e-legal® may 2020

Conrado Andradee-legal, e-legal19

pormenor de arquitectura

I. EDITORIAL – CALAMITY SITUATION

The month of May was defined, at the legislative level, by the approval and publication of Decree-Law no. 22/2020 of May 16, which amended the exceptional and temporary measures related to the COVID-19 pandemic.

On the other hand, reference should be made to the Council of Ministers Resolution no. 38/2020 of May 17, which extended, in accordance with the timetable for progressive withdrawal of confinement, the declaration of the situation of calamity.

Concerning case-law, it is worth noting the Judgment of the Court of Justice of May 14, Case C-749/18, which defined, in relation to tax legislation and taxes on parent companies and subsidiaries, the interpretation to be given to Articles 49 and 54 of the Treaty on the Functioning of the European Union (TFEU).

Also noteworthy, in case-law, is the ruling of the Constitutional Court no. 258/2020 of May 5, Case no. 1139/2019, which declared unconstitutional, with general binding force, the rule contained in Article 222.º-G(4) of the Insolvency and Corporate Recovery Code (CIRE), when interpreted as meaning that the opinion of the provisional trustee concluding the situation of insolvency is equivalent, under the rule of Article 28 of the CIRE, to the submission to insolvency by the debtor, when he disagrees with his situation of insolvency, for violation of Article 20, paragraphs 1 and 4, in conjunction with Article 18, paragraph 2, of the Constitution of the Portuguese Republic.

Finally, in Miscellaneous, we would like to highlight the approval by the Council of Ministers, on May 12, of a Decree-Law, the later published Decree-Law no. 20-G/2020, of May 14, which establishes a system of incentives for safety in micro, small and medium-sized enterprises, designated the ADAPTAR Programme, and which will enable the reduction of the increased costs for the rapid re-establishment of their operating conditions.

II. LEGISLATION

Decree-Law no. 20/2020, of May 1: Proceeds to the seventh amendment of Decree-Law no. 10-A/2020, of March 13, ratified by Law no. 1-A/2020, of March 19, and amended by the Decree-Law no. 10-E/2020, of March 24 and no. 12-A/2020, of April 6, by Law no. 4-A/2020, of April 6 and no. 5/2020, of April 10, and the Decree-Law no. 14-F/2020, of April 13, and no. 18/2020, of April 23, which establishes exceptional and temporary measures regarding the epidemiological situation of the new Coronavirus – COVID 19.

https://dre.pt/application/conteudo/132883356

Ordinance no. 106/2020, of May 2: Establishes for air transport a maximum limit of passengers, as well as the exceptions to this limit and its requirements, in order to ensure the convenient distance between passengers and their safety, both on scheduled flights and on flights excepted from the general rule on capacity.

https://dre.pt/application/conteudo/132936740

Ordinance no. 107/2020, of May 4: Proceeds with the first amendment to Ordinance no. 86/2020, of April 4, which establishes a set of exceptional and temporary measures relating to the epidemiological situation of COVID-19 disease, within the scope of operation 10.2.1.4, “Short chains and local markets”, of action no. 10.2, “Implementation of strategies”, integrated in measure no. 10, “LEADER”, of area no. 4, “Local development”, of the Rural Development Programme for the mainland.

https://dre.pt/application/conteudo/132965079

Ordinance no. 107-A/2020, of May 4: Establishes the maximum capacity in taxi and vehicle transportation from an electronic platform, as part of the exceptional and temporary measures relating to the COVID-19 pandemic.

https://dre.pt/application/conteudo/133054734

Declaration of Rectification no. 18-C/2020, of May 5: Rectifies Decree-Law no. 20/2020 of May 1, of the Presidency of the Council of Ministers, amending the exceptional and temporary measures relating to the COVID-19 disease pandemic, published in the Official Gazette of the Portuguese Republic, 1st series, no. 85-A, of May 1, 2020.

https://dre.pt/application/conteudo/133064189

Decree-Law no. 20-A/2020, of May 6: Proceeds with the eighth amendment to Decree-Law no. 10-A/2020 of March 13, as amended by Decree-Laws no. 10-E/2020 of March 24 and 12-A/2020 of April 6, Laws no. 4-A/2020 of April 6 and 5/2020 of April 10, and Decree-Laws no. 14-F/2020, of April 13, 18/2020, of April 23, and 20/2020, of May 1, which establishes exceptional and temporary measures regarding the epidemiological situation of the new coronavirus – COVID-19, establishing an exceptional and temporary regime for the acquisition of space for institutional publicity to the media, in the scope of the pandemic of the disease COVID-19.

https://dre.pt/application/conteudo/133161452

Decree-Law no. 20-B/2020, of May 6: Establishes an exceptional and temporary scheme, by way of wage compensation, for those fishing professionals who are prevented from exercising their activity due to the forced stoppages resulting from the COVID-19 disease pandemic.

https://dre.pt/application/conteudo/133161453

Law no. 11/2020, of May 7: Establishes: a) An exceptional and transitory regime for the execution of debt regularization agreements, regulated by Decree-Law no. 5/2019, of January 14, amended by Law no. 2/2020, of March 31; b) The procedures necessary for the regularization of the debts of local authorities, municipal services, intermunicipal services and municipal and intermunicipal companies in the water and wastewater sector.

https://dre.pt/application/conteudo/133250479

Law no. 12/2020, of May 7: Adopts new measures under the exceptional regime established by Laws 4-B/2020 of April 6 and 6/2020 of April 10, with a view to promote and guarantee the response capacity of local authorities in the context of the COVID-19 pandemic.

https://dre.pt/application/conteudo/133250480

Law no. 13/2020, of May 7: a) Establishes, with temporary effects, an exemption from value added tax (VAT) for intra-community transfers and acquisitions of goods necessary to combat the effects of the outbreak of COVID-19 by the State and other public bodies or non-profit organizations; b) Determines, with temporary effects, the application of the reduced rate of VAT to imports, transfers and intra-community acquisitions of masks for respiratory protection and skin disinfectant gel; c) Introduces the first amendment to Law no. 2/2020, of March 31, State Budget for 2020.

https://dre.pt/application/conteudo/133250481

Decree-Law no. 20-C/2020, of May 7: Proceeds, under the scope of the COVID-19 disease pandemic, to: a) The adoption of temporary measures to reinforce unemployment protection; b) The creation of a special scheme for access to social insertion income; c) The ninth amendment to Decree-Law no. 10-A/2020, of March 13, as amended by Decree-Laws no. 10-E/2020 of 24 March and 12-A/2020 of April 6, Laws no. 4-A/2020 of April 6 and 5/2020 of April 10 and Decree-Laws no. 14-F/2020 of April 14, 18/2020 of April 23, 20/2020 of May 1 and 20-A/2020 of May 6; d) The first amendment to Decree-Law no. 10-F/2020 of March 26.

https://dre.pt/application/conteudo/133321093

Law no. 14/2020, of May 9: Proceeds with the third amendment to Law no. 1-A/2020, of March 19, as amended by Laws no. 4-A/2020 and 4-B/2020, both of April 6, which approves exceptional and temporary measures in response to the epidemiological situation caused by the SARS-CoV-2 coronavirus and COVID-19 disease.

https://dre.pt/application/conteudo/133459190

Ordinance no. 112/2020, of May 9: Approves, for 2020, and as an annex to this Ordinance, forming an integral part thereof, the Regulation on the Support Scheme for the Temporary Cessation of Fishing Activities of Multipurpose Vessels, under the European Union priority established in Article 6(1) of Regulation (EU) No 508/2014 of the European Parliament and of the Council, of May 15, 2014, on the European Maritime Affairs and Fisheries Fund (EMFF), and with a framework to the extent provided for in Article 33(1)(d) of the same law.

https://dre.pt/application/conteudo/133459191

Ordinance no. 113/2020, of May 9: Approves, for 2020, and as an annex to this Ordinance, forming an integral part thereof, the Regulation on the Support Scheme for Temporary Cessation of Coastal Trawling Activities, under the priority of the European Union established in Article 6(1) of Regulation (EU) No 508/2014 of the European Parliament and of the Council, of May 15, 2014, on the European Maritime Affairs and Fisheries Fund (EMFF), and with a framework to the extent provided for in Article 33(1)(d) thereof.

https://dre.pt/application/conteudo/133459192

Ordinance no. 114/2020, of May 9: Approves, for 2020, and as an annex to this Ordinance, which forms an integral part thereof, the Regulation on the support system for the temporary cessation of fishing activities using siege gear, under the European Union priority laid down in Article 6(1) of Regulation (EU) No 508/2014 of the European Parliament and of the Council, of May 15, 2014, on the European Maritime Affairs and Fisheries Fund (EMFF), and with a framework to the extent provided for in Article 33(1)(d) thereof.

https://dre.pt/application/conteudo/133459193

Declaration of Rectification no. 19/2020, of May 12: Rectifies the Ordinance no. 100/2020, of April 22, of Justice, which proceeds with the first amendment to Ordinance no. 341/2019, of October 1, and the third amendment to Ordinance no. 380/2017, of December 19, published in the Official Gazette of the Portuguese Republic, 1st Series, no. 79, of April 22, 2020.

https://dre.pt/application/conteudo/133491301

Decree-Law no. 20-D/2020, of May 12: Proceeds with the tenth amendment to Decree-Law no. 10-A/2020 of March 13, which establishes exceptional and temporary measures relating to the epidemiological situation of the new Coronavirus – COVID-19, establishing exceptional and temporary measures for the equipment of face-to-face service spaces under the management of municipalities and parishes.

https://dre.pt/application/conteudo/133491339

Decree-Law no. 20-E/2020, of May 12: Establishes an exceptional and provisional regime for commercial practices with price reduction.

https://dre.pt/application/conteudo/133491340

Decree-Law no. 20-F/2020, of May 12: Establishes an exceptional and temporary regime, in the framework of the COVID-19 pandemic, concerning the payment of the insurance premium and the effects of the temporary decrease of the risk on insurance contracts resulting from significant reduction or suspension of activity.

https://dre.pt/application/conteudo/133491341

Council of Ministers Resolution no. 34-A/2020, of May 13: Extends the exceptional and temporary restoration of border control of persons in the context of the COVID-19 pandemic.

https://dre.pt/application/conteudo/133626309

Council of Ministers Resolution no. 36/2020, of May 14: Approves, for the 1st half of 2020, the allocation of compensation in the scope of the pass 4_18@escola.tp, the pass sub23@superior.tp and the Social Pass +.

https://dre.pt/application/conteudo/133528522

Decree-Law no. 20-G/2020, of May 14: Establishes a system of incentives for the adaptation of business activity to the context of COVID-19 disease, hereinafter referred to as the ADAPTAR Programme, which aims to support companies in their efforts to adapt and invest in their establishments, adjusting work organisation methods and relationships with clients and suppliers to the new conditions in the context of the COVID-19 disease pandemic, ensuring compliance with the established standards and recommendations of the competent authorities.

https://dre.pt/application/conteudo/133723684

Decree-Law no. 20-H/2020, of May 14: a) Proceeds with the first amendment to Decree-Law no. 14-G/2020, of April 13, which establishes the exceptional and temporary measures in the area of education, within the scope of the COVID-19 disease pandemic; b) Establishes the resumption of professional training activities; c) Determines rules on science and higher education.

https://dre.pt/application/conteudo/133723695

Declaration of Rectification no. 20/2020, of May 15: Rectifies Law No. 1-A/2020 of March 19, “Exceptional and temporary measures in response to the epidemiological situation caused by the SARS-CoV-2 coronavirus and COVID-19 disease”.

https://dre.pt/application/conteudo/133626350

Decree-Law no. 21/2020, of May 16: Proceeds with the first amendment to Decree-Law no. 10-C/2020, of March 23, which establishes exceptional and temporary measures in response to the epidemic of the COVID-19 disease within the scope of periodic technical inspections.

https://dre.pt/application/conteudo/133879986

Decree-Law no. 22/2020, of May 16: Proceeds with the eleventh amendment to Decree-Law No. 10-A/2020, of March 13, which establishes exceptional and temporary measures regarding the epidemiological situation of the new coronavirus – COVID-19.

https://dre.pt/application/conteudo/133879987

Ordinance no. 116/2020, of May 16: Proceeds to the first amendment to Ordinance no. 185/2015, of June 23, which regulates Law no. 14/2014, of March 18, which approved the legal regime of driving education, in the aspects related to the teaching of driving for qualification to the various categories of driving license and the access and exercise of the activity of exploitation of driving schools.

https://dre.pt/application/conteudo/133879988

Council of Ministers Resolution no. 38/2020, of May 17: Extends the declaration of the calamity situation in the framework of the COVID-19 pandemic.

https://dre.pt/application/conteudo/133914977

Council of Ministers Resolution no. 38-B/2020, of May 19: Establishes an exceptional and temporary measure for the acquisition of space for the diffusion of the State’s institutional publicity actions, in the context of the COVID-19 disease pandemic.

https://dre.pt/application/conteudo/134021996

Decree-Law no. 23/2020, of May 22: a) Establishes the rules for the conclusion, on a supplementary and temporary basis and in cases of justified need, of management partnership contracts in the health area; b) Defines the terms of management of National Health Service («SNS») establishments when these are based on the conclusion of the contracts referred to in the previous paragraph.

https://dre.pt/application/conteudo/134305980

Ordinance no. 121/2020, of May 22: Determines the date of September 1, 2020, for the entry into operation of the specialized courts of administrative and tax courts.

https://dre.pt/application/conteudo/134305981

Ordinance no. 122/2020, of May 22: Proceeds to the third amendment to the Regulation that created the Entrepreneurship and Employment Incentive System («SI2E»), approved by Ordinance no. 105/2017, of March 10, as amended by Ordinances no. 1/2018, of January 2, and 178/2018, of June 20.

https://dre.pt/application/conteudo/134305982

Decree-Law no. 24/2020, of May 25: Establishes the exceptional and temporary regime applicable to the occupation and use of beaches, in the context of the COVID-19 pandemic, for the 2020 bathing season.

https://dre.pt/application/conteudo/134394010

Ordinance no. 125/2020, of May 25: Revokes Ordinance no. 106/2020, of May 2, which establishes a maximum limit for air transport of passengers.

https://dre.pt/application/conteudo/134394013

Ordinance no. 126/2020, of May 26: Determines the exemption from registration fee and regulatory contribution for any structures of an extraordinary and temporary nature set up for the provision of health care, or temporarily dedicated to the provision of health care, in the framework of the response to the epidemic of SARS-CoV-2 and COVID-19 disease.

https://dre.pt/application/conteudo/134505606

Ordinance no. 127/2020, of May 26: Proceeds with the seventh amendment to the Regulation establishing Common Rules on the European Social Fund, approved in annex to Ordinance no. 60-A/2015, of March 2, in its current version.

https://dre.pt/application/conteudo/134505607

Ordinance no. 128/2020, of May 26: Proceeds with the first amendment to the Regulation of the Employment and Entrepreneurship Support System — + CO3SO Employment, approved in annex to the Ordinance no. 52/2020, of February 28.

https://dre.pt/application/conteudo/134505608

Declaration of Rectification no. 22/2020, of May 28: Rectifies the Council of Ministers Resolution no. 38-B/2020 of May 19, establishing an exceptional and temporary measure for the acquisition of space for the dissemination of the State’s institutional publicity actions in the context of the COVID-19 disease pandemic, published in the Official Gazette of the Portuguese Republic, 1st series, 1st supplement, No. 97, of May 19, 2020.

https://dre.pt/application/conteudo/134676788

Ordinance no. 131/2020, of May 28: Approves the percentages of the exchange rate adjustment mechanism created by Decree-Law 35-B/2016, of June 30, for the first half of 2020.

https://dre.pt/application/conteudo/134676789

Ordinance no. 132/2020, of May 28: Determines the date of entry into operation of the Family and Minors Court of Marco de Canaveses and the installation of the Criminal Court of the District Court of Porto Este in Penafiel.

https://dre.pt/application/conteudo/134676790

Law no. 15/2020, of May 29: a) Proceeds with the twenty-fourth amendment to Decree-Law no. 15/93, of January 22, 1993, in its current version, which approves the legal regime applicable to the trafficking and consumption of narcotic drugs and psychotropic substances, adding new substances; b) Proceeds with the transposition of Commission Directive (EU) 2019/369, of  December 13, 2018, amending the Annex to Council Framework Decision 2004/757/JAI, as well as the adoption of the decisions of the United Nations Commission on Narcotic Drugs (CND), Session no. 62, March 2019, to include new psychoactive substances in the definition of drugs.

https://dre.pt/application/conteudo/134762422

Law no. 16/2020, of May 29: Amends the exceptional and temporary measures in response to the COVID-19 disease pandemic, proceeding with the fourth amendment to Law no. 1-A/2020, of March 19, the first amendment to Law no. 9/2020, of April 10, and the twelfth amendment to Decree-Law no. 10-A/2020, of March 13.

https://dre.pt/application/conteudo/134762423

Law no. 17/2020, of May 29: Proceeds with the first amendment to Law no. 4-C/2020, of April 6, which establishes an exceptional regime for situations of delay in the payment of rent due, under the terms of residential and non-residential urban lease agreements, within the scope of the COVID-19 disease pandemic.

https://dre.pt/application/conteudo/134762424

Law no. 18/2020, of May 29: Extends the deadlines for family support measures in the context of the current public health crisis by making the first amendment to Law no. 7/2020 of April 10, establishing exceptional and temporary regimes for responding to the SARS-CoV-2 epidemic.

https://dre.pt/application/conteudo/134762425

Law no. 19/2020, of May 29: Establishes exceptional and temporary measures in response to the COVID-19 disease pandemic in the cultural and artistic sphere, festivals and shows of a similar nature, making the second amendment to Decree-Law no. 10-I/2020 of March 26, as amended by Law no. 7/2020 of April 10.

https://dre.pt/application/conteudo/134762426

Declaration of Rectification no. 23/2020, of May 29: Rectifies Law no. 2/2020 of March 31, “State Budget for 2020”.

https://dre.pt/application/conteudo/134762427

Decree-Law no. 24-A/2020, of May 29: Proceeds to the thirteenth amendment to Decree Law no. 10-A/2020 of March 13, establishing exceptional and temporary measures regarding the epidemiological situation of the new coronavirus – COVID-19.

https://dre.pt/application/conteudo/134889277

Council of Ministers Resolution no. 40-A/2020, of May 29: Extends the declaration of the calamity situation in the framework of the COVID-19 pandemic.

https://dre.pt/application/conteudo/134889278

III. CASE-LAW

Judgement of the Justice Court of May 7, Case C-547/18: Reference for a preliminary ruling. Taxation. Value added tax (VAT). Directive 2006/112/EC. Article 44. Implementing Regulation (EU) No 282/2011. Article 11(1). Supply of services. Point of reference for tax purposes. Concept of a ‘fixed establishment’. Taxable person for VAT purposes. Subsidiary of a company of a non-Member State located in a Member State.

Summary:

Article 44 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2008/8/EC of 12 February 2008, and Article 11(1) and Article 22(1) of Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112, must be interpreted as meaning that the existence, in the territory of a Member State, of a fixed establishment of a company established in a non-Member State may not be inferred by a supplier of services from the mere fact that that company has a subsidiary there, and that supplier is not required to inquire, for the purposes of such an assessment, into contractual relationships between the two entities.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0547

Judgement of the Justice Court of May 7, Case C-641/18: Reference for a preliminary ruling. Judicial cooperation in civil matters. Regulation (EC) No 44/2001. Article 1(1). Concepts of ‘civil and commercial matters’ and ‘administrative matters’. Scope. Activities of ship classification and certification societies. Acta iure imperii and acta iure gestionis. Public powers. Immunity from jurisdiction.

Summary:

Article 1(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action for damages, brought against private-law corporations engaged in the classification and certification of ships on behalf of and upon delegation from a third State, falls within the concept of ‘civil and commercial matters’, within the meaning of that provision, and, therefore, within the scope of that regulation, provided that that classification and certification activity is not exercised under public powers, within the meaning of EU law, which it is for the referring court to determine. The principle of customary international law concerning immunity from jurisdiction does not preclude the national court seised from exercising the jurisdiction provided for by that regulation in a dispute relating to such an action, where that court finds that such corporations have not had recourse to public powers within the meaning of international law.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0641

Judgement of the Justice Court of May 7, Joined Cases C-267/19 and C-323/19: Reference for a preliminary ruling. Regulation (EU) No 1215/2012. Judicial cooperation in civil matters. Notaries acting in enforcement proceedings on the basis of an authentic document. Non-adversarial procedure. Principle of non-discrimination. Article 18 TFEU. Right to a fair trial. Article 47 of the Charter of Fundamental Rights of the European Union.

Summary:

Article 18 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation empowering notaries, acting within the framework of the powers conferred on them in enforcement proceedings on the basis of an authentic document, to issue enforcement orders which, as is apparent from the judgment of 9 March 2017 in Case C-551/15 Pula Parking EU: C:2017:193), cannot be recognised and enforced in another Member State.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0267

Judgement of the Justice Court of May 14, Case C-446/18: Reference for a preliminary ruling. Common system of value added tax (VAT). Directive 2006/112/EC. Deduction of input VAT. Surplus of VAT. Retention of the surplus following the opening of a tax audit procedure. Claim for repayment of the part of the surplus relating to transactions not covered by that procedure. Refusal by the tax authority.

Summary:

Articles 179, 183 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in the light of the principle of fiscal neutrality, must be interpreted as not precluding national legislation which does not provide for the possibility for the tax authorities to grant, before the outcome of a tax audit procedure relating to a value added tax (VAT) return indicating a surplus for a given tax period, a tax credit for a given taxable period, repayment of that part of that surplus relating to transactions not covered by that procedure at the time when it was initiated, provided that it is not possible to determine in a clear, precise and unequivocal manner that a surplus of VAT, the amount of which may possibly be less than that relating to transactions not covered by that procedure, will remain whatever the outcome of that procedure, which it is for the national court to ascertain.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0446

Judgement of the Justice Court of May 14, Case C-749/18: Reference for a preliminary ruling. Articles 49 and 54 TFEU. Freedom of establishment. Tax legislation. Corporation taxes. Parent companies and subsidiaries. Vertical and horizontal tax consolidation.

Summary:

Articles 49 TFEU and 54 TFEU must be interpreted as precluding legislation of a Member State which, while allowing vertical tax integration between a resident parent company or a permanent establishment in that Member State of a non-resident parent company and its resident subsidiaries, does not allow horizontal tax integration between the resident subsidiaries of a non-resident parent company.

Articles 49 TFEU and 54 TFEU must be interpreted as precluding legislation of a Member State which has the effect of requiring a parent company having its seat in another Member State to dissolve a vertical tax integration existing between one of its subsidiaries and a number of its resident sub-subsidiaries in order to enable that subsidiary to carry out a horizontal tax integration with other resident subsidiaries of that parent company, even though the resident integrating subsidiary remains the same and the dissolution of the vertical tax integration before the end of the minimum duration of the existence of the integration, as provided for by national law, implies the individual rectifying taxation of the companies concerned.

The principles of equivalence and effectiveness must be interpreted as not precluding legislation of a Member State relating to a system of tax integration which provides that any application to benefit from such a system must be submitted to the competent authority before the end of the first tax year for which application of that system is requested.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0749

III.2 Constitutional Court

Ruling of the Constitutional Court no. 258/2020, of 5 May, Case no. 1139/2019:

Ruling:

In view of the above, it is decided to declare the unconstitutionality, with general mandatory force, of the rule contained in paragraph 4 of Article 222-G of the Insolvency and Corporate Recovery Code, approved by Decree-Law No. 53/2004 of March 18, when interpreted in the sense that the opinion of the provisional trustee concluding the situation of insolvency is equivalent, by virtue of the provisions of Article 28 of the same Decree-Law – albeit with the necessary adaptations – to the submission of the debtor to insolvency, when the debtor disagrees with his situation of insolvency, for breach of Article 20, paragraphs 1 and 4, in conjunction with Article 18, paragraph 2, of the Constitution of the Portuguese Republic.”.

https://www.tribunalconstitucional.pt/tc/acordaos/20200258.html

Ruling of the Constitutional Court no. 258/2020, of 5 May, Case no. 1139/2019:

Ruling:

In view of the above, it is decided to declare the unconstitutionality, with general mandatory force, of the rule contained in paragraph 4 of Article 222-G of the Insolvency and Corporate Recovery Code, approved by Decree-Law No. 53/2004 of March 18, when interpreted in the sense that the opinion of the provisional trustee concluding the situation of insolvency is equivalent, by virtue of the provisions of Article 28 of the same Decree-Law – albeit with the necessary adaptations – to the submission of the debtor to insolvency, when the debtor disagrees with his situation of insolvency, for breach of Article 20, paragraphs 1 and 4, in conjunction with Article 18, paragraph 2, of the Constitution of the Portuguese Republic.”.

https://www.tribunalconstitucional.pt/tc/acordaos/20200258.html

III.3. Courts of Justice

Judgement of the Court of Appeal of Lisbon of May 5, Case no. 10927/17.5T8LSB.L1-7: Publication. Freedom of expression. Personality rights. Right to image. Violation. Civil liability.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/8bc33906a640004680258566004d4444?OpenDocument

Judgement of the Court of Appeal of Lisbon of May 5, Case no. 22537/18.5T8LSB.L1-7: Contract. Consumer credit. Nullity. Claim. Abuse of rights.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/7332ccb8e18fe3e080258566002cb8ce?OpenDocument

 

Judgement of the Court of Appeal of Lisbon of May 5, Case no. 652/19.8T8AMD-A.L1-7: Society. Headquarters. Alteration. Extemporaneous contestation. Fair impediment.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/83a852e45aacff47802585660038e9f1?OpenDocument

Judgement of the Court of Appeal of Lisbon of May 7, Case no. 2282/15.4T8ALM-A.L1-6: PERSI (Out-of-court settlement procedure). Extinction. Communication. Dilatory objection. Finding of the Court of its own motion.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/556170cb858b05ec80258569002dd3ec?OpenDocument

Judgement of the Court of Appeal of Lisbon of May 14, Case no. 1559/18.1T8LSB.L2-8: Financial intermediary. Civil liability. Information duty. Contractual liability. Limitation period.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/988727f3025f6c268025856d004c376f?OpenDocument

Judgement of the Court of Appeal of Lisbon of May 21, Case no. 19356/18.2T8SNT-B.L1-8: Plurality of executions. Tax execution. Attachment of property for own habitation. Suspension of execution. Continuation of common execution.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/aeb5073d968c541280258574004c7a94?OpenDocument

III.4. Administrative and Tax Court

Judgement of the Central Administrative South Court of May 5, Case no. 2410/11.9BELRS: Tax reversal. Preconditions. Burden of proof. Single receipts. Management.

http://www.dgsi.pt/jtca.nsf/170589492546a7fb802575c3004c6d7d/d9458adda2ccfc6580258523005b0ae2?OpenDocument&Highlight=0,2410%2F11.9BELRS

Judgement of the Supreme Administrative Court of May 6, Case no. 03357/16.8BELRS: Personal Income Tax (“IRS”). Capital gains. Insolvency.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/f8dc578a918e4e4680258566004bd6eb?OpenDocument

Judgement of the Supreme Administrative Court of May 6, Case no. 046/12.6BEBJA: Personal Income Tax (“IRS”). Judicial challenge. Procedural requirements.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/6b75f46b08174caf8025856600551dc2?OpenDocument

Judgement of the Supreme Administrative Court of May 6, Case no. 0127/11.3BEAVR: Corporate income tax (“IRC”). Tax benefits. Financial charges. Burden of proof. Form.

http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/f7478897a204454f8025856600578402?OpenDocument

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

Joaquim Miranda Sarmento, Ricardo Nunes, Marta Morais Pinto, Manual Teórico-Prático de IRC, 3ª Edição, Almedina, maio 2020

Joaquim Miranda Sarmento, Catarina Matos, Manual Teórico-Prático do IVA, 2.ª Edição, Almedina, maio 2020

Anabela Miranda Rodrigues, Direito Penal Económico – Uma Política Criminal na Era Compliance, 2ª Edição, Almedina, maio 2020

Amadeu Colaço, Guia Prático do Arrendamento Urbano, 2ª Edição, Almedina, maio 2020

Pedro Romano Martinez, Luís Miguel Monteiro, Joana Vasconcelos, Pedro Madeira de Brito, Guilherme Machado Dray, Luís Gonçalves da Silva, Código do Trabalho Anotado, 13ª Edição, Almedina, maio 2020

Joana Rola de Veludo, O Regulamento Interno do Conselho de Administração das Sociedades Abertas, Almedina, maio 2020

José Casalta Nabais, Estudos de Direito Administrativo Fiscal, Almedina, maio 2020

Paulo Olavo Cunha, Deliberações Sociais – Formação e Impugnação, Almedina, maio 2020

Catarina Monteiro Pires (coord.), Ana Perestrelo de Oliveira, A. Barreto Menezes Cordeiro, Diogo Costa Gonçalves, Madalena Perestrelo de Oliveira, Maria de Lurdes Pereira, Novo Coronavírus e Crise Contratual, AAFDL Editora, maio 2020

IV.1.2. Generic Guidelines & Cia

Binding information no. 15035, of 05.05.2020, of Director of VAT Services

Subject: Rates. VAT. The rate established by Ordinance no. 74 C/2016, of 23/03, concerning its inclusion of the taxable amount of service provision and invoiced to the customers.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/informacoes_vinculativas/despesa/civa/Documents/INFORMACAO_15035.pdf

Binding information no. 15514, of 05.05.2020, of Director of VAT Services

Subject: Location of company operation. Service contracting of speakers and international experts.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/informacoes_vinculativas/despesa/civa/Documents/INFORMACAO_15514.pdf

Binding information no. 17295, of 05.05.2020, of Director of VAT Services

Subject: Tax rates. Urban renewal. Renewal of the urban building by its owner, through the works contract. The location is not at the urban recovery area therefore it cannot benefit from the legal framework of the point 2.23 of VAT code complementary legislation.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/informacoes_vinculativas/despesa/civa/Documents/INFORMACAO_17295.pdf

Binding information no. 17256, of 05.05.2020, of Director of VAT Services

Subject: Tax rates. Legal consultant fees. Legal aid. Benefit entitlement of the legal aid – payment of fees and other expenses, without the public defendant.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/informacoes_vinculativas/despesa/civa/Documents/INFORMACAO_17256.pdf

Binding information no. 17452, of 05.05.2020, of Director of VAT Services

Subject: Tax rates. Pharmaceutical products. Human hygiene “biocides”.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/informacoes_vinculativas/despesa/civa/Documents/INFORMACAO_17452.pdf

Circulate letter no. 30221, of 12.05.2010, of Deputy General Director of VAT management area

Subject: VAT. Periodic statement and tax payment deadline renewal. Tax calculation based on “E-fatura” system. The deadline extension for the submission of the accounting and tax data, attachments, and the recapitulative statements.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_circulado_30221_2020.pdf

Binding information no. 38/2017, of 19.05.2020, of Secretary of State Tax Affairs

Subject: The framework of income obtained under construction or urban regeneration projects and disposal of immovable property by the property investment funds.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/informacoes_vinculativas/beneficios_fiscais/Documents/PIV_2020_38_2017.pdf

Circulate letter no. 30222, of 25.05.2020, of Deputy General Director of VAT management area

Subject: VAT – The exemption applies on the goods needed in combating Covid-19, if purchased by the State, by the other public bodies, or by non-profit-making organisations. Reduced tax rate application to the respiratory protection masks and to the dermal sanitizing gel.

https://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_circulado_30222_2020.pdf

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

On May 7, the Council of Ministers has approved the Stability Programme (“PE”) and the 2020 National Reform Programme (“PNR”), which have been defined at a time of great uncertainty, on the basis of COVID-19 pandemic. This unexpected, symmetrical, and extraordinary shock had a significant impact on economy, in the job market and thus in the public accounts.

The 2020 Stability Programme concentrates on identification of political policies, announced under implementation, to combat the pandemic. In this document is still made the assessment of the economic cost of the period of social confinement.

https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=345

On May 12, it was approved a Decree-Law, published on May 14 as Decree-Law no. 20-G/2020, which established a system of incentives of safety for the micro, small and medium-sized enterprises, designated by ADAPTAR Programme, which will enable to reduce  additional cost involved to the quick recovery of operating conditions of the micro, small and medium-sized enterprises, supporting the individual protection equipment purchase costs for workers and users, the cleaning equipment, cleaning assistance contracts, and the costs related to the workplaces reorganization and the establishments layout changes.

https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=346

V. INDUSTRIAL PROPERTY

After the consent of all GAC (Anti-Counterfeiting Group) entities, the 2019 Activity Report and the 2020 Activity Plan were unanimously approved. The 2019 Report reveals data on seizures of counterfeit and pirated products made by AT (Tax and Customs Authority), PSP (Public Security Police), GNR (National Republican Guard), ASAE (Food and Economic Security Authority), IRAE (Regional Inspection of Economic Activities of the Azores), which amounted to a total of 1,467,561 seized products.

https://inpi.justica.gov.pt/Noticias-do-INPI/Relatorio-de-Atividades-2019-do-Grupo-Anti-Contrafacao

The appointment of Mr. Daren Tang as Director General of WIPO was confirmed by the General Assembly of WIPO (World Intellectual Property Organization) on May 8, 2020 by the Coordination Committee.

Mr. Daren Tang’s appointment was made through an unprecedented written procedure after the cancellation and/or postponement of the WIPO face-to-face meetings due to the COVID-19 pandemic.

Mr. Tang, current Executive Director of the Intellectual Property Office of Singapore (IPSOS), will be the fifth Director General of WIPO.

https://inpi.justica.gov.pt/Noticias-do-INPI/Daren-Tang-nomeado-Diretor-Geral-da-OMPI-1

The Enlarged Board of Appeal (EBoA) of the European Patent Office (EPO) issued Opinion G 3/19 (Pepper) on 14 May last, concluding that plants and animals obtained exclusively by biological processes are not patentable. Thus, the exclusion from patentability of essentially biological processes, laid down in Article 53(b) of the EPC (European Patent Convention), extends to animal or plant products obtained exclusively by means of such processes.

EBoA has therefore abandoned its previous interpretation of Article 53(b) in Decisions G 2/12 and G 2/13. In order to ensure legal certainty and to protect the legitimate interests of patent owners and applicants, EBoA decided that this new interpretation does not have retroactive effect on European patents which contained such claims and which were granted before 1 July 2017, or on pending European patent applications seeking protection for such claims and which were filed before that date.

https://inpi.justica.gov.pt/en-gb/INPI-News/Press-Communique-of-14-May-2020-concerning-opinion-G3-19-of-the-EBoA-1

The World Intellectual Property Organization (WIPO) has developed and launched a new online service for digital asset protection, the “WIPO PROOF”. This new WIPO digital service is aimed at innovators and creators who do their work in the digital economy, helping them to protect their digital assets. The service provides information about the existence of a creation from a certain point in time, while enabling it to be verified by anyone. Thus, IP services are complemented by a useful tool for artists, composers, designers, scientists, or entrepreneurs who want to protect their files and data at all stages of the development of their work, from conception to marketing.

https://inpi.justica.gov.pt/Noticias-do-INPI/OMPI-lanca-o-WIPO-PROOF

 

 

Keywords: MGRA, Calamity Situation, Covid-19, Exceptional measures, Withdrawal of confinement, Insolvency, ADAPTAR Programme.

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