special eviction procedure. Eviction. Opposition. Legal aid. Provision of guarantee in the amount of the rents. Exemption.
Judgement of the Guimarães Court of Appeal of July 1, Case no. 2269/20.5T8BRG-A.G1: Passive legitimacy. Transmission of contractual position. Merger of companies. Limitation of labour credits.
Judgement of the Coimbra Court of Appeal of July 7, Case no. 4/19.0PECTB.C1: Enquiry. Investigation. Judicial authority. Statements by co-accused. Trial. Reading of statements. Absence of the co-defendant making the statement. Confidentiality. Probative validity. Proof prohibited. New sentence.
Judgement of the Coimbra Court of Appeal of July 7, Case no. 577/20.4JALRA-A.C1: House search. Search of inhabited house. Extensibility of the search.
III.4. Administrative and Tax Court
Judgement of the Supreme Administrative Court of July 1, Case no. 048/21.1BALSB: Uniformization of case-law. Atypical contract. Renewal of contract.
IV.1.1. Monographs and Periodic Publications
Jorge Andrade da Silva, Código dos Contratos Públicos – Anotado e Comentado, 9.ª Edição, Almedina, julho 2021
M. Nogueira da Costa, O Poder Disciplinar na Lei Geral do Trabalho em Funções Públicas, Almedina, julho 2021
Francisco Pimentel, Guia Jurídico das Férias, Faltas e Licenças dos Trabalhadores em Funções Públicas, Almedina, julho 2021
Pedro Costa Gonçalves, Direito dos Contratos Públicos, 5.ª Edição, Almedina, julho 2021
IV.1.2. Generic Guidelines & Cia
Order no. 215/2021-XXII, of 02.07.2021, by order of the Deputy Secretary of State of the Tax Affairs
Subject: Flexibilization of tax obligations.
Circulate Letter no. 20234, of 05.07.2021, by order of the Corporate Income Tax Directorate Services
Subject: Use of depreciation/amortization quotes below the minimum.
Circulate Letter no. 15841, of 07.07.2021, by order of the Customs Regulation Directorate Services
Subject: Sars-Cov vaccine exportation: constraints – OC15823/15835.
Circulate Letter no. 15842, of 07.07.2021, by order of the Customs Taxation Directorate Services
Subject: Rex Trader Portal.
Circulate Letter no. 15843, of 08.07.2021, by order of the Customs Regulation Directorate Services
Subject: Product safety: importation constraints – R.ª OC15054/2012.
Order no. 224/2021-XXII, of 08.07.2021, by order of the Deputy Secretary of State of the Tax Affairs
Subject: Stamp Duty Monthly Statement – extension of Order no. 42/2021 until the end of the year 2021.
Order no. 232/2021-XXII, of 08.07.2021, by order of the Deputy Secretary of State of the Tax Affairs
Subject: Flexibilization of tax obligations in the context of the mutual collaboration principle between the Tax and Customs Authorities and citizens and companies.
Order no. 6854, of 13.07.2021, by order of the Deputy Secretary of State of the Tax Affairs’ Office
Subject: Establishes the unit price for cigarettes and rolling tobacco’s stamp which benefit from tobacco tax exemption.
Order no. 240/2021-XXII, of 14.07.2021, by order of the Deputy Secretary of State of the Tax Affairs Subject: 2021’s fiscal calendar adjustments – Model 22 e IES/DA.
IV.2.1. Economy, Finance and Taxation
The Council of Ministers approved, on July 22, the draft law creating the possibility of setting maximum margins of marketing for simple fuels, enabling the Government to intervene with the setting of maximum margins in all components of the value chains of gasoline and diesel simple and bottled GPL, in order to give appropriate and proportionate response to events of market distortion in essential fuels to the lives of consumers and businesses.
The Council of Ministers also approved, on the same date, the decree-law that establishes the legal regime applicable to the realization, through videoconference, of authentic acts, terms of authentication of private documents and acknowledgements, seeking to respond to the demand for online services, given the restrictions imposed on the practice of face-to-face acts due to the Covid-19 disease pandemic.
Finally, the following were approved: i) the draft law, to be submitted to the Assembly of the Republic, which updates the rules for the installation of video surveillance systems in risk areas and for the use of image recording systems by security forces, respecting the fundamental rights of citizens; and ii) the decree-law amending the price revision system for public and private works contracts and the acquisition of goods and services.
V. INDUSTRIAL PROPERTY
The new Table of Industrial Property Fees was published in the 2nd Series of the Diário da República, on 8 June, updating the fees for the various types of Industrial Property for the year 2021, effective as of 1 July.
On the 5th July, a public session was held to assess the Portuguese Presidency of the Council of the European Union, which took place from 1 January to 30 June 2021.
The regional project IBEPI (Ibero-American IP Programme) has been launched by the Ibero-American National IP Institutes, being part of the project 14 countries of the region, represented by the National IP Institutes of Argentina, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Spain, Guatemala, Mexico, Paraguay, Peru, Portugal, Dominican Republic and Uruguay. IBEPI aims to promote the development of Ibero-American societies through the strategic use of Industrial Property (IP), as a support to public policies, generating, consequently, an instrument of competitiveness in the industrial, commercial and R&D sectors of the region.
The list of approved candidates for the Aptitude Test for Industrial Property Agent was published in Diário da República by Notice no. 9753/2020 of 30th June.
As of 1 July 2021, Small and Medium-sized Enterprises (SMEs) became eligible to apply for the 4th funding window of the European SME Fund, closing on 31 July. The Fund offers financial support in the form of reimbursement of 50% of the expenses incurred in filing one or more applications for registration of trademarks and designs (application fees), up to a maximum amount of €1,500.00 per company.
In order to clarify contents regarding Industrial Property, to inform about the advantages and importance of IP, as well as to help all interested parties to create a solid base of knowledge on various topics, INPI has published a new informative brochure on the subject of Patents and Utility Models.
The numbers of Industrial Property Rights (IPR) applications and concessions for the month of June 2021 have been made available. Note for the increase of Trademark and OSDC applications, of 34.7%, compared to 2020 and the increase of 30.7%, compared to the previous year, of the number of European Union Trademark and International Trademark applications, originating in Portugal.
The European Observatory on IPR infringements, of the European Union Intellectual Property Office (EUIPO), presented a balance of the media coverage of the Information Campaign launched on World Anti-Counterfeiting Day, 8 June, which reached a total of more than two billion people.
The 34th edition of the Bulletin of Technological Surveillance (BVT) – Ocean Energies, published within the scope of the Iberian project between INPI and the OEPM, was made available, with emphasis on the new list of publications of patent applications on floating offshore wind energy. The BVT now incorporates the technical areas of wave energy, tidal energy, floating offshore wind energy and various oceanic energies.
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS
- V. INDUSTRIAL PROPERTY