e-elegal® march 2020

Conrado Andradee-legal, e-legal19

I. EDITORIAL – COVID 19 – TEMPORARY EXCEPTIONAL MEASURES – 2020 STATE BUDGET

The month of March was marked at the legislative level, by the Declaration of the State of Emergency on March 18, through the Decree of the President of the Republic no. 14-A/2020, based on the verification of a situation of public calamity, namely the urgency of public health caused by the proliferation of contagion with the disease COVID-19, classified by the World Health Organization as a pandemic. In this context, in order to contain the pandemic and mitigate the impact of the disease, a set of extraordinary and temporary measures were adopted in several areas, such as commercial, corporate, tax, real estate, finance, labour and litigation areas. The summary of these measures can be consulted at the following link: https://mgra.pt/covid19/.

Also, in March, it stands out the publication of Law 2/2020 of March 31, which approved the State Budget for the year 2020.

II. LEGISLATION

Decree-Law no. 7/2020, of March 3: Reviews the model of provision of slot allocation services and facilitated schedules at national airports.

https://dre.pt/application/conteudo/129793718

Ordinance no. 54/2020, of March 3: Approves the model of professional identification card and laissez-passer of entities accredited by the National Emergency and Civil Protection Authority (ANEPC), for issuing opinions, conducting surveys and inspections.

https://dre.pt/application/conteudo/129793720

Ordinance no. 57/2020, of March 4: Sets the “health and food safety plus rate” for the year 2020.

https://dre.pt/application/conteudo/129790950

Ordinance no. 60/2020, of March 5: Amends the Ordinance no.  293-A/2016, of 18 November, which establishes the conditions and procedures for the application of the provisions of Article 10, paragraph 2 of the special regime applicable to deferred tax assets.

https://dre.pt/application/conteudo/129892689

Ordinance no. 61/2020, of March 5: Amends the Regulation on the Crop Insurance and Compensation for Accidents, approved in annex to Ordinance no. 65/2014, of March 12, amended by Ordinances no. 132/2017, of April 10, and 109/2018, of April 23.

https://dre.pt/application/conteudo/129892690

Decree-Law no. 8/2020, of March 9: Establishes the technical specifications for the marking of firearms and their essential components, as well as for alarm, starter, gas and signaling weapons, transposing the Implementation Directives (EU) 2019/68 and 2019/69.

https://dre.pt/application/conteudo/130008906

Regional Legislative Decree no. 7/2020/A, of March 9: Amends the Budget of the Autonomous Region of the Azores for the year 2020.

https://dre.pt/application/conteudo/130008908

Decree-Law no. 9/2020, of March 10: Adopts the necessary measures to comply with the obligation to maintain the electronic complaints book.

https://dre.pt/application/conteudo/130070740

Ordinance no. 64/2020, of March 10: It defines the terms and conditions of implementation of the pilot projects provided for in the Informal Caregiver Statute, approved in annex to Law no. 100/2019, of September 6, as well as the territories to be covered.

https://dre.pt/application/conteudo/130070741

Decree-Law no. 10/2020, of March 11: Establishes the organizational structure of the Single Point of Contact for International Police Cooperation.

https://dre.pt/application/conteudo/130114092

Decree-Law no. 10-A/2020, of March 13: Establishes exceptional and temporary measures concerning the epidemiological situation of the new Coronavirus (SARS-CoV-2).

https://dre.pt/application/conteudo/130243053

Ordinance no. 71/2020, of March 15: Restrictions on access to and use of space in shops and restaurants or drinking establishments.

https://dre.pt/application/conteudo/130243072

Ordinance no. 71-A/2020, of March 15: Defines and regulates the terms and conditions for granting immediate extraordinary, temporary and transitional support to workers and employers affected by the outbreak of the COVID-19 virus, in order to maintain jobs and mitigate corporate crisis situations.

https://dre.pt/application/conteudo/130273586

Regulatory Decree no. 1/2020, of March 16: Classifies as special areas of conservation (SAC) the sites of Community importance (SCI) in the national territory.

https://dre.pt/application/conteudo/130273578

Ordinance no. 73/2020, of March 16: Non-exhaustive requirements for connecting the generator modules to the Public Service Electric Network.

https://dre.pt/application/conteudo/130273580

Ordinance no. 76-B/2020, of March 18: Amendment to Ordinance no. 71-A/2020, which defines and regulates the terms and conditions for granting immediate support of an extraordinary, temporary and transitory nature, intended for workers and employers affected by the outbreak of the VOCID-19 virus, in order to maintain jobs and mitigate corporate crisis situations.

https://dre.pt/application/conteudo/130399779

Decree of the President of the Republic no. 14-A/2020, of March 18: Declares the state of emergency based on the occurrence of a public calamity.

https://dre.pt/application/conteudo/130399862

Law no. 1-A/2020, of March 19: Ratifies the effects of Decree-Law no 10-A/2020 of 13 March and approval of exceptional and temporary measures in response to the epidemiological situation caused by the coronavirus SARS-CoV-2, the causative agent of the disease COVID-19.

https://dre.pt/application/conteudo/130473088

Ordinance no. 78/2020, of March 20: Approves the instructions for filling in the model 30 declaration, approved by Ordinance no. 372/2013, of December 27.

https://dre.pt/application/conteudo/130469187

Decree no. 2-A/2020, of March 20: Executes the declaration of the state of emergency made by the Decree of the President of the Republic No. 14-A/2020 of March 18.

https://dre.pt/application/conteudo/130473161

Order no. 3547-A/2020, of March 22: Regulates the declaration of a state of emergency, ensuring the functioning of supply chains of goods and essential public services and the conditions under which they must operate.

https://dre.pt/application/conteudo/130546178

Decree-Law no. 10-C/2020, of March 23: Establishes exceptional and temporary measures in response to the epidemic of COVID-19 disease in the framework of periodic technical inspections.

https://dre.pt/application/conteudo/130602978

Decree-Law no. 10-D/2020, of March 23: Establishes exceptional and temporary measures in response to the epidemic of COVID-19 disease related to the electronic communications sector.

https://dre.pt/application/conteudo/130602979

Ordinance no. 79/2020, of March 24: First amendment to Ordinance no. 77-C/2014 of 1 April, establishing the airports and aerodromes where the security fee is due.

https://dre.pt/application/conteudo/130600799

Decree-Law no. 10-E/2020, of March 24: Creates an exceptional system of expenditure authorization for the response to the COVID-19 disease pandemic and makes the first amendment to Decree-Law no. 10-A/2020 of March 13.

https://dre.pt/application/conteudo/130603009

Ordinance no. 80/2020, of March 25: It sets the reference tariff and its duration applicable to producers of electricity from renewable energy sources, as well as the maximum annual quota for guaranteed remuneration.

https://dre.pt/application/conteudo/130659001

Ordinance no. 80-A/2020, of March 25: Regulates the regime for the provision of essential vehicle inspection services.

https://dre.pt/application/conteudo/130603048

Ordinance no. 81/2020, of March 26: Establishes a set of measures concerning the epidemiological situation of the new Coronavirus – COVID 19, in the framework of the Rural Development Program 2014-2020.

https://dre.pt/application/conteudo/130603065

Decree-Law no. 10-F/2020, of March 26: Establishes an exceptional and temporary regime for fulfilling fiscal obligations and social contributions in the context of the COVID-19 disease pandemic.

https://dre.pt/application/conteudo/130779505

Decree-Law no. 10-G/2020, of March 26: Establishes exceptional and temporary measures, defining and regulating the terms and conditions for granting support to workers and companies affected by the COVID-19 pandemic, in order to maintain jobs and mitigate corporate crisis situations.

https://dre.pt/application/conteudo/130779506

Decree-Law no. 10-H/2020, of March 26: Establishes exceptional and temporary measures to foster the acceptance of card-based payments in the context of the COVID-19 pandemic.

https://dre.pt/application/conteudo/130779507

Decree-Law no. 10-I/2020, of March 26: Establishes exceptional and temporary measures in response to the COVID-19 disease pandemic in the cultural and artistic field, in particular regarding unrealized shows.

https://dre.pt/application/conteudo/130779508

Decree-Law no. 10-J/2020, of March 26: Establishes exceptional measures to protect the credits of families, companies, private welfare institutions and other social economy entities, as well as a special regime of personal guarantees from the State, in the scope of the COVID-19 disease pandemic.

https://dre.pt/application/conteudo/130779509

Decree-Law no. 10-K/2020, of March 26: Establishes an exceptional and temporary regime of justified absences motivated by family care in the context of the COVID-19 pandemic.

https://dre.pt/application/conteudo/130779510

Decree-Law no. 10-L/2020, of March 26: Amends the general rules for implementing the European Structural and Investment Funds to allow for the anticipation of payment requests.

https://dre.pt/application/conteudo/130779511

Order no. 3863-B/2020, of March 27: Determines that the management of attendance and appointments shall be made in such a way as to unequivocally guarantee the rights of all foreign citizens with cases pending at the Foreigners and Borders Service under COVID 19.

https://dre.pt/application/conteudo/130835082

Law no. 2/2020, of March 31: Approves the State Budget for 2020.

https://dre.pt/application/conteudo/130893436

Law no. 3/2020, of March 31: Approves the Major Planning Options («Grandes Opções do Plano») for 2020-2023 which include the policy measures and the investments to implement them.

https://dre.pt/application/conteudo/130893437

Law no. 4/2020, of March 31: Approves the multiannual budgetary programming framework for the period 2020 to 2023.

https://dre.pt/application/conteudo/130893438

III. CASE-LAW

III.1. Court of Justice of the European Union

Judgement of the Justice Court of March 3, C-75/18:  Reference for a preliminary ruling. Freedom of establishment. Tax on the turnover of telecommunications operators. Progressive tax having a greater impact on undertakings owned by natural or legal persons of other Member States than on national undertakings. Progressive tax bands applicable to all taxable persons. Neutrality of the amount of turnover as a criterion of differentiation. Ability to pay of taxable persons. State aid. Common system of value added tax (VAT). Turnover taxes. Meaning.

Summary:

“Articles 49 and 54 TFEU must be interpreted as not precluding the legislation of a Member State that establishes a progressive tax on turnover, the actual burden of which is mainly borne by undertakings controlled directly or indirectly by nationals of other Member States or by companies that have their registered office in another Member State, due to the fact that those undertakings achieve the highest turnover in the market concerned.

Article 401 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as not precluding the introduction of a tax which is based on the overall turnover of the taxable person and which is levied periodically, and not at each stage of the production and distribution process, there being no right to deduct tax paid at an earlier stage of that process.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0075

Judgement of the Justice Court of March 3, Case C-482/18: Reference for a preliminary ruling. Freedom to provide services. Article 56 TFEU. Restrictions. Tax provisions. Tax on advertising activities based on turnover. Obligations relating to registration with a tax authority. Principle of non-discrimination. Fines. Principle of proportionality.

Summary:

Article 56 TFEU must be interpreted as not precluding legislation of a Member State which imposes an obligation to submit a tax declaration on suppliers of advertising services established in another Member State for the purposes of their liability to a tax on advertising, whereas suppliers of such services established in the Member State where the tax is levied are exempt from that obligation on the ground that they are subject to obligations to submit a tax declaration or to register on the basis of liability to all other taxes applicable in that Member State.

Article 56 TFEU must be interpreted as precluding legislation of a Member State which fines suppliers of services established in another Member State for non-compliance with the obligation to submit a tax declaration for the purposes of their liability to a tax on advertising in a series of fines issued within several days, the amount of which, from the second day, is tripled in relation to the amount of the previous fine if it is still found that that obligation has not been complied with, leading to a total amount of several million euros, without the competent authority giving those suppliers of services the time necessary to comply with their obligations or the opportunity to submit their observations, or having itself examined the seriousness of the infringement, before adopting the final decision fixing the total amount of those fines, whereas the amount of the fine which suppliers of services established in the Member State where the tax is levied who fail to comply with a similar obligation to submit a tax declaration or to register contrary to the general provisions of national tax legislation is significantly less and is not increased, in the event of continued failure to comply with such an obligation, in the same proportions, nor necessarily within such a short period of time.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0482

Judgement of the Court of Justice of March 5, Case C679/18: Reference for a preliminary ruling. Consumer protection. Directive 2008/48/EC. Credit agreements for consumers. Article 8. Creditor’s obligation to assess the consumer’s creditworthiness. National rules. Whether limitation may be invoked against the objection of nullity of the agreement raised by the consumer. Article 23. Penalties. Effective, proportionate and dissuasive nature. National court. Examination by the court of its own motion as to whether that obligation has been complied with.

Summary:

Articles 8 and 23 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC must be interpreted as imposing an obligation on a national court to examine, of its own motion, whether there has been a failure to comply with the creditor’s pre-contractual obligation to assess the consumer’s creditworthiness, provided for in Article 8 of that directive, and to draw the consequences arising under national law of a failure to comply with that obligation, on condition that they satisfy the requirements of Article 23. Articles 8 and 23 of Directive 2008/48 must also be interpreted as precluding national rules under which a failure by the creditor to comply with its pre-contractual obligation to assess the consumer’s creditworthiness is penalised by the nullity of the credit agreement, linked with an obligation on the consumer to return the principal sum to the creditor at a time appropriate to the consumer’s financial capacity, solely on condition that that consumer raises an objection of such nullity within a three-year limitation period.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0679

III.2 Constitutional Court

Judgement of the Constitutional Court no. 182/2020, Case no. 868/2018:

The Court decided to not judge as unconstitutional the interpretation of paragraphs no. 1 and no. 2 of Article 9 of Civil Code, according with which  the tax rule contained in paragraph no. 2 of Article 90 of Corporate Income Tax Code (“IRC”), as worded by Law no. 3-B/2010 on Corporate Income Tax (“IRC”) deductions, may be the subject of a corrective interpretation for the purposes of determining the quantum of the tax due, in the part resulting from the application of the autonomous tax rates provided for in Article 88 of the above-mentioned Code;”.

https://www.tribunalconstitucional.pt/tc/acordaos/20200182.html

III.3. Courts of Justice

Judgement of the Lisbon Court of Appeal of March 3, Case no. 328/18.3T8FNC-E.L1-1: Insolvency. Impugnation of claims. Interested party. Insolvency administrator.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/3a5e64155b6282048025852800317650?OpenDocument

Judgement of the Lisbon Court of Appeal of March 5, Case no. 10071/13.4T2SNT.L2.L1-8: Bank. Pension. Retirement supplement. Remuneration. Beneficiaries.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/3d2bfced6c8f084f802585280032368b?OpenDocument

Judgement of the Lisbon Court of Appeal of March 5, Case no. 11399/16.7T8LSB.L1.L1-6: Lawyer. Liability. Insurance contract. Loss of chance.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/790ac71002e3d2da8025852800418ebd?OpenDocument

III.4. Administrative and Tax Court

Judgement of the Supreme Administrative Court of March 4, Case no. 01555/11.0BEPRT: Corporate Income Tax (“IRC”). Simplified tax regime. Inactivity. Inexistence of Taxable transaction .

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/51f3ab0b8b9fc1ac80258526005a957e?OpenDocument

Judgement of the Supreme Administrative Court of March 4, Case no. 0410/14.6BELRA: Tax benefits. Contract termination. Credits due after the declaration of insolvency.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/26e0a53d21ee89af802585260044f50e?OpenDocument

IV. BRIEFS
IV.1. DOCTRINE
IV.1.1.  Monographs and Periodic Publications

IV.1.2. Generic Guidelines & Cia

Doctrinal letter no. 2020000200, of 08.03.2020, of General Director of Tax and Customs Authority

Subject: The legal framework of the Municipal Tax on Onerous Transfers of Real Estates T (“IMT”) and Stamp Duty (“IS”) to be conferred on an operation of  contribution in kind of real estate assets to the judicial sphere of a Real Estate Investment Fund (“FII”), in exchange for participation units.

http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/informacoes_vinculativas/patrimonio/cimt/Documents/IVE_17146.pdf

Order no. 104/2020-XXII, of 09.03.2020, of Secretary of State Tax Affairs

http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/Despachos_SEAF/Documents/Despacho_SEAF_104_2020.pdf

Circulate letter no. 35.124, of 12.03.2020, of Deputy General Director of Excise Duty Area (“IEC”)

Subject: The inspection system of tobacco manufacturing tax warehouse (“IESCP”).

http://info-aduaneiro.portaldasfinancas.gov.pt/pt/legislacao_aduaneira/oficios_circulados_doclib/Documents/Oficio_Circulado_35124_2020.pdf

Doctrinal letter no. 2020000359, of 12.03.2020, of Director of Property Tax Department (“DIMI”)

Subject: Suspension of tax. Construction. Consolidation of construction land. Regime application.

http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/informacoes_vinculativas/patrimonio/cimi/Documents/IVE_16999.pdf

Order no. 121/2020-XXII, of 24.03.2020, of Secretary of State Tax Affairs

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/Despachos_SEAF/Documents/Despacho_SEAF_121_2020_XXII.pdf

Circulate letter no. 20220, of 26.03.2020, of Deputy General Director of Income Tax and International Affairs

Subject: Personal Income Tax declaration “Modelo 3” in force from January of 2020.

http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_circulado_20219_2020.pdf

Order no. 129/2020-XXII, of 27.03.2020, of Secretary of State Tax Affairs

http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/Despachos_SEAF/Documents/Despacho_SEAF_129_2020_XXII.pdf

IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation

On March 26, the Council of Ministers has approved several law proposals with extraordinary measures to tackle the COVID-19 epidemiological situation, amongst which the following should be highlighted:

  1. the Decree-law which establishes extraordinary measures of support and protection of families. Since the financial system has a special duty to participate in this joint effort due to its essential function of financing the economy, a 6-month moratorium is adopted until 30 September 2020, which provides for a ban of the repeal of the contracted credit lines, the extension or suspension of credits until the end of this period, in order to ensure the continuity of financing to families and companies and to prevent possible defaults  .
  2. the Law proposal, to be submitted to the National Assembly, which creates an exceptional and temporary regime of late payment in the payment of rents – housing and non-housing – and entitles the Institute of Housing and Urban Rehabilitation (“IHRU”) to grant loans to pay the rent to tenants who have suffered shortfall in income.
  3. the Decree-law amending the general rules for the application of the European Structural and Investment Funds in order to allow the anticipation of the payment applications, regarding the balances.

https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=336

V. INDUSTRIAL PROPERTY

The European Union Intellectual Property Office (EUIPO) has developed the “IP Enforcement Portal” to enable right holders to protect their products against counterfeiting by sharing information about their products, IP rights and contact details with EU enforcement authorities. Additionally, for customs to be able to take action and detain goods suspected of infringing IPR, the person shall file a customs application for action, electronically, through the “IP Enforcement Portal”.

https://inpi.justica.gov.pt/en-gb/INPI-News/Defend-your-rights-against-infringements

Patent applications originating in Portugal at the European Patent Office (EPO) increased by 23.1% in 2019, the second consecutive year of sharp growth (with a 47.3% increase in 2018), after a decrease in patent applications in 2017 (-4.5%), according to the 2019 Patent Index published on March 12. In the last decade, patent applications originating in Portugal at the EPO more than tripled (+236%), and in total the EPO received more than 181,000 patent applications in 2019, representing an increase of 4% compared to 2018 and a new record.

https://inpi.justica.gov.pt/en-gb/INPI-News/Digital-Technologies-take-top-spot-in-European-patent-applications

In this extraordinary period related to the Covid-19 outbreak, in order to expedite many of the procedures related to Industrial Property Rights, the INPI (Portuguese Institute of Industrial Property – «Instituto Nacional de Propriedade Industrial») suspended the mandatory digital signature in 25 patent acts, 34 acts of trademarks and designs practiced in this area. On the other hand, and following the announcement, a list of the acts that still require a digital signature was also published.

https://inpi.justica.gov.pt/Noticias-do-INPI/Atos-de-PI-e-a-obrigatoriedade-da-assinatura-digital

Portuguese private applicants will continue to benefit from the 90 per cent reduction in various fees associated with the international patent application under the PCT, given that Portugal continues to meet the eligibility criteria of the list of beneficiary countries, remaining in it.

https://inpi.justica.gov.pt/Noticias-do-INPI/Reducao-de-taxas-do-pedido-internacional-de-patente-PCT-1

 

 

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