I. EDITORIAL – AMENDMENT TO THE JUDICIAL SYSTEM ORGANIZATION LAW; ALTERATION TO THE REGIME APPLICABLE TO THE ORGANIZATION AND FUNCTIONING OF THE JUDICIAL COURTS
In terms of legislation, November was characterised by the approval and publication of Law no. 77/2021 of November 23, which amended the Law on the Organisation of the Judicial System and Decree-Law no. 49/2014 of March 27, which establishes the system applicable to the organisation and functioning of the judicial courts.
Also worthy of note at the legislative level are:
I) Law no. 70/2021, of November 4, which established the exemption from stamp duty on operations to restructure or refinance loans in default.
II) Ordinance no. 249/2021, of November 12, which approved the new Model RC 3048-DGSS, called Annex SS, and the respective Instructions for Completing the form.
In the scope of case law, it is worth mentioning the Judgment of the Guimarães Court of Appeal, of November 4, Case no. 121/20.3T8BCL.G1, which clarified that “In order to conclude that there are false statements on justification of absences due to incapacity for work due to illness, it is necessary to demonstrate the falsity of the statements contained in the incapacity certificate and that the worker knowingly falsified the truth of the facts with a view to deceiving the employer. The fact that the worker does not comply with the conditions relating to the possibility of being away from home, set out in the incapacity certificates, does not in itself imply that the worker is already fit for work“.
In the same context, the Judgement of the Coimbra Court of Appeal, of November 9, Case no. 2769/20.7T8LRA.C1, should also be noted, which decided that the provision of article 6-B, no. 5, paragraph d), of Law no. 1-A/2020, of 19 March, in the wording of that Law no. 4-B/2021, should be interpreted extensively in order to avoid the suspension of the time limits for filing an appeal, arguing nullities or requesting the rectification or reform of the decision, not only the decisions issued during the period of legal suspension of procedural time limits, but also those previously issued whose time limit for appeal had not yet expired.
Finally, regarding Miscellaneous, we highlight Council of Ministers Resolution of November 4, 2021, which approved an extraordinary and exceptional support to the sector of public road transport of passengers, to be supported by the Environmental Fund, in order to mitigate the effects of the cyclical increase in fuel prices.
It is also worth noting the creation, through Decree-Law no. 92-A/2021, of a financial subsidy, of a transitory and exceptional nature, to be granted to citizens for their fuel consumption, using the support platform of the “IVAucher” Program – the so-called “AUTOvoucher”.
II. LEGISLATION
Ordinance no. 231/2021, of November 2: Amends Ordinance no. 203/2021, of September 28, which establishes an indirect cost aid measure in favour of facilities covered by the European Emissions Trading Scheme (EETS), pursuant to Decree-Law no. 12/2020, of April 6.
https://files.dre.pt/1s/2021/11/21200/0000700008.pdf
Decree-Law no. 88/2021, of November 3: Develops the electronic authentication system for citizens “Digital Mobile Key”.
https://files.dre.pt/1s/2021/11/21300/0000600014.pdf
Decree-Law no. 89/2021, of November 3: Regulates norms of the Housing Framework Law regarding the guarantee of alternative housing, the legal right of preference and the inspection of housing conditions.
https://files.dre.pt/1s/2021/11/21300/0001500022.pdf
Council of Ministers Resolution no. 143/2021 of November 3: Approves the pilot project for the implementation of the “legislative footprint” principle within the governmental legislative procedure.
https://files.dre.pt/1s/2021/11/21300/0002300024.pdf
Council of Ministers Resolution no. 144/2021 November 3: Determines the provision of the universal postal service by a single provider throughout the national territory.
https://files.dre.pt/1s/2021/11/21300/0002500029.pdf
Council of Ministers Resolution no. 147/2021, of November 3: Extends until December 2022 the programme “From Housing to Habitat”.
https://files.dre.pt/1s/2021/11/21300/0003700037.pdf
Law no. 70/2021, of November 4: Stamp duty exemption on restructuring or refinancing operations of loans in default.
https://files.dre.pt/1s/2021/11/21400/0000200002.pdf
Ordinance no. 235-A/2021, of November 4: Makes the third amendment to Ordinance no. 246-A/2016, of September 8, regarding the conditions and procedures of the reimbursement and marking regime, respectively, of “professional diesel”.
https://files.dre.pt/1s/2021/11/21401/0000200003.pdf
Decree-Law no. 92/2021, of November 8: Extends the validity of the extraordinary company viability process regime.
https://files.dre.pt/1s/2021/11/21600/0000500006.pdf
Ordinance no. 237/2021, of November 8: Amendment to Ordinance no. 934/2006, of September 8, which approves the Fees Regulation.
https://files.dre.pt/1s/2021/11/21600/0000700013.pdf
Decree-Law no. 92-A/2021, of November 8: Establishes a financial subsidy, of a transitional and exceptional nature, to be granted to citizens for their consumption in the fuel sector.
https://files.dre.pt/1s/2021/11/21601/0000200004.pdf
Decree-Law no. 93/2021, of November 9: Establishes a remuneration supplement based on the performance of duties in hazardous and unhealthy conditions.
https://files.dre.pt/1s/2021/11/21700/0002100023.pdf
Ordinance no. 243/2021, of November 9: Percentage to be allocated to the Tax Stabilisation Fund.
https://files.dre.pt/1s/2021/11/21700/0002800028.pdf
Council of Ministers Resolution no. 152/2021 of November 10: Authorises expenditure on the financial subsidy, of a transitional and exceptional nature, to be granted to citizens for their consumption in the fuel sector.
https://files.dre.pt/1s/2021/11/21800/0000800009.pdf
Ordinance no. 245/2021, of November 10: Ordinance that changes and republishes the official model of the Stamp Duty Monthly Statement and respective instructions for completion.
https://files.dre.pt/1s/2021/11/21800/0001000017.pdf
Ordinance no. 248-A/2021, of November 11: Amendment to the Regulations of the APOIAR Programme.
https://files.dre.pt/1s/2021/11/21901/0000200004.pdf
Law no. 72/2021, of November 12: Allows the use of medically assisted procreation techniques through insemination with semen after the death of the donor, in cases of expressly consented parental projects, amending Law no. 32/2006, of July 26 (medically assisted procreation).
https://files.dre.pt/1s/2021/11/22000/0000300005.pdf
Law no. 73/2021, of November 12: Approves the restructuring of the Portuguese border control system, reformulating the regime of the forces and services that exercise the internal security activity and establishing other rules for the reallocation of powers and resources of the Border and Immigration Service, amending Laws no. 53/2008, of August 29, 53/2007, of August 31, 63/2007, of November 6, and 49/2008, of August 27, and revoking Decree-Law no. 252/2000, of October 16.
https://files.dre.pt/1s/2021/11/22000/0000600013.pdf
Council of Ministers Resolution no. 153/2021 of November 12: Creates extraordinary and exceptional support for the public passenger transport sector in order to mitigate the effects of the escalation of fuel prices.
https://files.dre.pt/1s/2021/11/22000/0002100022.pdf
Ordinance no. 249/2021, of November 12: Approves the new Model RC 3048-DGSS, designated Annex SS, and the respective Instructions for Completion.
https://files.dre.pt/1s/2021/11/22000/0002400027.pdf
Law no. 74/2021, of November 18: Amendment to the framework rules of the Local Economy Support Programme.
https://files.dre.pt/1s/2021/11/22400/0000200003.pdf
Law no. 75/2021, of November 18: Strengthens access to credit and insurance contracts by people who have overcome or mitigated situations of aggravated health risk or disability, prohibiting discriminatory practices and enshrining the right to be forgotten, amending Law no. 46/2006, of August 28, and the legal framework of the insurance contract.
https://files.dre.pt/1s/2021/11/22400/0000400008.pdf
Ordinance no. 255-A/2021, of November 18: Establishes an exceptional and temporary co-payment scheme for rapid antigen tests (TRAg) for professional use.
https://files.dre.pt/1s/2021/11/22401/0000200004.pdf
Ordinance no. 257/2021, of November 19: Regulates the regime of the injunction procedure in matters of lease.
https://files.dre.pt/1s/2021/11/22500/0012700169.pdf
Law no. 77/2021 of November 23: Amends the Law on the Organization of the Judicial System and Decree-Law no. 49/2014 of March 27, which establishes the regime applicable to the organization and functioning of the judicial courts.
https://files.dre.pt/1s/2021/11/22700/0000200005.pdf
Ordinance no. 262/2021, of November 23: Approves the Regulations of the Incentive Scheme for Companies “Promotion of Sustainable Bioeconomy”.
https://files.dre.pt/1s/2021/11/22700/0001400033.pdf
Law no. 78/2021, of November 24: Regime for preventing and combating unauthorised financial activity and consumer protection.
https://files.dre.pt/1s/2021/11/22800/0000300008.pdf
Law no. 79/2021, of November 24: transposes Directive (EU) 2019/713 of the European Parliament and of the Council of 17 April 2019 on combating fraud and counterfeiting of non-cash means of payment, amending the Criminal Code, the Code of Criminal Procedure, Law no. 109/2009, of September 15, approving the Cybercrime Law, and other legislative acts.
https://files.dre.pt/1s/2021/11/22800/0000900038.pdf
Ordinance no. 267/2021, of November 26: Revises the regulations on procedures for entering into advance pricing agreements (APAs), under article 138 of the IRC Code.
https://files.dre.pt/1s/2021/11/23000/0001000020.pdf
Ordinance no. 268/2021, of November 26: Revises the transfer pricing regulations in operations carried out between an IRS or IRC taxpayer and any other entity, under article 63 of the IRC Code.
III.1. Court of Justice of the European Union
Judgment of the Court of Justice of the European Union of November 18, Case C-413/20: Reference for a preliminary ruling. Air transport. Regulation (EU) No 1178/2011. Technical requirements and administrative procedures applicable to civil aviation crews. Annex I, Appendix 3, point A, paragraphs 9 and 10. Commercial pilot licence training course. In-flight training. Instrument ground time. Calculation Simulator training. Skill test. Principle of legal certainty. Limitation in time of the effects of a preliminary ruling.
Summary:
“1) Annex I, Appendix 3, point A, paragraph 9(e) of Commission Regulation (EU) No 1178/2011 of 3 November 2011 laying down technical requirements and administrative procedures for civil aviation aircrew in accordance with Regulation (EC) No. No 216/2008 of the European Parliament and of the Council, as amended by Commission Regulation (EU) 2018/1119 of 31 July 2018, must be interpreted as meaning that, in order to calculate the 115 hours of instrument time provided for in that provision, it is not possible to count more than 55 hours of instrument time on the ground.
2) Annex I, Appendix 3, point A, paragraph 2011, to Regulation No 1178/2011, as amended by Regulation 2018/1119, must be interpreted as meaning that, in the event that an applicant has successfully completed the skill test before having completed all the required training hours, the CPL(A) licence can be granted to him only after he has completed his training and repeated the corresponding skill test.”
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62020CJ0413
Judgment of the Court of Justice of the European Union of November 18, Case no. C-358/20: Reference for a preliminary ruling. Harmonisation of tax laws. Common system of value added tax (VAT). Directive 2006/112/EC. Right to deduct VAT. Cancellation of the VAT identification of a taxable person. Refusal of the right to deduct. Formal conditions.
Summary:
“Article 168, Article 213(1), Article 214(1) and Article 273 of Council Directive 2006/112/EC of 28 January 2006 on the harmonisation of the laws of the Member States relating to turnover taxes. Article 168, Article 213(1), Article 214(1) and Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, and the principle of the neutrality of value added tax (VAT), read in the light of the principles of legal certainty, the protection of legitimate expectations and proportionality, must be interpreted as meaning that they do not preclude in a case in which a taxable person’s VAT identification has been cancelled as a result of a failure to declare taxable transactions in his VAT returns submitted in respect of six consecutive months, but where that taxable person continues his activities despite that cancellation, national legislation which enables the competent tax authority to require that taxable person to charge the VAT due on his taxed transactions, provided that he may request a new VAT identification and deduct the input VAT. The fact that the taxable person’s administrator is a partner in another company subject to insolvency proceedings cannot, as such, be relied on in order systematically to refuse that taxable person new identification for VAT purposes’.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62020CJ0358
Judgment of the Court of Justice of the European Union of November 24, Case no. C-564/19: Reference for a preliminary ruling. Judicial cooperation in criminal matters. Directive 2010/64/EU. Article 5. Quality of interpretation and translation. Directive 2012/13/EU. Right to information in criminal proceedings. Article 4(5) and Article 6(1) Right to information about the accusation. Right to interpretation and translation. Directive 2016/343/EU. Right to an effective remedy and to a fair trial. Article 48(2) of the Charter of Fundamental Rights of the European Union. Article 267 TFEU. Article 19(1), second subparagraph, TEU. Admissibility. Appeal in the interest of the law from a decision making a reference for a preliminary ruling – Disciplinary proceedings – Power of the higher court to declare the reference for a preliminary ruling unlawful.
Summary:
“1) Article 267 TFEU must be interpreted as precluding the supreme court of a Member State from declaring, following an appeal in the interest of the law, that a reference to the Court of Justice for a preliminary ruling made by a lower court under that provision is unlawful on the ground that the questions referred are not relevant and necessary to the resolution of the dispute in the main proceedings, without, however, affecting the legal effects of the decision containing that reference. The principle of the primacy of European Union law requires that lower court not to apply that decision of the highest national court.
2) Article 267 TFEU must be interpreted as precluding disciplinary proceedings from being brought against a national court on the ground that it made a reference to the Court of Justice for a preliminary ruling under that provision.
3) Article 5 of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings must be interpreted as requiring the Member States to take concrete measures to ensure that the quality of the interpretation provided and of the translations provided is sufficient to enable the suspect or accused person to understand the accusation against him and that that interpretation is subject to review by the national courts.
4) Article 2(5) of Directive 2010/64, Article 4(5) and Article 6(1) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, read in the light of Article 48(2) of the Charter of Fundamental Rights of the European Union, must be interpreted in such a way as to ensure that the interpretation provided is sufficient to enable the suspect or accused person to understand the accusation against him and to enable that interpretation to be subject to review by the national courts. Article 47(2) of the Charter of Fundamental Rights of the European Union must be interpreted as precluding a person from being tried in absentia where, owing to an inadequate interpretation, he has not been informed, in a language which he understands, of the charge against him or where it is impossible to determine the quality of the interpretation provided and, therefore, to establish that he has been informed, in a language which he understands, of the charge against him.”
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62019CJ0564
III.2 Constitutional Court
Judgment of the Constitutional Court No. 850/2021, of November 5, Case no. 1111/2021:
Declares that it has no jurisdiction to hear and determine the appeal, since the deliberation of the National Electoral Commission that is part of its subject matter cannot be challenged before the Constitutional Court.
http://www.tribunalconstitucional.pt/tc/acordaos/20210850.html
Judgment of the Constitutional Court No. 852/2021, of November 5, Case no. 1113/2021:
It does not allow an appeal against a decision of the National Electoral Commission as it does not constitute, in any of its two aspects, an electoral administration act susceptible of being challenged.
Declares that it has no jurisdiction to hear and determine the appeal, since the deliberation of the National Electoral Commission that is part of its subject matter cannot be challenged before the Constitutional Court.
http://www.tribunalconstitucional.pt/tc/acordaos/20210852.html
Judgment of the Constitutional Court No. 856/2021, of November 9, Case no. 1048/2021:
Following the delivery of Judgment 285/2021, the parties were notified to, if they so wished, submit allegations as to the invoked unconstitutionality of the rule contained in Article 12 of the legal regime that approved the Extraordinary Contribution on the Energy Sector (CESE), approved by Article 228 of Law no. 83-C/2013, of 31 December, and which was applied in the appealed decision. Only the Appellant has claimed, defending that the prohibition of the deduction of the CESE on corporate income tax, contained in Article 12 of the regime of the tax, determines that it is a true tax, due to its alleged particular contribution capacity, and for such, the CESE is materially unconstitutional, for violation of the principle of contribution capacity, sub-principle in which the constitutional principle of Equality (Article 13 of the Constitution) is concretized in the field of taxes. Its subjective tax base affects taxpayers who have little or nothing to do with the declared purposes of the “contribution”.
When analysing the issue, the Court decided, citing Ruling no. 301/2021, that the allegations produced by the appellant deviated from the initial configuration of the problem, by directing only censure to the rules of subjective and objective incidence of the tax – which had already been subject of appreciation in Summary Decision no. 229/2020.
Therefore, the Court concluded that the issue of unconstitutionality of Article 12 of the legal regime of the EESC, as raised in the complaint filed against this summary decision, is manifestly unfounded.
http://www.tribunalconstitucional.pt/tc/acordaos/20210856.html
Judgment of the Constitutional Court no. 858/2021, of November 9, Case no. 1028/2021:
Following the appeal to the Constitutional Court from the Guimarães Appeal Court, the appellant asked the Constitutional Court to “assess the unconstitutionality of article 374 of the Code of Criminal Procedure (CPP) when applied in the sense that proven and unproven facts do not have to determine the circumstances of time and place in which the offences imputed to the accused occurred” – thus delimiting, as the object of the appeal, a particular normative interpretation of article 374 of the CPP which he understands to have sustained the decision of the court of first instance.
In this regard, the Constitutional Court considered that the appealed decision did not at any point formulate the alleged interpretation whose constitutionality is questioned by the now complainant, and concluded that the constitutionality appeal was inadmissible, as the appellant had not raised any question of unconstitutionality before the appealed court, and also because the rule under review did not correspond to the ratio decidendi of the appealed decision.
http://www.tribunalconstitucional.pt/tc/acordaos/20210858.html
III.3. Courts of Justice
Judgment of the Supreme Court of Justice, of November 9, Case no. 352/16.0T8VFX-Y.L1.S1: Insolvency administrator. Removal from office. Interlocutory decision. Decision that does not end the proceeding. Review appeal. Admissibility of appeal. Presupposition. Nullity of judgment. Rejection of appeal. Right to appeal. Principle of proportionality. Constitutionality.
Summary:
“I – The request for dismissal of the insolvency administrator, as follows from the regime laid down in the CIRE (cf. article 56 and respective systematic insertion), integrates an incident inserted in the main insolvency proceeding, the appeal being subject to the regime of article 14(1) of the CIRE.
II – Even if this is not the case, it is to be considered that the appellate decision, which appraises the decision that rejects the request, does not consider the merit, nor does it terminate the process (art. 671(1) of the CPC), but rather appraises an interlocutory decision on the procedural relationship.
III – In this case, the “continued” review will only be admissible under the terms of Article 671(2), of the CPC.
IV – The alleged nullities, although they may constitute grounds for the appeal (Article 674(1) (c), of the CPC), may not serve as exclusive grounds for its admissibility.
V – The requirement of contradiction of judgments (cf. article. 14 (1), of CIRE or article 671(2), of the CPC), as an admissibility requirement of the appeal is not arbitrary or disproportionate and does not violate any principle constitutionally consecrated”.
Judgment of the Supreme Court of Justice, of November 3, Case no. 3736/19.9T8VFX.L1.S1: Special company recovery proceedings. Relevant issue. Useless act. Impaired knowledge. Object of the appeal. Subordinated credit. Common credit. Reorganization plan.
Summary:
“I – If the PER is not homologated, the discussion on the nature of common and/or subordinate credit of a claim, as well as its credit nature, becomes completely extravagant.
II – A different situation would be if the plan had been approved, given that the aforementioned classification would always have relevance in terms of precedence of payments, as is clear from the normative included in article 48 of the CIRE.
III – But if the complainant/appellant did not question this operative part of the Judgement, e.g., the non-approval of the PER, the assessment of the object of the appeal is completely prejudiced”.
Judgment of the Lisbon Court of Appeal, of November 4, Case no. 2299/21.0YRLSB-2: Car insurance contract. Alteration of risk coverage. Notice.
Summary:
“I. It is not for the Appeal Court to take into consideration facts that were not alleged or discussed before the arbitral Court and which are not included in the matter of fact indicated in the contested award, nor are of its own motion known.
II. In the absence of an agreement authorising it, the effectiveness of a unilateral amendment to an insurance contract by the insurer, in this case the exclusion of cover for own damage in a motor vehicle insurance contract, is not produced by a mere written communication sent to the address of the policyholder, the latter remaining silent.
III. The effectiveness of a negotiating declaration sent by simple letter depends on its receipt by the addressee, namely its deposit in the respective postal addressee.
IV. Notwithstanding the natural presumption that, as a rule, the letter arrives at the address indicated therein, the burden of proving such deposit lies with the creditor, should the addressee question the receipt of the letter and produce evidence thereon”.
Judgment of the Guimarães Court of Appeal, of November 4, Case no. 121/20.3T8BCL.G1: Unjustified Discharge. False statements. Certificate of temporary incapacity. Medical certificate.
Summary:
“I. In order to conclude that there were false statements regarding justification of absences due to incapacity for work due to illness, it is necessary to demonstrate the falsity of the statements contained in the certificate of incapacity and that the worker knowingly falsified the truth of the facts with a view to deceiving the employer.
II. The fact that the worker does not comply with the conditions relating to the possibility of being absent from home, set out in the incapacity certificates, does not in itself imply that he or she is already fit for work”.
Judgment of the Court of Appeal of Coimbra, of November 9, Case no. 2769/20.7T8LRA.C1: Covid 19. Suspension of procedural deadlines.
Summary:
“I. – The legislation suspending procedural deadlines within the scope of the measures to control the Covid 19 pandemic aimed at preventing the spread of the virus, whose contagion essentially occurs through personal contacts.
II. However, with the legislation adopted in 2021 (Law no. 4-B/2021, of 01-02) an attempt was made to attenuate the negative effects of the suspension of time limits resulting from the exceptional legislation that came into force in 2020.
III. – Therefore, the provision of Article 6-B (5), paragraph d), of Law no. 1-A/2020, of 19-03, in the wording of that Law no. 4-B/2021, should be interpreted extensively, so as to contemplate – for the purposes of non-suspension of time limits for filing an appeal, arguing nullities or requesting rectification or reform of the decision – not only decisions issued during the period of legal suspension of procedural time limits, but also those previously issued whose time limit for appeal had not yet expired.
IV. Thus, in relation to a sentence handed down prior to 22/01/2021, but whose appeal period was running on that date, there is no suspension of that period and consequent paralysis of the proceedings, which is understandable, given the public health reasons, in light of the interest of procedural speed and the prompt implementation of justice, as well as in view of the requirements of equal treatment”.
Judgment of the Court of Appeal of Coimbra, of November 9, Case no. 350/09.TBMBR-C.C1: Service by writ of summons. Executive process.
Summary:
“I. – The service by writ of summons of the defendant in enforcement proceedings depends on the verification of the impossibility of personal service, due to the defendant’s absence in an uncertain place, and is the last resort as regards the legal instruments of summons, since it is a “very precarious and contingent […] form of summons”, not generating confidence “as an effective means of informing the defendant that a certain action has been brought against him”.
II. As it was not possible, in this case, to ascertain whether the defendant/citing party actually resided there, at either of the two addresses provided (the neighbours at the first address stated that no-one had resided there for more than two years and at the second address the other residents were unaware of the identification of the property’s residents), the situation was, therefore, one of uncertainty as to the effective address – and real whereabouts – of the defendant.
III. – As such, given that the possibility of the defendant residing, for the time being, at one of those addresses is not excluded, one cannot conclude, without further diligence – namely, as a last resort, the obtaining of information from the police authorities – that there is absence in an uncertain place, in terms in which one cannot opt for the service by edict”.
Judgment of the Supreme Court of Justice of November 10, Case no. 2475/18.2T8VFX-A.L1.S2: Exceptional Review. Legal relevance. Interests of particular social relevance.
Summary:
“The exceptional review appeal must be rejected outright when no concrete and objective reasons have been stated revealing any possible complexity or jurisprudential or doctrinal controversy of the issue, with the consequent need for an exceptional assessment with the aim of finding a solution that will guide similar cases.”
Judgment of the Court of Appeal of Coimbra, of November 10, Case no. 294/18.5GAACB.C1: Organized and economic-financial crime. Extended forfeiture of assets. Seizure. Purpose of seizure. Periculum in mora.
Summary:
“I – In the field of organised and economic-financial criminality, in the case of extended loss of assets, the decree of seizure (Article 10 of Law No. 5/2002, of 11-01, as amended by Law No. 30/2017, of 30-05), does not depend on the verification of periculum in mora, the founded fear of loss or substantial decrease in the guarantees of payment of the incongruous amount.
II – The new wording conferred to Article 10 (2) by Law no. 30/2017 must be understood as an additional requirement, special when compared with the one resulting from the general rule contained in no.3 of the same article, restricted to seizure requested before liquidation.
III – The seizure provided for in that rule (Article 10), whose sole purpose is to guarantee payment of the amount presumed to be an advantage of the criminal activity, applies, without any limitation, to assets owned by the defendant, which are not themselves the subject of the extended confiscation declaration”.
III.4. Administrative and Tax Court
Judgment of the Supreme Administrative Court, of November 4, Case no. 06/21.6BALSB-A: Disciplinary proceedings. Enquiry proceedings. Guarantees of defence.
Summary:
“From article 214 of the former-EMP (270 of the new EMP) it expressly results that when the Magistrate of the Public Prosecutor’s Office is heard in the enquiry procedure, the same may become “the instructive part of the disciplinary procedure””.
Judgment of the Supreme Administrative Court of November 4, Case no. 0362/20.3BEMDL-S1: Public Procurement. Pre-contractual litigation. Suspensive effect. Serious damage to the public interest. Fighting forest fires.
Summary:
“I – The lifting of the automatic suspensive effect provided for in article 103(1) of the CPTA, at the request of the defendant entity, depends on demonstration of the seriousness of the damage that deferring execution of the act is likely to cause to the public interests defended by it in the proceedings.
II – The precaution inherent to the anticipated prevention of forest fire risks constitutes sufficient justification for the suspension of the awarding act to be lifted”.
Judgment of the Supreme Administrative Court, of November 4, Case no. 01960/20.0BEPRT: Object of the judicial review. New issue.
Summary:
“I – If the first-instance court only assessed and decided the issue raised by the Plaintiff, when challenging the grounds of the act of exclusion of her bid from the tendering procedure, practiced by the contracting authority, the Counterparty, expressly agreeing with the Plaintiff as to the illegality of such grounds for exclusion, cannot appeal against that judgment invoking, in the appeal, that another different cause of exclusion of the Plaintiff’s bid would impose the same decision by the contracting authority.
II – This case deals with the invocation of a “new issue” that was not examined in the contested decision (and that was also not examined in the administrative tender procedure), it being understood that the purpose of appeals is to examine contested decisions and not to examine “new issues” that were not examined in the contested decisions – articles 627 (1), 635 (2) and (3) and 639 (1) of the CPC, applicable “ex vi” of article 140 (3) of the CPTA.
III – Thus, this new issue – which is not known of its own motion – could not be known by the TCAN as an appellate court, as it is not known by the Supreme Administrative Court as a court of review appeal, since, moreover, if it were not, these courts would function as courts of first instance in relation to this ‘new issue'”.
Judgment of the Supreme Administrative Court, of November 10, Case no. 0209/13.7BECTB: Municipal Tax on the Onerous Transmission of Real Estate. Effects.
Summary:
“I – According to Article 38(1) of the LGT, the tax effects refer to the moment when the legal transactions produce the economic effects intended by the parties;
II – Article 36(4) of the LGT states that the classification of a legal transaction by the parties is not binding on the AT;
III – The circumstance of “qualifying” a second deed as a rectification of the first as to the value of the buildings exchanged does not bind the AT to recognise the “rectification” of the value of the properties that were exchanged for the purposes of taxation of the respective transfer.”
Judgment of the Supreme Administrative Court, of November 10, Case no. 0190/14.5BELRS: IRC. Expiry of assessment. Coercive assessment. New assessment.
Summary:
“I – The assessment act that is performed before the request for review of the taxable amount established by indirect methods is definitively decided is illegal – Article 91(2) of the General Tax Law;
II – Consequently, the annulment of the decision preliminarily rejecting the request for review of the taxable amount by indirect methods implies the annulment of the subsequent assessment;
III – If, following the annulment of the preliminary rejection of the request for revision, an order is issued fixing the taxable amount using indirect methods, the subsequent additional assessment must be made within the limitation period of the previously annulled assessment”.
IV. BRIEFS
IV.1. DOCTRINE
IV.1.1. Monographs and Periodic Publications
João de Travassos, O Presidente (da Mesa) da Assembleia Geral, Almedina, novembro de 2021.
Sofia Patricia Travasso de Feitas Alcaide, A Responsabilidade Civil por Danos Causados por Veículos Autónomos, Almedina, novembro de 2021.
Carlos Cunha de Sousa, As Notificações em Procedimento Tributário, Almedina, novembro de 2021.
Artur Flamínio da Silva (Coordenação), Direito Administrativo e Tecnologia, 2ª edição, Almedina, novembro de 2021.
Guilherme de Oliveira, com a colaboração de Rui Moura Ramos, Manual de Direito da Família, Almedina, novembro de 2021.
Jorge Manuel Loureiro, Processo Judicial de Acidente de Trabalho – Momentos Prévios e a Fase Conciliatória – Notas Práticas Essenciais, Almedina, novembro de 2021.
Ricardo Nascimento, Cedência Ocasional de Trabalhadores – Configuração Geral e Problemas Actuais, Almedina, novembro de 2021.
Ana Sirage Coimbra, Regime Jurídico das Contraordenações Económicas – Anotado, Almedina, novembro de 2021.
Carolina Cunha, A Par Condicio Creditorum como Igualdade Formal dos Credores: Expectativa Vs Realidade – Do Cumprimento Voluntário À Insolvência-Liquidação, Almedina, novembro de 2021.
Clotilde Celorico Palma (Coordenação), Estudos em Homenagem ao Professor Doutor António Carlos dos Santos, Almedina, novembro de 2021.
João Pacheco de Amorim, Introdução ao Direito dos Contratos Públicos, Almedina, novembro de 2021.
Cláudio Cardoso, O Regime da CPAS e o Regime dos Trabalhadores Independentes – Notas Práticas Sobre Sistemas Contributivos e Prestações Diferidas, Almedina, novembro de 2021.
Maria Elisabete Ramos, O Contrato de Seguro Entre a Liberdade Contratual e o Tipo, Almedina, novembro de 2021.
Ricardo Pedro, Fundos Europeus: Plano de Recuperação e Resiliência, Almedina, novembro de 2021.
Jorge Pinto Furtado, Comentário ao Regime Arrendamento Urbano, 3ª Edição Revista e Atualizada, Almedina, novembro de 2021.
IV.1.2. Generic Guidelines & Cia
Circulated Letter no. 30242 of 03-11-2021, by dispatch of the Subdirector General of the Tax Management Area – VAT.
Subject: VAT – List of gold coins.
Circulated Letter no. 351/2021.XXII, of 10-11-2021, by dispatch of the Assistant Secretary of State and Tax Affairs.
Subject: Adjustment of the tax calendar for 2021/2022.
Circulated Letter no. 30243, of 11-11-2021, by dispatch of the Subdirector General of the Tax Management Area – VAT.
Subject: VAT – Deadline for submission of periodic declaration and payment of the respective tax. Single document code (ATCUD) and communication of series. Invoices in PDF.
IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation
Earlier this month, the Government, through the Council of Ministers Communication of 4 November 2021, approved the creation of an extraordinary and exceptional support to the public road passenger transport sector, to be supported by the Environmental Fund, with a view to mitigating the effects of the cyclical increase in fuel prices.
“The support covers vehicles licensed by the Institute of Mobility and Transport (IMT) for public road transport of passengers – taxis and buses – being paid in advance and in a single payment until the end of 2021. The approved support corresponds to a value of 10 cents/litre, supporting each licensed taxi at 190 euros (assuming consumption of 380 litres per month) and at 1050 euros each heavy public passenger transport vehicle (assuming consumption of 2,100 litres of fuel per month),” the statement added.
To apply for support, vehicle operators must complete the form available on the Environmental Fund website by 30 November 2021, submitting the necessary documentation for the operationalisation of the support.
On 8 November, Decree-Law no. 92-A/2021 was published in the Diário da República (Official Gazette), establishing a financial subsidy, of a transitory and exceptional nature, to be granted to citizens for their fuel consumption, using the support platform for the “IVAucher” Programme – the so-called “AUTOvoucher” – which came into effect on November 1- the date on which traders were able to start signing up for the AUTOvoucher.
Later, on the 10th of November, Resolution no. 152/2021 of the Council of Ministers was published, authorizing the expenditure relative to that subsidy.
Thus, as of this date, taxpayers could start benefiting from the AUTOvoucher discount, in the value of 10 cents per litre of fuel, for a total of 50 litres per month, on fuel consumptions at petrol stations.
To do so, they just need to be enrolled in the IVAucher Programme. After the first consumption of the month in a participating petrol station, regardless of its value, the total discount will be reimbursed in the taxpayer’s bank account, within a maximum of two working days.
The Autumn Economic Forecasts of the European Commission (EC), published on 11 November, revised upwards the estimates of GDP growth for Portugal in 2021 and 2022, confirming the prospects of strong economic recovery in the country, in line with the estimates presented in the draft State Budget for 2022.
The EC points to a growth of the Portuguese economy of 4.5% and 5.3% in 2021 and 2022, respectively, compared to 3.9% and 5.1% in the previous forecasts.
The EC estimates confirm that Portugal will again grow significantly above the euro zone in 2022, with a growth of 5.3%, 1 p.p. above the euro zone (4.3%).
V. INDUSTRIAL PROPERTY
GAPI – Offices for Support to the Promotion of Industrial Property has today a new trademark registered at the EUIPO – European Union Intellectual Property Office, following a registration request formalized by INPI. The new trademark is protected under Classes 41 and 45 of the Nice Classification, training services for awareness in Industrial and Intellectual Property and information and valorisation services of Industrial and Intellectual Property, respectively.
The GAPI are a fundamental part in the promotion and dissemination of the importance of the use of industrial property (IP).
https://inpi.justica.gov.pt/Noticias-do-INPI/GAPI-tem-nova-Marca-registada-da-Uniao-Europeia
The 35th edition of “BVT Ocean Energy”, published under the Iberian project between the national institutions that grant industrial property rights in Portugal and Spain, respectively, the National Institute of Industrial Property (INPI) and the Spanish Patent and Trademark Office (OEPM), is now available.
BVT aims to provide quarterly monitoring of the latest news and publications of international Patent Applications (PCT) and European Patents (EP), in the technical field of ocean energy.
https://inpi.justica.gov.pt/Noticias-do-INPI/35%C2%AA-edicao-do-BVT-Oceanicas-ja-esta-disponivel
Centromarca – Portuguese Association of Branded Products Companies launches, for the fourth consecutive year, the ‘Journalism that Trademarks’ award. INPI is associated to this initiative, with the President of the Institute being among the jury members.
This award, worth 2.500 euros, aims to recognise journalistic work that addresses important themes in the area of trademarks and their economic and social environment. It is aimed at journalists with a professional card, authors of the best individual or collective work published in any media outlet operating in Portugal, regardless of the medium used – press, radio, television or digital -, which addresses relevant aspects for brands, the market or the consumer. The deadline for applications runs until 28 February 2022.
The European Patent Office (EPO), in collaboration with INPI, organises, on November 30, an online roundtable discussion dedicated to the topic – Medical diagnostics and related technologies.
This session is intended primarily for users of the patent system in Portugal, who will be able to clarify their questions about patent applications in the area of medical diagnostics and related technologies.
During the session, which will take place via zoom, users will have the opportunity to address what technologies are involved in this area, what is the patenting activity in this field, how emerging technologies interact with exclusively medical matters and what are the challenges that result from this for patent applicants and for the Patent Office itself.
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