I. EDITORIAL – INJUNCTION PROCEDURE ON LEASES; LIMITATIONS ON THE REDACTION OF GENERAL CONTRACTUAL CLAUSES; PORTUGUESE CHARTER OF HUMAN RIGHTS IN THE DIGITAL AGE; EXCEPTIONAL AND TEMPORARY SUSPENSION OF ESSENTIAL SERVICES SUPPLY CONTRACTS
The month of May was marked, at the legislative level, by the approval and publication, on the one hand, of the Decree-Law no. 34/2021, of May 14, approving the Injunction Procedures for Leases (IMA) and, on the other hand, of Law no. 32/2021, of May 27, which establishes limitations on the redaction of contractual clauses and provides for the creation of a system for the control and prevention of abusive clauses, amending Decree-Law no. 446/85 of 25 October 1985, which establishes the legal framework for general contractual clauses.
On the legislative sphere, reference should also be made to:
I) Law no. 27/2021, of May 17, which approved the Portuguese Charter of Human Rights in the Digital Era;
II) Law no. 29/2021, of May 20, which established the exceptional and temporary suspension of contracts for the supply of essential services in the context of the pandemic of the disease COVID-19.
In the scope of case law, we highlight the Judgement of the Justice Court of May 12, Case C‑844/19, which clarified that Article 90(1) and Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with the principle of fiscal neutrality, must be interpreted as meaning that a refund resulting from an adjustment of the taxable amount under Article 90(1) of that directive must, like a refund of excess value added tax under Article 183 of that directive, give rise to the payment of interest where it is not made within a reasonable period of time. It is for the referring court to do whatever lies within its jurisdiction to give full effect to those provisions by interpreting national law in conformity with EU law.
Finally, in Miscellaneous, it is worth highlighting the approval by the Council of Ministers, on May 27, of the Decree-Law that reviews the regime applicable to energy efficiency management contracts to be signed between public administration services and organisms and service providers.
Law no. 22/2021, of May 3: Grants the Government legislative authorisation to approve the legal regime applicable to individual teaching and home teaching.
Council of Ministers Resolution no. 46-A/2021, of May 3: Authorises “Infraestruturas de Portugal, S. A.”, to develop procedures for the implementation of five road projects.
Assembly of the Republic Resolution no. 134/2021, of May 4: Approves, for ratification, the amendment to be added to Article 8 of the Rome Statute of the International Criminal Court, adopted in The Hague on 6 December 2019.
Regional Legislative Decree no. 13/2021/A, of May 4: Establishes an Extraordinary Cultural Support Programme in the Autonomous Region of the Azores and defines the terms and conditions of access to it.
Decree-Law no. 29-B/2021, of May 4: Establishes the governance model for the European funds allocated to Portugal through the Recovery and Resilience Plan (RRP) under the European Union’s Recovery and Resilience Mechanism (RRM) for the period 2021-2026.
Council of Ministers Resolution no. 46-B/2021, of May 4: Creates the “Recuperar Portugal” Mission Structure as the entity responsible for the technical coordination and management coordination of the execution of the Recovery and Resilience Plan (RRP).
Ordinance no. 98/2021, of May 5: Approves the model 30 declaration – income paid or placed at the disposal of non-resident taxpayers, and the respective instructions for completing it, in order to comply with the reporting obligation set out in paragraph a) of no. 7 of article 119 of the Personal Income Tax (IRS) Code and article 128 of the Corporate Income Tax (IRC) Code.
Regional Legislative Decree no. 14/2021/A, of May 5: Undertakes the fifth amendment to Regional Legislative Decree no. 21/2009/A, of December 2, which establishes the legal regime of support to sports associations.
Council of Ministers Resolution no. 46-C/2021, of May 6: Amends the measures applicable to certain municipalities in the context of the disaster situation.
Law no. 23/2021, of May 7: Re-establishes the functioning of the independent technical observatory for the analysis, monitoring and evaluation of forest and rural fires occurring in the national territory.
Decree-Law no. 30/2021, of May 7: Provides for the regulation of Law no. 54/2015, of June 22, with regard to mineral deposits.
Decree-Law no. 31/2021, of May 7: Creates the State Foreign Policy Support Skills Centre (CAPE), as a service integrated in the General Secretariat of the Ministry of Foreign Affairs.
Law no. 24/2021, of May 10: Clarifies the legal nature of the employment relationship of staff appointed to perform duties in the offices of parliamentary groups, single Deputies representing one party and unenrolled Deputies, amending the Law on the Organisation and Functioning of the Services of the Assembly of the Republic, approved by Law no. 77/88, of July 1.
Ordinance no. 99/2021, of May 10: Regulates the private insurance system for cooperation agents contracted by public entities.
Ordinance no. 100/2021, of May 10: Defines the game species that can be hunted during the 2021-2024 hunting seasons, as well as the periods, proceedings and other constraints.
Law no. 25/2021, of May 11: Includes new psychoactive substances in the definition of drugs, transposing Commission Delegated Directive (EU) 2020/1687, of 2 September 2020, and amending Decree Law no. 15/93, of January 22, which approves the legal regime applicable to the trafficking and consumption of narcotic drugs and psychotropic substances.
Council of Ministers Resolution no. 49/2021, of May 11: Approves the Cultural Heritage Investment Programme.
Council of Ministers Resolution no. 50/2021, of May 11: Creates the Portuguese Contemporary Art Network and the Curator of the State Collection of Contemporary Art.
Council of Ministers Resolution no. 51/2021, of May 11: Amends the guidelines for the National Arts Plan.
Council of Ministers Resolution no. 52-A/2021, of May 11: Amends the special measures applicable to the parishes of São Teotónio and Longueira/Almograve, in the municipality of Odemira.
Decree-Law no. 32/2021, of May 12: Undertakes the seventh amendment to Decree-Law no. 46-A/2020, of July 30, which creates the extraordinary support for the progressive resumption of activity in companies in a situation of business crisis with a temporary reduction of the normal working period.
Decree-Law no. 33/2021, of May 12: Creates the Vila Franca de Xira Hospital, E. P. E.
Assembly of the Republic Resolution no. 139/2021, of May 13: Recommends that the Government adopt measures to regulate social support activity for elderly people without accommodation.
Regulatory Decree no. 6/2021/A, of May 13: Regulates the Extraordinary Support Programme for Private Media Organs, approved by the Regional Legislative Decree no. 9/2021/A, of April 5.
Decree-Law no. 34/2021, of May 14: Undertakes: a) To define the regime of the injunction procedure in matters of lease (IMA), provided for in Article 15-T of Law no. 6/2006, of 27 February 2006, in its current wording, which approves the New Urban Rental Regime (NRAU); b) To regulate the Leasehold Injunction Service (SIMA).
Council of Ministers Resolution no. 59/2021, of May 14: Reviews and approves the guiding principles of the programme “Iniciativa Nacional Competências Digitais e.2030 – INCoDe.2030“.
Ordinance no. 102-A/2021, of May 14: Regulates the new incentive to the normalization of business activity, provided for in Decree-Law no. 23-A/2021, of March 24, and the simplified support for micro-enterprises to maintain jobs, provided for in Decree-Law no. 46-A/2020, of July 30.
Decree-Law no. 34-A/2021, of May 14: Undertakes the first amendment to Decree-Law no. 46/2016, of August 18, which establishes the transitional regime for the titles of private use of water resources for aquaculture purposes in transitional waters.
Decree-Law no. 34-B/2021, of May 14: Defines the transitional model for the management, operation, maintenance, modernisation and extension of the SIRESP network.
Council of Ministers Resolution no. 59-A/2021, of May 14: Grants compensatory indemnity to “SIRESP – Gestão de Redes Digitais de Segurança e Emergência, S. A.”.
Ordinance no. 102-C/2021, of May 14: It identifies for the year 2021 coastal and transitional bathing waters and inland bathing waters, fixing the respective bathing seasons, as well as identifying bathing beaches where lifeguards are ensured.
Council of Ministers Resolution no. 59-B/2021, of May 14: Declares the situation of calamity, in the context of the pandemic of the disease COVID-19.
Order no. 4957-A/2021, of May 14: Approves the list of countries and international sports competitions where the rules on air traffic, airports, land and river borders apply.
Law no. 26/2021, of May 17: Authorises the Government to establish the rules ensuring the implementation of Regulation (EU) 2017/2394 of the European Parliament and of the Council of December 12 of 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws.
Law no. 27/2021, of May 17: Approves the Portuguese Charter on Human Rights in the Digital Age.
Decree-Law no. 35-A/2021, of May 18: Regulates the access, occupation and use of bathing beaches, in the context of the COVID-19 disease pandemic, for the 2021 bathing season.
Decree-Law no. 36/2021, of May 19: Prohibits the advertising of discounts on the price of medicines whose advertising is prohibited.
Law no. 29/2021, of May 20: Exceptional and temporary suspension of contracts for the supply of essential services in the context of the pandemic disease COVID-19.
Law no. 30/2021, of May 21: Approves special measures for public contracting and amends the Public Contracts Code, approved in annex to Decree-Law no. 18/2008, of January 29, the Procedure Code for Administrative Courts, approved in annex to Law no. 15/2002, of February 22, and Decree-Law no. 200/2008, of October 9.
Assembly of the Republic Resolution no. 148/2021, of May 21: First supplementary budget of the Assembly of the Republic for the year 2021.
Decree-Law no. 37/2021, of May 21: Creates an exceptional measure to compensate the increase in the value of the minimum monthly salary guaranteed.
Council of Ministers Resolution no. 62-A/2021, of May 21: Amends the measures applicable to certain municipalities in the context of the calamity situation.
Order no. 108/2021, of May 25: Defines out the criteria to be considered when proving disability for the purposes of awarding the disability allowance for child benefit.
Law no. 32/2021, of May 27: Establishes limitations on the redaction of contractual clauses and provides for the creation of a system for the control and prevention of abusive clauses, amending Decree-Law no, 446/85 of 25 October 1985, which establishes the legal framework for general contractual clauses.
Order no. 114-A/2021, of May 27: Approves the Statutes of the Housing and Urban Rehabilitation Institute, I.P.
Law no. 33/2021, of May 28: It extends the exemption from value added tax on intra-Community transfers and acquisitions of goods needed to combat the effects of the pandemic disease COVID-19.
Decree-Law no. 37-A/2021, of May 28: Guarantees the non-reduction of remuneration and the right to national social protection for prosecutors appointed Delegated European Public Prosecutors.
Implementing Decree no. 2-A/2021, of May 28: It defines the scope and specific conditions for the operation of the “IVAucher” programme.
Council of Ministers Resolution no. 64-A/2021, of May 28: Extends the disaster situation and modifies the measures applicable to certain municipalities in the context of the disaster situation.
Ordinance no. 115-A/2021, of May 28: Establishes the implementation regime for the new exceptional and temporary measure provided for in Article 39b of Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 17 December under the Rural Development Programme for Mainland Portugal (RDP 2020).
Law no. 33-A/2021, of May 28: Establishes the temporary tax regime applicable to the organisers of the final of the UEFA Champions League 2020 -2021 competition, as well as to sports clubs, their players and technical teams, by virtue of their participation in that competition.
Assembly of the Republic Resolution no. 156-A/2021, of May 28: Extension of the term of operation of the Parliamentary Eventual Enquiry Commission into the losses recorded by Novo Banco and imputed to the Resolution Fund.
Council of Ministers Resolution no. 65/2021, of May 30: Recognises the need for the civil requisition of workers in the investigation and inspection career of the Foreigners and Borders Service who work at border posts.
Ordinance no. 116/2021, of May 30: Effectuates the civil requisition whose necessity was recognized by the Resolution of the Council of Ministers No. 65/2021, of 27 May.
Decree-Law no. 38/2021, of May 31: Approves the legal regime applicable to the protection and conservation of wild flora and fauna and of natural habitats of species listed in the Berne and Bonn Conventions.
Decree-Law no. 39/2021, of May 31: It extends the deadlines for the procedures for allocating funding and compensation to essential transport operators in the framework of the pandemic disease COVID-19.
Regional Legislative Decree no. 15-A/2021/A, of May 31: Approves the Budget of the Autonomous Region of the Azores for the year 2021.
III.1. Court of Justice of the European Union
Judgement of the Justice Court of May 12, Case C-709/19: Reference for a preliminary ruling. Jurisdiction and the enforcement of judgments in civil and commercial matters. Regulation (EU) No 1215/2012. Article 7(2). Jurisdiction in tort, delict or quasi-delict. Place where the harmful event occurred. Damage consisting in purely financial loss.
“Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the direct occurrence in an investment account of purely financial loss resulting from investment decisions taken as a result of information which is easily accessible worldwide but inaccurate, incomplete or misleading from an international listed company does not allow the attribution of international jurisdiction, on the basis of the place of the occurrence of the damage, to a court of the Member State in which the bank or investment firm in which the account is held has its registered office, where that firm was not subject to statutory reporting obligations in that Member State.”.
Judgement of the Justice Court of May 12, Case C‑844/19: Reference for a preliminary ruling. Common system of value added tax (VAT). Directive 2006/112/EC. Article 90. Reduction of the taxable amount. Article 183. Refund of excess VAT. Default interest. No national rule. Principle of fiscal neutrality. Direct effect of provisions of EU law. Principle that national law must be interpreted in conformity with EU law.
“Article 90(1) and Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with the principle of fiscal neutrality, must be interpreted as meaning that a refund resulting from an adjustment of the taxable amount under Article 90(1) of that directive must, like a refund of excess value added tax under Article 183 of that directive, give rise to the payment of interest where it is not made within a reasonable period of time. It is for the referring court to do whatever lies within its jurisdiction to give full effect to those provisions by interpreting national law in conformity with EU law.”.
Judgement of the Justice Court of May 20, Case C‑8/20: Reference for a preliminary ruling. Area of freedom, security, and justice. Border controls, asylum, and immigration. Asylum policy. Directive 2013/32/EU. Common procedures for granting and withdrawing international protection status. Application for international protection. Grounds for inadmissibility. Article 2(q). Concept of “subsequent application”. Article 33(2)(d). Rejection by a Member State of an application for international protection on the ground of inadmissibility because of the rejection of a previous application made by the person concerned in a non-member State which has concluded an agreement with the European Union on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in one of the States party to that agreement. Final decision taken by the Kingdom of Norway.
“Article 33(2)(d) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June of 2013 on common procedures for granting and withdrawing international protection status, read in conjunction with Article 2(q) thereof, must be interpreted as precluding legislation of a Member State which provides for the possibility of rejecting, on grounds of inadmissibility, an application for international protection, within the meaning of Article 2(b) of that directive, submitted to that Member State by a third country national or a stateless person whose previous application for refugee status, submitted to a third State implementing Regulation (EU) no. 604/2013 of the European Parliament and of the Council of June 26 of 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person in accordance with the Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining an application for asylum lodged in a Member State or in Iceland or Norway – Statements, has been rejected by that third State.”
III.2 Constitutional Court
Judgement of the Constitutional Court no. 272/2021 of May 5, Case no. 1161/2019:
The Public Prosecutor’s Office filed an appeal to the Constitutional Court, requesting the assessment of the rule contained in article 334 of the Labour Code and in article 481, no. 2, introductory part, of the Commercial Companies Code, in the part that prohibits the solidary responsibility of a company registered outside national territory, in a relation of reciprocal participations, dominium or group with a Portuguese company, for credits arising from the subordinate labour relationship established with the latter, or from its rupture, and the Constitutional Court decided:
“To declare the unconstitutionality, with binding general force, of the conjugated interpretation of the norms contained in article 334 of the Labour Code and in article 481, no. 2, introductory wording, of the Commercial Companies Code, in the part in which it prohibits the solidary responsibility of a company registered outside of national territory, in a relationship of reciprocal participations, of dominion or of group with a Portuguese company, for credits arising from the subordinate work relationship established with the latter, or from its rupture, due to the violation of the principle of equality, enshrined in article 13 of the Constitution.”
III.3. Courts of Justice
Judgement of the Coimbra Court of Appeal, of May 4, Case no. 4422/17.0T8VIS-B.C1: Verification of claims. List of acknowledged creditors. Notification. Secondary nullity. Correction.
Judgement of the Coimbra Court of Appeal, of May 4, Case no. 142/19.9T8FND-B.C2: Capacity. Claims under resolutive condition. Claims under suspensive condition. Judicial decision. Joint and several debtors. Intention to novate. Own interest of the company. Novation. Burden of proof. Burden of allegation. Provision of guarantees. Commercial companies.
III.4. Administrative and Tax Court
Judgement of the Supreme Administrative Court, of May 12, Case no. 0261/19.1BELLE: Insolvency. Notification.
Judgement of the Supreme Administrative Court, of May 12, Case no. 0237/17.3BELLE: Usufruct. Capital Gains. Exclusion.
Judgement of South Administrative Central Court, of May 6, Case no. 102/20.7BCLSB: Sport Arbitration Court. Sports Discipline. Disciplinary Responsibility. Sport Clubs. Presumptions.
IV.1.1. Monographs and Periodic Publications
Alexandre de Soveral Martins, Compra e Venda Internacional de Mercadorias: a CISG, Almedina, maio 2021
Letícia Marques Costa, A Insolvência de Pessoas Singulares, Almedina, maio 2021
Joaquim Freitas da Rocha, João Damião Caldeira, Regime Complementar do Procedimento de Inspeção Tributária e Aduaneira – Anotado e Comentado, 2ª Edição, Almedina, maio 2021
Jorge Miranda, Aperfeiçoar a Constituição, Almedina, maio 2021
Dário Moura Vicente (Coord.), Lei da Arbitragem Voluntária Anotada, 5ª Edição, Almedina, maio 2021
Madalena Perestrelo de Oliveira, Tutela do Investidor Perante o Emitente no Mercado de Capitais – Um Modelo Dinâmico de Proteção, Almedina, maio 2021
João A. Alves, O Novo Modelo de Proteção de Dados Pessoais Europeu, Almedina, maio 2021
Sara Luís Dias, O Crédito Tributário no Processo de Insolvência e nos Processos Judiciais de Recuperação, Almedina, maio 2021
José Gaspar Schwalbach, Direito Digital, Almedina, maio 2021
IV.1.2. Generic Guidelines & Cia
Circulate Letter no. 90033, of 13.05.2021, by order of the Deputy Director-General of the Collections Area
Subject: Brexit – Tax Representation – Updating of Point 1.1 of Circular Letter No 90031 of 11.01.2021.
Circulate Letter no. 20233, of 07.05.2021, by order of the Deputy Director-General of the of the IRC Services Directorate
Subject: IRC – Rates of Municipal Surcharge on Taxable Profit for the 2020 Tax Period.
IV.2.1. Economy, Finance and Taxation
The Council of Ministers approved, on May 27, the resolution that extends the situation of calamity in all continental national territory until 23:59h of 13 June 2021, introducing changes with respect to municipalities covered by each phase of deconfinement, considering the data on the incidence by county on May 26.
The Council of Ministers also approved on the same date, the resolution establishing the National Action Programme (PNA) of the National Plan for Integrated Management of Rural Fires (PNGIFR), materialising four strategic guidelines: valuing rural spaces; caring for rural spaces; changing behaviours; and managing risk efficiently.
Finally, the decree-law which reviews the regime applicable to energy efficiency management contracts to be signed between public administration services and organisms and service providers was approved. The decree-law seeks to simplify the formation of the contract, reducing the bureaucratic burden to be faced by companies and individuals who wish to collaborate with Public Administration services and organisms, promoting their capacity and the energy efficiency of the buildings and equipment they use, contributing to the reduction of consumption and emissions.
V. INDUSTRIAL PROPERTY
Data regarding the annual evolution of Industrial Property Rights (IPR) for the last decade has been made available. Regarding applications for Trade Marks and other Distinctive Trade Signs (OSDCs), in the national and European channels there was a slight decrease compared to the last three years, while the international channel had the lowest number of applications in 2020 of the decade. In turn, the figures for IPRs in force in 2020 for Trademarks and OSCs remained within the average for the entire decade, with International Trademark IPRs recording the highest figure since 2011.
The 33rd edition of the “BVT Ocean Energies”, published within the scope of the Iberian project between the National Institute of Industrial Property (INPI) and the Spanish Patent and Trademark Office (OEPM), is now available. It presents the statistics on international patent applications published in the 1st quarter of 2021, under the PCT (Patent Cooperation Treaty), by country of most frequent priority.
The European Patent Office (EPO) has released the list of 15 inventors and teams of inventors as finalists for the 2021 edition of the European Inventor Prize, which comprises five categories: Industry, Research, Non-EPO Member Countries, SMEs and Lifetime achievement. The winner of the sixth category, the People’s Prize, will be chosen by the public through voting that is already open and will close during the ceremony on 17 June 2021.
April 2021 saw a significant increase (51.3%) in applications for trademarks and other distinctive signs of commerce (OSDC) compared to the same period in the previous year, with a total of 2,599 applications filed in April. The same situation was seen in relation to Trademark and OSDC concessions, which recorded a 40.4% increase compared to the first four months of 2020, with 1786 concessions in the month of April alone.
The European Union Intellectual Property Office (EUIPO) has published a call for proposals to support initiatives to raise awareness about the value and benefits of Intellectual Property (IP) and the damage caused by infringements of IP rights. The total amount of funding available for 2021 is €1,000,000 and the deadline for submissions will be 8 June 2021.
As of 19 May 2021, China’s National Institute for Intellectual Property Administration (CNIPA) has made its Trademark data available to the TMview search tool. With the addition of the CNIPA and over 32 million trademarks, TMview now contains the data of 75 participating offices and provides information and access to over 96.4 million trademarks.
INPI has made available several brochures with the objective of clarifying contents regarding Industrial Property (IP), informing about the advantages and importance of IP and helping all interested parties to create a solid base of knowledge on the subjects covered by IP.
A public consultation will be held until 24 June on the potential harmonisation of substantive patent law, with the aim of establishing uniform and global standards that benefit both users and patent offices through increased cooperation between them.
Applications for the third phase of the SME Fund, financial support granted by the EUIPO and the Commission worth 20 million euros in the form of reimbursements, closes at the end of this month.
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS
- V. INDUSTRIAL PROPERTY