I. EDITORIAL – AMENDMENT OF THE EXCEPTIONAL AND TEMPORARY MEASURES IN THE CONTEXT OF THE COVID-19 PANDEMIC
The month of September was characterised, at the legislative level by Decree-Law no. 78-A/2020, of September 29, which brought another amendment of the exceptional and temporary measures relating to the COVID-19 disease pandemic.
It is also worth mentioning, at the legislative level, Law no. 58-A/2020, of September 30, which extended the extraordinary regime of protection for tenants until the end of 2020.
In the case-law field, it is worth highlighting the Judgement of the Lisbon Court of Appeal of September 15, Case no. 16642/11.6T2SNT-A-7, which ruled on the enforceability of financial obligations assumed in a sharing agreement and on the possibility of the latter to constitute an enforcement title, under the terms of Article 46, paragraph c) of the former Civil Procedure Code (1961), applicable pursuant to the Judgement of the Constitutional Court no. 408/2015.
It is also relevant to note the Judgement of the Supreme Administrative Court of September 16, Case no. 02056/09.1BELRS 0515/18, in which was discussed the exemption of the Municipal Tax on Real Estate Transfer (“IMT”), for purchase and sale on behalf of the lessee, in the exercise of option to purchase right provided in the legal regime of the leasing contract.
In the context of Miscellaneous, we would like to highlight the Council of Ministers approval of the Decree-Law which amends the exceptional and temporary measures in the scenario of COVID-19 disease pandemic.
Declaration of Rectification no. 34/2020 of September 1: Declaration of Rectification to Law no. 48/2020 of 24 August «Amends the Individual Income Tax Code and Law no. 119/2019 of 18 September».
Ordinance no. 208/2020, of September 1: Proceeds with the first amendment to Ordinance no. 773/2009, of July 21, which defines the procedure for the registration, with the National Emergency and Civil Protection Authority, of the entities whose object is the marketing, installation or maintenance of fire safety equipment and systems in buildings.
Ordinance no. 210/2020, of September 3: Approves (i) the model card for former combatants, intended for military and ex-military personnel referred to in Article 2 of Annex I to Law no. 46/2020, of August 20; (ii) the model card for widows or widowers of former combatants referred to in Article 7 of Annex I to Law no. 46/2020, of 20 August, which is included in Annex II to this order.
Decree-Law no. 62-A/2020, of September 3: Amends the exceptional and temporary measures relating to the COVID-19 pandemic.
Decree-Law no. 63/2020, of September 7: i) Regulates the activity and functioning of «Banco Português de Fomento, S. A.» (BPF) and approves its Articles of Association; ii) Defines the terms and merges by incorporation «PME Investimentos – Sociedade de Investimento, S. A., and IFD – Instituição Financeira de Desenvolvimento, S. A.» (IFD, S. A.), into «SPGM – Sociedade de Investimento, S. A.» (SPGM), which will now adopt the firm of «Banco Português de Fomento, S. A.».
Ordinance no. 213/2020, of September 7: Establishes: a) the requirements and procedures for the certification of training bodies and of initial and continuing training courses for obtaining and renewing the licence to drive locomotives and trains on the railway system, hereinafter referred to as “train drivers”, and for specific training courses for the endorsement of complementary certificates; b) the requirements to be met by the training centres and the conditions for organising and communicating the training courses referred to in a); c) the administrative measures applicable to training bodies in the event of breaches of the obligations to which they are subject, as well as failure to provide courses in accordance with the content and organisation laid down in this order.
Ordinance no. 214/2020, of September 7: Establishes i) the requirements and procedures for the recognition of entities providing services in the medical and psychological fields wishing to carry out medical examinations and psychological assessments of train drivers and train drivers on the railway system; ii) the administrative offences and ancillary penalties applicable to medical and psychological assessment entities, in the event of violation of the duties to which they are bound by this ordinance, as well as for non-compliance with the recognition requirements.
Council of Ministers Resolution no. 69/2020, of September 9: Extends the support of the Government of the Republic in the framework of the Economic Revitalisation Plan for Terceira.
Decree-Law no. 64/2020, of September 10: Establishes provisions on energy efficiency, transposing Directive (EU) 2018/2002.
Ordinance no. 215/2020, of September 10: Approves the new model of the recapitulative statement referred to in Article 29(1)(i) of the VAT Code and Article 30(1)(c) of the VAT arrangements for intra-Community transactions and the instructions for completing it, which are published in the Annex.
Decree-Law no. 65/2020, of September 11: Alters the public interest recognition of «Atlântica – Escola Universitária de Ciências Empresariais, Saúde, Tecnologias e Engenharia» (University School of Business, Health, Technology and Engineering), which now has the nature of a university institute and is called «Atlântica – Instituto Universitário».
Council of Ministers Resolution no. 70-A/2020, of September 11: Declares the contingency situation in the framework of the COVID-19 pandemic.
Decree-Law no. 66/2020, of September 14: Ensures the implementation and enforcement in national law of the obligations arising from Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013, hereinafter the Regulation on ship recycling, amending Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste and Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control.
Decree-Law no. 67/2020, of September 15: Ensures the implementation and enforcement of the obligations arising from regulation 2016/2031 on plant pest protection measures and Regulation 2017/625 on official controls in the field of plant pest protection measures.
Decree-Law no. 68/2020, of September 15: Undertakes the third amendment to Decree-Law no. 14-G/2020 of 13 April, amended by Decree-Law no. 20-H/2020 of 14 May, and by Law no. 20/2020 of 1 July, which establishes the exceptional and temporary measures in the area of education, in the context of the COVID-19 disease pandemic.
Decree-Law no. 69/2020, of September 15: Establishes the terms for the integration into the staff charts of the Regional Coordination and Development Committees (RCDC) of the workers integrated into the specific staff chart of the Agency for Development and Cohesion, I. P. (Agency, I. P.), relating to the regional operational programmes referred to in Article 6(1) and Article 8 of Decree-Law No. 34/2018 of 15 May, as currently drafted.
Council of Ministers Resolution no. 71/2020, of September 15: Approves the 8th generation of the “Choices Programme” for the period 2021 to 2022.
Ordinance no. 218-A/2020, of September 16: Amends Ordinance no. 392/2019, of November 5, laying down the minimum licensing, installations, organization and functioning requirements human resources and technical facilities of clinical pathology laboratories, analyses, as well as its harvest stations.
Decree-Law no. 70/2020, of September 16: Appropriates the schemes for anticipating the age of old-age pension general social security scheme, with regard to the age of access to the old-age pension the application of the sustainability factor, taking into account the amendments made to the flexible age of old-age pension by Decree-Law no. 119/2018, of December 27.
Decree-Law no. 71/2020 of September 17: Defines the terms of the regularization of real estate assets the Portuguese Institute of Quality I. P. (“IPQ, I.P.), as well as the necessary procedures for that purpose.
Ordinance no. 220/2020, of September 21: Updates the devaluation coefficients of the currency applicable to the assets and rights disposed of during 2020.
Decree-Law no. 74/2020, of September 24: Amends the VAT rate applicable to electricity supplies in relation to certain consumption levels and power at normal low voltage.
Decree-Law no. 78-A/2020, of September 29: a) The twenty-first amendment to Decree-Law no. 10-A/2020, of March 13, laying down exceptional and temporary measures relating to the epidemiological situation of the new coronavirus — COVID-19; b) The fourth amendment to Decree-Law no. 10-J/2020, of March 26, amended by Law no. 8/2020 of 10 April, by Decree-Law no. 26/2020 of June 16, and Law no. 27-A/2020 of July 24, establishing exceptional measures to protect family claims, private institutions of social solidarity, and other entities of the social economy, as well as a special regime of personal guarantees of the State, within the framework of the Covid-19 pandemic disease; c) The first amendment to Decree-Law no. 20-F/2020, of May 12, establishing an exceptional and temporary regime for insurance contracts; d) The first amendment to Decree-Law no. 37/2020 of July 15, establishing social support measures under the Economic and Social Stabilisation Programme; e) Extends the effects of Article 5-A(1) of Decree-Law no. 10-I/2020 of March 26, in force.
Council of Ministers Resolution no. 81/2020 of September 29: Extends the declaration of the contingency situation in the context of the COVID-19 disease pandemic.
Law no. 58-A/2020 of September 30: Proceeds with the sixth amendment to Law no. 1-A/2020 of March 19, on exceptional and temporary measures in response to the epidemiological situation caused by coronavirus SARS-CoV-2 and COVID-19 disease, amended by Law no. 4-A/2020 of April 6, Law no. 4-B/2020 of April 6, Law no. 14/2020, of May 9, and 28/2020, of July 28, extending the extraordinary regime of protection of tenants until the end of 2020.
III.1. Court of Justice of the European Union
Judgement of the Justice Court of September 3, Case C-719/18: Reference for a preliminary ruling. Electronic communications. Article 11(2) of the Charter of Fundamental Rights of the European Union. Freedom and pluralism of the media. Freedom of establishment. Article 49 TFEU. Directive 2002/21/EC. Articles 15 and 16. National legislation prohibiting an undertaking which has significant market power in a sector from establishing a ‘significant economic dimension’ in another sector. Calculation of revenues received in the electronic communications sector and the media sector. Definition of the electronic communications sector. Restriction to markets which have been subject to ex ante regulation. Account taken of the income of affiliated companies. Fixing of different income thresholds for undertakings active in the electronic communications sector.
“Article 49 TFEU must be interpreted as precluding legislation of a Member State which has the effect of preventing a company registered in another Member State, the revenue of which in the electronic communications sector, as defined for the purposes of that legislation, is in excess of 40% of the total revenues generated in that sector, from earning, within the integrated communications system, revenue which exceeds 10% of the total revenues generated in that system.”.
Judgement of the Justice Court of September 3, Case C-356/19: Reference for a preliminary ruling. Air transport. Regulation (EC) No 261/2004. Article 7. Right to compensation in the event of delay or cancellation of a flight. Compensation procedure. Claim expressed in national currency. National provision prohibiting the creditor from choosing the currency.
“Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, and in particular Article 7(1) thereof, is to be interpreted as meaning that passengers whose flights have been cancelled or subject to a long delay or their legal successors may demand payment of the amount of the compensation referred to in that provision in the national currency of their place of residence, so that that provision precludes a Member State’s legislation or case-law which results in the dismissal of an action brought for that purpose by such passengers or their legal successors on the sole ground that the claim was expressed in that national currency.”.
Judgement of the Justice Court of September 3, Case C-530/19: Reference for a preliminary ruling. Air transport. Regulation (EC) No 261/2004. Articles 5 and 9. Obligation of the air carrier to offer hotel accommodation to passengers whose flights have been cancelled. Damage suffered by a passenger during her stay at the hotel providing the accommodation. Possibility of invoking the liability of the air carrier as a result of negligence on the part of employees of the hotel.
“1) Article 9(1)(b) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that the obligation of the air carrier under that provision to offer hotel accommodation free of charge to the passengers referred to therein does not mean that that carrier is required to take care of the accommodation arrangements as such.
2) Regulation No 261/2004 must be interpreted as meaning that an air carrier which, under Article 9(1)(b) of that regulation, has offered hotel accommodation to a passenger whose flight has been cancelled cannot be required, on the basis of that regulation alone, to compensate that passenger for damage caused by fault on the part of employees of that hotel.”.
Judgement of the Justice Court of September 17, Case C-791/18: Reference for a preliminary ruling. Value added tax (VAT). Directive 2006/112/EC. Immovable property acquired as capital goods. Deduction of input tax paid. Adjustment of the initial deduction. Single adjustment of that deduction in full after the goods in question are first used. Adjustment period.
“Articles 184 to 187 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as not precluding a capital goods adjustment scheme, laid down in national rules in which the adjustment is to be spread over several years, from providing that, in the year the goods in question are first used, where that year is also the first adjustment year, the total amount of the initial deduction for those capital goods is adjusted in a single step, if, when first used, it becomes apparent that that deduction deviates from the deduction which the taxable person was entitled to apply on the basis of the actual use of those goods.”.
III.2 Constitutional Court
III.3. Courts of Justice
Judgement of the Lisbon Court of Appeal of September 15, Case no. 29015/06.3YYLSB-B.L1-7: Embargoes of enforcement. Rejection of preliminary injunction. Assignment of claim. Debtor. Notification.
Judgement of the Lisbon Court of Appeal of September 15, Case no. 16642/11.6T2SNT-A-7: Enforcement. Executive title. Private document. Promissory contract of partition.
Judgement of the Lisbon Court of Appeal of September 17, Case no. 1655/18.5T8CSC.L1-8: Real estate mediation contract. Mediator. Obligations. Contractual liability. Negative contractual interest.
III.4. Administrative and Tax Court
Judgement of the Supreme Administrative Court of September 2, Case no. 0705/19.2BELLE: Extinction of the tax liability. Notification. Act. Interruption. Long-lasting effect.
Judgement of the Supreme Administrative Court of September 16, Case no. 01786/08.0BELRS: Personal Income Tax. Capital gains. Location. Housing.
Judgement of the Supreme Administrative Court of September 16, Case no. 02056/09.1BELRS 0515/18: Municipal Tax over the Transfer of Real Estate. Leasing. Real state rental.
IV.1.1. Monographs and Periodic Publications
Luís Filipe Pires de Sousa, Prova Testemunhal, 2.ª Edição, Almedina, setembro 2020
Rui Marques, Código do IRC – Anotado e Comentado, 2.ª Edição, Almedina, setembro 2020
Pedro Pais de Vasconcelos, Pedro Leitão Pais de Vasconcelos, Direito Comercial – Livro 1, 2.ª Edição, Almedina, setembro 2020
Joana Covelo de Abreu (coord.), Liliana Reis (coord.), Instituições, Órgãos e Organismos da União Europeia, Almedina, setembro 2020
Luís Menezes Leitão, Direitos Reais, 9.ª Edição, Almedina, setembro 2020
AA.VV., Novo Código do Procedimento Administrativo – Anotado e Comentado, 6.ª Edição, Almedina, setembro 2020
Eduardo Paz Ferreira, Ensaio de Finanças Públicas, Almedina, setembro 2020
Jorge Ribeiro de Faria, Direito das Obrigações – Livro 1, 2.ª Edição, Almedina, setembro 2020
IV.1.2. Generic Guidelines & Cia
Circulate letter no. 15789, of 09.09.2020, of Deputy General Director of Customs Taxation Services
Subject: EUR.1 Certificates issued by Vietnam – Update.
IV.2.1. Economy, Finance and Taxation
On September 24, the Council of Ministers has approved the Decree-Law which amends the exceptional and temporary measures related to the pandemic of Covid-19 disease, namely:
i. The extension, until 31 December 2020, of the temporary procedure for hiring workers, for a four months period, for bodies, services, and other entities, including the public business sector of the Ministry of Health, created to face the exceptional and temporary increase in activity;
ii. Exceptional measures to protect family claims, companies, private Social Solidarity institutions, and other entities of the social economy, come into force until September 2021;
iii. It is defined that the profits distribution, in any form, the reimbursement to the members credits and the acquisition of shares, by the beneficiary entities, extinguish the effects of the extraordinary support measures;
iv. The beneficiary entities that on 1 October 2020, are covered by any of the extraordinary support measures, will benefit from the additional and automatic extension of the mentioned measures for a period of six months, from 31 March 2021 and 30 September 2021;
v. Extends the exceptional and temporary measures for insurance contracts;
vi. The expenditure to be caried out, under the protocols to be concluded by December 31 of 2020, for the screening tests to professionals assigned in residential structures becomes the subsystem of social action;
vii. The extension of the restriction on live performance in indoor or outdoor festivals and shows of a similar nature.
V. INDUSTRIAL PROPERTY
The Global Innovation Index 2020 (GII 2020), which ranks the innovation performance of 131 countries and economies around the world based on 80 indicators and is a reference tool for the annual assessment of innovation progress, has been published by WIPO together with a number of entities. The main conclusions of the GII 2020 focused on the following themes:
- The impact of the COVID-19 crisis on innovation and the need for leaders to react as they move from containment to economic recovery;
- A decrease in innovation financing with the current crisis, although hope persists;
- A change in the global innovation landscape, with China, Vietnam, India, and the Philippines on the rise;
- The excellent innovation performance in developing economies;
- A persistence of regional divisions, with some economies showing significant innovation potential; and
- A concentration of innovation in science and technology clusters in certain high-income economies, mainly China.
The second edition of the Bartolomeu de Gusmão Prize, scheduled for this year, has been postponed to 2021 because of the current pandemic situation. The Bartolomeu de Gusmão Prize is an initiative of the Ministry of Justice, under the «Justiça + Próxima» Programme, which, through the INPI, aims to distinguish inventions and design of Portuguese origin.
The 61st series of meetings of the Assemblies of the Member States of the World Intellectual Property Organisation (WIPO) took place between 21 and 25 September, in which a delegation from the INPI virtually participated.
As part of the EU agenda in relation to the Strategy for the Enforcement of Intellectual Property in Third Countries, the European Commission, through DG Trade, launched a public consultation to obtain information on the current state of intellectual property protection and enforcement in third countries.
The aim is to identify the third countries where the state of protection and enforcement of intellectual property rights is of most concern and to allow the list of so-called “priority countries” to be updated, seeking to improve the system of intellectual property rights protection in these countries.
The public consultation will end on 16 November 2020.
The first working and discussion paper on intellectual property infringement and enforcement entitled “Intellectual Property Infringement and Enforcement Tech Watch Discussion Paper 2020” has been published on the Observatory’s website.
A joint study by the European Patent Office/International Energy Agency has been published on the rapidly increasing key role that battery innovation plays in the transition to clean energy, pointing to the annual increase over the last decade of 14% in inventions related to electricity storage.
The World Intellectual Property Organisation has launched WIPO Lex-Judgments, a new database offering free access to major court rulings on intellectual property law around the world.
The 61st series of meetings of the World Intellectual Property Organization’s Assemblies took place from September 21-24, with a smaller agenda compared to other years due to the COVID-19 pandemic, in hybrid format, with delegates from member states physically participating in Geneva and/or at a distance.
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- I. EDITORIAL
- II. LEGISLATION
- III. CASE-LAW
- IV. BRIEFS
- V. INDUSTRIAL PROPERTY