I. EDITORIAL – CALAMITY, CONTINGENCY AND ALERT SITUATION
The month of June was characterized, at the legislative level, by the approval and publication of Decree-Law no. 26/2020, of June 16, which amended the exceptional measures for the protection of credits of families, companies, private social solidarity institutions and other entities of the social economy, as well as the special regime of personal guarantees of the State, in the context of the COVID-19 disease pandemic.
On the other hand, it is worth noting the Resolution of the Council of Ministers no. 51-A/2020, of June 26, which declared, until July 14, the situation of calamity, contingency and alert, in accordance with the evolution of the pandemic and depending on the epidemiological situation at territorial level.
In the field of case-law, it is worth noting the Judgment of the Court of Justice of June 11, Case C-43/19, which defined, in relation to the common system of value added tax (VAT), the interpretation to be given to Article 2(1)(c) of Council Directive 2006/112/EC, of 28 November 2006.
In case-law, it is also relevant to note the Judgment of the Court of Justice of June 11, Case C-206/19, which defined the meaning of Articles 9, 10 and 14 of Directive 2006/123/EC of the European Parliament and of the Council, of 12 December 2006, on services in the internal market, in particular as regards the specific requirements applicable to legal persons controlled or represented by nationals of another Member State.
Finally, in the context of Miscellaneous, we would like to highlight the approval, in the Council of Ministers, of a proposal for a law amending several tax rules in the field of tax justice, with a view to strengthening taxpayers’ guarantees, reinforcing the simplification of the tax system and reducing existing disputes.
Ordinance no. 135/2020, of June 2: Proceeds with the first amendment to the Technical Regulation on Fire Safety in Buildings (SCIE), approved by Ordinance no. 1532/2008, of December 29.
Regional Legislative Decree no. 12/2020/A, of June 3: Proceeds with, within the scope of the measures to combat the pandemic COVID-19 and update the complementary regional remuneration: a) The integration of the measures, and the respective effects, foreseen in the Resolutions of the Regional Government of the Azores no. 60/2020, of March 13, 62/2020, of 16 March, 72/2020, of March 24, rectified by the Declaration of Rectification no. 2/2020, of March 25, 80/2020, of March 30, 81/2020, of March 30, and 93/2020, of April 2; b) Amendments to articles 10 and 11 of Regional Legislative Decree no. 8/2002 /A, of April 10.
Ordinance no. 136/2020, of June 4: Proceeds: a) for the year 2020, the identification of coastal and transitional bathing waters and inland bathing waters, establishing the respective bathing seasons, in accordance with the provisions of paragraph 6 of article 4 of Decree-Law no. 135/2009, of June 3, amended by Decree-Law no. 113/2012, of May 23; b) qualification as a bathing beach, where the presence of lifeguards is ensured during the respective bathing season, in accordance with Law no. 44/2004, of August 19, in its current wording, as well as the identification of beaches for limited use, pursuant to paragraph 2 of article 11 of Decree-Law no. 159/2012, of July 24.
Declaration of Rectification no. 23-A 2020, of June 4: Rectifies the Resolution of the Council of Ministers no. 40-A/2020, of May 29, which extends the declaration of the calamity situation, within the scope of pandemic of the disease COVID-19, published in the Official Gazette of the Portuguese Republic, 1st series, 1st supplement, no. 105, of May 29, 2020.
Regional Implementing Decree no. 12/2020/A, of June 5: Proceeds with the fifth amendment to Regional Regulatory Decree no. 20/2014 / A, of 23 September, which regulates the Subsystem of Incentives for Local Development.
Regional Implementing Decree no. 13/2020/A, of June 5: Classifies as a special conservation area (ZEC) the site of community importance (SIC) Serra da Tronqueira/Planalto dos Graminhais (PTMIG0024), on the island of São Miguel, approved by Government Council Resolution no. 56/2010/A, of May 10, and recognized under Commission Decision no. 2013/734/EU, of November 7.
Council of Ministers Resolution no. 41/2020, of June 6: Approves the Economic and Social Stabilization Program, included in the annex to this resolution and of which it is an integral part, further determining that this resolution shall enter into force on the day following its approval.
Decree-Law no. 24-B / 2020, of June 8: Transposes Commission Directive 2018/1846 (EU), of 23 November 2018, to the internal legal order, which adapts for the fifth time to scientific progress and technical annexes to Directive 2008/68/EC, of the European Parliament and of the Council, of 24 September 2008, on the inland transport of dangerous goods, and makes the sixth amendment to Decree-Law no. 41-A/2010, of April 29, as amended by Decree-Laws no. 206-A/2012, of August 31, 19-A/2014, of February 7, 246-A/2015, of October 21, 111-A/2017, of August 31, and 41/2018, of June 11.
Council of Ministers Resolution no. 41-A / 2020, of 9 June: Approves the distribution of compensatory allowances, in the year 2020, for Transtejo – Transportes do Tejo, S.A., and Soflusa – Sociedade Fluvial de Transportes, S.A.
Council of Ministers Resolution no. 43/2020, of June 12: Authorizes the financial compensation resulting from the public service provision contract signed between the State and CP, E.P.E.
Council of Ministers Resolution no. 43-A/2020, of June 12: Extends the reinstatement, on an exceptional and temporary basis, of the control of people at the borders, within the scope of the COVID-19 pandemic.
Ordinance no. 139-A/2020, of June 12: Proceeds with the first amendment to Ordinance no. 136/2020, of June 4, which proceeds, for the year 2020, to identify coastal bathing waters and transition and inland bathing waters, setting the respective bathing seasons, and the qualification, as bathing beaches, maritime beaches and beaches of river and lake waters, in national territory, pursuant to the provisions of paragraph 6 of article 4 of Decree-Law no. 135/2009, of June 3, amended by Decree-Law no. 113/2012, of May 23, as well as the identification of beaches for limited use, under the terms of no. 2 of article 11 of Decree-Law no. 159/2012, of 24 July.
Council of Ministers Resolution no. 43-B/2020, of June 12: Extends the declaration of the calamity situation, within the scope of the COVID-19 disease pandemic.
Decree-Law no. 26/2020, of June 16: Proceeds with the second amendment 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 context of the COVID-19 disease pandemic, amended by Law no. 8/2020, of April 10.
Ordinance no. 141/2020, of June 16: Proceeds to the definition of the aspects related to the mandatory continuous training actions for the revalidation of the professional title of sports coach (TPTD), under the terms and for the purposes of the provisions of paragraphs 2 and 3 of Article 8 of Law no. 40/2012, of August 28.
Council of Ministers Resolution no. 45-A/2020, of June 16: Approves the National Plan for the Integrated Management of Rural Fires (PNGIFR), which consists of the following elements: a) the 2020 -2030 Strategy, included in Annex I to this resolution and of which it is an integral part; b) the Process Chain, included in Annex II to this resolution and of which it is an integral part.
Decree-Law no. 27/2020, of June 17: Proceeds with the third amendment to Decree-Law no. 228/2012, of October 25, amended by Decree-Laws no. 68/2014, of May 8, and 24/2015, of February 6, which approves the organization of the regional coordination and development commissions (CCDR), in order to change the form of appointment of the president and vice-presidents.
Ordinance no. 142/2020, of June 17: Establishes additional phytosanitary protection measures aimed at the eradication in the national territory of the quarantine insect «Trioza erytreae Del Guercio».
Ordinance no. 143/2020, of June 17: Establishes a partial ban on fishing activities in the elevated sea area called «Monte (Pico) Gonçalves Zarco», aiming at: a) Promoting sustainable management and exploitation of marine biological resources; b) Protecting biodiversity, vulnerable marine ecosystems and other natural values; c) Preserving the seabed from adverse impacts of fishing activity.
Ordinance no. 148-A/2020, of June 19: Establishes, for the national territory, the complementary implementing rules for support for wine distillation measures, in case of crisis, and for storage of wine in case of crisis, provided for in paragraphs 3 and 4 of Regulation (EC) No 2020/592 of the Commission, of April 30.
Ordinance no. 148-B/2020, of June 19: Establishes exceptional and temporary measures in the context of the COVID-19 disease pandemic, applicable to the small farming scheme and the redistributive payment scheme, provided for in Ordinance no. 57/2015 of February 27, which approves the Regulation implementing the basic payment schemes, payment for agricultural practices beneficial to the climate and the environment, payment for young farmers, specific payment for cotton, small farming scheme and redistributive payment scheme, abbreviated as the Regulation.
Decree-Law no. 27-A/2020, of June 19: Proceeds with the second amendment to Decree-Law no. 169-B/2019, of December 3, amended by Decree-Law no. 19-B/2020, of April 30, which approves the regime for the organization and functioning of the XXII Constitutional Government.
Decree-Law no. 27-B/2020, of June 19: Proceeds with: a) The second amendment to Decree-Law no. 10-G/2020, of March 26, amended by Decree-Law no. 14-F/2020, of April 13, establishing the extension of the extraordinary support for the maintenance of employment contracts in situations of business crisis and the respective transitional regime; b) The creation of a stabilization supplement for workers with a basic salary equal to or less than twice the minimum monthly guaranteed salary (RMMG); c) The creation of an extraordinary incentive for the normalization of business activity.
Ordinance no. 149/2020, of June 22: Defines and regulates, in execution of paragraph 6 of article 4 of Law no. 7/2020, of April 10, the terms under which the demonstration of the loss of income, for the purpose of non-suspension of the supply of water, electricity, natural gas and electronic communications, is made.
Ordinance no. 150/2020, of June 22: Proceeds to the: a) Third alteration to the Regulation of the Regimes of Re-Entry and Change of Institution/Course in Higher Education, approved by Ordinance no. 181-D/2015, of June 19, altered by Ordinances no. 305/2016, of December 6, and 249-A/2019, of August 5; b) Approval of the regulation of the candidacy to the cycles of undergraduate or integrated master’s degree studies given in public higher education institutions by holders of the double certification courses of secondary level and specialized artistic courses.
Legislative Assembly of the Autonomous Region of the Azores Resolution no. 27/2020/A, of June 22: Pronouncement of the Legislative Assembly of the Autonomous Region of the Azores on the increase of social protection in maternity, paternity and adoption for residents of the Autonomous Region of the Azores.
Council of Ministers Resolution no. 45-B/2020, of June 22: Defines special rules for the Lisbon Metropolitan Area in the context of the disaster situation declared by the Council of Ministers Resolution no. 40-A/2020, of May 29, in its current wording.
Council of Ministers Resolution no. 47/2020, of June 23: Approves the investment tax contracts to be signed between the Portuguese State and the companies Kirchhoff Automotive Portugal, S. A., HILODI – Historic Lodges & Discoveries, S. A., MAAP – MA Automotive Portugal, S. A., and DS Smith Paper Viana, S. A.
Regional Legislative Decree no. 13/2020/A, of June 23: Creates an extraordinary and temporary measure to support the elderly for the acquisition of personal protective equipment.
Ordinance no. 155-A/2020, of June 23: Establishes exceptional and temporary measures in the framework of the COVID-19 pandemic, applicable to producers’ organizations and respective associations recognized at national level.
Council of Ministers Resolution no. 49/2020, of June 24: Creates the Landscape Transformation Program.
Ordinance no. 157/2020, of June 24: Proceeds to the amendment of the Harvest Regulation, approved by Ordinance no. 1102-B/2000, of November 22, in its current wording.
Council of Ministers Resolution no. 51/2020, of June 25: Approves the strategic lines of the «Never Forget Project – National Program around Holocaust Remembrance».
Ordinance no. 158/2020, of June 25: Proceeds to the first amendment of Ordinance no. 172/2013, of May 3, which establishes the regime of verification of the availability of the power plants.
Regional Legislative Decree no. 14/2020/A, of June 25: Establishes the legal regime for the cessation of agricultural activity in the Autonomous Region of the Azores.
Regional Implementing Decree no. 14/2020/A, of June 25: Fourth amendment to the Regional Implementing Decree no. 16/2014/A, of September 17, which regulates the Subsystem of Incentives for Qualification and Innovation.
Decree-Law no. 28/2020, of June 26: Proceeds with the seventh amendment to Decree-Law no. 79/2013, of June 11, which establishes rules regarding the restriction of the use of certain hazardous substances in electrical and electronic equipment (EEE), transposing into the internal legal system several Delegated Directives (EU).
Declaration of Rectification no. 24/2020, of June 26: Amends Decree-Law no. 27/2020, of June 17, on the Modernization of the State and Public Administration, which alters the organization of the regional coordination and development commissions, published in the Official Gazette of the Portuguese Republic, 1st series, no. 116, of June 17, 2020.
Ordinance no. 159/2020, of June 26: Defines the rules governing the requisition, issue, operation and use of the access card for the area with special conditions for access and presence of supporters (ZCEAP), abbreviated to “supporter’s card”, and approves its model and characteristics, in accordance with Article 3(r) of Law 39/2009, of 30 July, which establishes the legal framework for security and combating racism, xenophobia and intolerance in sports events, as amended by Law 113/2019, of September 11.
Ordinance no. 160/2020, of June 26: Extends the duration of the exceptional measure on social security financial contributions, with a view to supporting private social solidarity institutions, social solidarity cooperatives, non-governmental organizations of disabled people in the functioning of social responses, as well as defining rules for the review of family contributions.
Decree-Law no. 28-A/2020, of June 26: Approves the legal regime of landscape reconversion through Landscape Restructuring and Management Programmes (PRGP) and Integrated Landscape Management Areas (AIGP).
Decree-Law no. 28-B/2020, of June 26: Establishes: a) The penalty system applicable to the failure to comply with the duties established by the declaration of the alert, contingency or calamity situation adopted under Law no. 27/2006, of July 3, which approves the Basic Law on Civil Protection, and Law no. 81/2009, of August 21, establishing the Public Health Surveillance System; b) The penalty system applicable to failure to comply with the duties imposed by Articles 12 and 13 of Decree-Law no. 10-A/2020, of March 13, which forms an integral part of Law no. 1-A/2020, of March 19, pursuant to Article 2 of said law, as well as the duties imposed by Articles 13-A and 13-B of the same decree-law.
Council of Ministers Resolution no. 51-A/2020, of June 26: Declares, following the epidemiological situation of COVID-19, until 11:59 pm of July 14, 2020: a) The calamity situation in several parishes; b) The contingency situation in the Lisbon Metropolitan Area, with the exception of the municipalities and parishes covered by The calamity situation; c) The alert situation throughout the continental national territory, with the exception of the Lisbon Metropolitan Area.
Decree-Law no. 29/2020, of June 29: Creates a support programme for simple rural reparcelling, called “Emparcelar para Ordenar”, which aims to promote simple rural reparcelling in order to increase the physical and economic dimension of rustic buildings.
Decree-Law no. 30/2020, of June 29: Establishes the rules to which the information procedure for technical rules on products and rules on information society services are subject to, transposing into Portuguese law the Directive (EU) No 2015/1535 of the European Parliament and of the Council of 9 September 2015, relating to a procedure for the provision of information in the field of technical regulations and of rules on information society services.
Decree-Law no. 30-A/2020, of June 29: Proceeds to extend the validity of Decree-Law no. 16/2020 of April 15, establishing exceptional and temporary rules for the practice of acts by means of distance communication, in the context of the pandemic of the disease COVID-19.
Assembly of the Republic Resolution no. 33/2020, of June 30: Approves the first supplementary budget for the year 2020, annexed to this resolution.
Decree-Law no. 31/2020, of June 30: Establishes the compulsory declaration of felling, extraordinary felling, thinning or grubbing of trees of forest species, hereinafter referred to as tree cutting manifest (MCA), in mainland Portugal, intended for marketing and self-consumption for industrial processing, as well as the traceability of wood material intended for the primary processing industry and for exportation.
Ordinance no. 161/2020, of June 30: Updates the value of the reference unit in the table attached to Ordinance no. 1386/2004, of November 10, in its current wording.
Ordinance no. 162/2020, of June 30: Proceeds with the first amendment to Ordinance no. 82-C/2020, of March 31, which created the measure of Support for the Strengthening of Emergency Social and Health Equipment, of temporary and extraordinary nature, to ensure the response capacity of public institutions and the solidarity sector with activities in the social and health area, during the COVID-19 disease pandemic, and which also created an extraordinary regime of an increase in the monthly scholarships of the “Employment-insertion contract” (CEI) and “Employment-insertion contract+” (CEI+) applicable to projects carried out in the areas foreseen therein.
III.1. Court of Justice of the European Union
Judgement of the Justice Court of June 4, Case C-41/19: Reference for a preliminary ruling. Jurisdiction, recognition and enforcement of decisions in matters relating to maintenance obligations. Regulation (EC) No 4/2009. Article 41(1). Judicial cooperation in civil matters. Regulation (EU) No 1215/2012. Article 24(5). Maintenance order declared enforceable. Application opposing enforcement. Jurisdiction of the court of the Member State of enforcement.
Judgement of the Justice Court of June 11, Case C-74/19: Reference for a preliminary ruling. Air transport. Regulation (EC) No 261/2004. Article 5(3). Article 7(1). Compensation to passengers in the event of denied boarding and of cancellation or long delay of flights. Exemption. Concept of ‘extraordinary circumstances’. Unruly passengers. Possibility of relying on the occurrence of an extraordinary circumstance in respect of a flight not affected by that circumstance. Concept of ‘reasonable measures’.
Judgement of the Justice Court of June 11, Case C-43/19: Reference for a preliminary ruling. Value added tax (VAT). Directive 2006/112/EC. Article 2(1)(c). Scope. Taxable transactions. Services supplied for consideration. Monies paid where customers fail to comply with the contractual tie-in period. Characterisation.
Judgement of the Justice Court of June 18, Case C-276/18: Reference for a preliminary ruling. Common system of value added tax (VAT). Directive 2006/112/EC. Article 33. Determination of the place where taxable transactions are carried out. Supply of goods with transport. Supply of goods dispatched or transported by or on behalf of the supplier. Regulation (EU) No 904/2010. Articles 7, 13 and 28 to 30. Cooperation between the Member States. Exchange of information.
III.2 Constitutional Court
III.3. Courts of Justice
Judgement of the Évora Court of Appeal, of June 4, Case no. 969/18.4T8STR.E1: Banks. Banking institution. Duty to inform. Contractual civil liability. Guilt. Causal link. Obligation to compensate. Obligation to inform.
Judgement of the Guimarães Court of Appeal, of June 4, Case no. 2848/19.3T8VNF-A.G1: Executive action. Merchant. Management. Common income of the couple.
Judgement of the Lisbon Court of Appeal, of June 18, Case no. 5602/17.3T8OER-A.L1-2: Execution. Banking secrecy.
Judgement of the Lisbon Court of Appeal, of June 18, Case no. 13412/15.6T8LSB.L2-8: Tenant. Sale of the leased. Right of preference. Horizontal property.
III.4. Administrative and Tax Court
Judgement of the Supreme Administrative Court, of June 3, Case no. 0688/11.7BECBR 0330/18: Tax loss. Deduction of the tax loss. Community law.
Judgement of the Supreme Administrative Court, of June 3, Case no. 0365/18.8BEVIS: Personal Income Tax. The start of the limitation period. Suspension of the time period. Criminal investigation.
Judgement of the Supreme Administrative Court, of June 3, Case no. 018/10.5BELRS 095/18: Corporate Income Tax. Taxation. Dividends. Non-resident taxable person. Free movement of capital. Convention to avoid double taxation. Default interest.
Judgement of the Central Administrative South Court, of June 4, Case no. 1029/07.3BESNT: Corporate Income Tax. Costs. Fiscal consolidation.
IV.1.1. Monographs and Periodic Publications
Alexandre de Soveral Martins, Administração de Sociedades Anónimas e Responsabilidade dos Administradores, Almedina, junho 2020.
João Ricardo Catarino, Nuno Victorino, Direito Sancionatório Tributário, Almedina, junho 2020.
Edgar Valles, Arrendamento Urbano, 2.ª Edição, Almedina, junho 2020.
Salvador da Costa, A Injunção e as Conexas Ação e Execução, 7.ª Edição, Almedina, junho 2020.
Pedro Ferreira de Sousa, O Procedimento Disciplinar Laboral, 4.ª Edição, Almedina, junho 2020.
António Santos Abrantes Geraldes, Paulo Pimenta, Luís Filipe Pires de Sousa, Código de Processo Civil Anotado – Vol. II, Almedina, junho 2020.
Catarina Monteiro Pires, Rui Pereira Dias, Manual de Arbitragem Internacional Lusófona – Volume I, Almedina, junho 2020.
Maria João Antunes, Inês Horta Pinto, Código de Execução das Penas e das Medidas Privativas da Liberdade – Anotado, 2.ª Edição, Almedina, junho 2020.
Carlos Ferreira de Almeida, Contratos V, 2.ª Edição, Almedina, junho 2020.
Ireneu Cabral Barreto, Convenção Europeia dos Direitos do Homem – Anotada, 6.ª Edição Revista e Atualizada, Almedina, junho 2020.
Pedro Romano Martinez, Leonor Cunha Torres, Arnaldo da Costa Oliveira, Maria Eduarda Ribeiro, José Pereira Morgado, José Vasques, José Alves de Brito, Lei do Contrato de Seguro – Anotada, 4.ª Edição, Almedina, junho 2020.
IV.1.2. Generic Guidelines & Cia
Circulate letter no. 20224, of 05.06.2020, of Deputy General Director of Corporate Income Tax Services
Subject: Corporate Income Tax. Municipal surtax rates concerning the taxable profit of the 2019 tax period.
Circulate letter no. 35.130, of 18.06.2020, of Deputy General Director of Excise Duty Area – EDA
Subject: Rules concerning the taxation exempt alcohol – Article 67 no. 3 of the Excise Duty Code.
Circulate letter no. 15776/2020, of 22.06.2020, of Deputy General Director of Customs Management Area
Subject: Exchange rates in establishing the customs value.
Circulate letter no. 15777, of 24.06.2020, of Service Management of the Customs Tax
Subject: The Registered Exporter system “REX” application in EU in the framework of the Agreement with Vietnam.
IV.2.1. Economy, Finance and Taxation
The Council of Ministers has approved, on June 18, the law proposal, to be submitted to the National Assembly, amending the Administrative Courts Procedural Code, with the aim of forward the more efficient public procurement and to ease the burden on the law courts, namely at the pre-contractual stage, promoting the reduction of the number of pre-contract procedures suspended by the award decision appeal.
On June 25, it was approved the law proposal amending several tax rules in the area of the tax justice, in order to strengthen the taxpayers guarantees, the simplification of the tax system and the reduction of the litigation. This includes establishing the conciliation mechanisms between the Tax Authority and the taxpayers in the end of the inspection stage; the reformulation of the system of exemption and reduction of fines provisions; and strengthening the taxpayers right of defense claiming for the binding information.
V. INDUSTRIAL PROPERTY
The World Anti-Counterfeiting Day was celebrated on June 5, with the aim of making society aware of the phenomenon of counterfeiting, piracy and the economic damage caused by this type of offence.
To mark the date, the INPI and the Spanish Patent and Trademark Office (OEPM) carried out a video on the role of the two entities in terms of Industrial Property (IP), alerting them to the growing importance of valuing IP, as well as to the harmful effects of counterfeiting on the economy and consumer health. In addition, the INPI prepared an article on “Counterfeiting. One of the scourges of the 21st century”, available for consultation on the INPI website.
According to INPI, the evolution of IP applications in the context of COVID-19 has been gradually positive, with an increase in all IP modalities after the falls recorded at the beginning of the year. Thus, according to provisional data for the month of May, all IP modalities appear to be growing, reversing the negative trend of recent months, with special emphasis on brands, which recorded a considerable increase in the number of applications submitted compared to previous months, as well as design, which again had an increase in the number of objects submitted.
In the context of World Anti-Counterfeiting Day, EUIPO/Europol published a new report on IP crime and its links to other serious crimes, including the linkage between IP crime and Organised Crime Gangs (OCG) activities, demonstrating that counterfeit products represent an attack against society that requires an international response.
The European Union Intellectual Property Office (EUIPO) has published a new report on the state of Intellectual Property Rights (IPR) infringement, revealing that the damage caused by counterfeiting deprives governments of revenue and can support serious crimes such as drug trafficking and money laundering.
According to the ‘Withdrawal Agreement’ between the EU and the United Kingdom (UK), the UK withdrew from the EU on 1 February 2020. However, the Withdrawal Agreement stipulates that during the transitional period, which will last until 31 December 2020, EU legislation will continue to apply in the UK, and this extension will also apply to legislation and regulatory instruments relating to EU Trademarks and Community Designs.
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS
- V. INDUSTRIAL PROPERTY