June 2023
I.?EDITORIAL – CREATION OF THE AGENCY FOR INTEGRATION, MIGRATION AND ASYLUM, I.P; TRANSPOSITION OF DIRECTIVE (EU) 2019/790, REGARDING COPYRIGHT AND RELATED RIGHTS IN THE DIGITAL SINGLE MARKET
The month of June was marked, on a?legislative level, by the publication of?Decree-Law no. 41/2023, of June?2, which establishes the Agency for Integration, Migration and Asylum, I.P (A.I.M.A, I.P.), which succeeds the Portuguese Immigration and Border Service (SEF), in its administrative responsibilities regarding matters of immigration and asylum, and the High Commissioner for Migration, I.P., and, on the other hand, by the publication of?Decree-Law no. 47/2923, of June?19, which transposes the Directive (EU) 2019/790 regarding copyright and related rights in the digital single market.
Also noteworthy, at the legislative level, are:
Within the scope of?case law, it is worth highlighting?the?Judgement of the Constitutional Court, Case no. 370/2023, in which it was decided “a) not to find unconstitutional the content of articles 119, no. 1 and 374, no. 1, both of the Criminal Code (in the version given by Decree-Law no. 48/95), when interpreted in the sense that the statute of limitation for the crime of active corruption is counted from the date on which the delivery of a certain benefit to the official occurs, and not from the date on which the promise of such benefit occurs; b) not to find unconstitutional the content in articles 119, no. 1, of the Criminal Code and article 18, no. 1 of Law no. 34/87, of?July 16 (in the version given by Law no. 108/2001, of November 28), when interpreted in the sense the statute of limitation for the crime of active corruption is counted from the date of the bribery payment (read, delivery of the benefit to the political office holder) and not from the date in which the offer for the payment is made and accepted”.
Finally, under?Miscellaneous, It’s worth highlighting the approval of the draft law, to be submitted to the Assembly of the Republic, that adapts the statutes of 12 professional associations to the legal regime for the creation, organization and functioning of public professional associations.
II. LEGISLATION
Ordinance no. 149/2023, of June 1:?Amends Ordinance no. 291/2017, of September 28.
Decree-Law no. 40/2023, of June 2:?Approves the transition regime for workers of the Portuguese Immigration and Border Service.
Decree-Law no. 41/2023, of June 2: Creates the Agency for Integration, Migration and Asylum, I.P.
Ordinance no. 149-A/2023, of June 2:?Creates a new series of savings certificates designated, “Série F”.
Ordinance no.150/2023, of June 5:?Establishes the financial support to be granted to students from private special education schools.
Ordinance no. 150-B/2023, of June 5: Revision and setting of the tax rates on oil and energy products.
Ordinance no. 155-A/2023, of June 6:?First amendment to Ordinance no. 134-A/2022, of March 30, that approves the Regulation for the Allocation of Financial Support for the Realization of Investments in the National Network for Integrated Continued Care and in the National Network for Palliative Care foreseen in the Recovery and Resilience Plan.
Ordinance no. 155-B/2023, of June 6: Declares the definitive installation of the Anticorruption National Mechanism.
Resolu??o do?Resolu??o do Conselho de Ministros n.o 54/2023, de 9 de junho
Decree-Law no. 43/2023, of June 12: Transposes Directive (EU) 2020/157 regarding the deployment of drivers in the road transport sector and creates the respective sanctioning regime.
Decree-Law no. 44/2023, of June 12:?Establishes the sanctions to infringements of the rules contained in Regulation (EU) 376/2014 on the reporting, analysis and follow-up of occurrences in civil aviation.
Ordinance no. 160/2023, of June 12: Establishes the list of subsidized manipulated medications referred to in paragraph 5 of article 22 of Decree-Law no. 97/2015, of 1 June1, in its current wording.
Decree-Law no. 45/2023, of June 13: Expands the application of the Trade Modernization Fund.
Decree-Law no. 46/2023, of June 19: Transposes Directive (EU) 2019/789, which establishes standards on the exercise of copyright and related rights in relation to certain online transmissions of broadcasting organizations and retransmissions of television and radio programs.
Decree-Law no. 47/2023, of June 19:?Transposes Directive 2019/790, regarding copyright and related rights in the Digital Single Market.
Ordinance no. 172/2023, of June 23: Undertakes the mid-term update of pensions in 2023.
Ordinance no. 178/2023, of June 27:?Undertakes the third amendment to Ordinance no. 121/2021, of June 9, that regulates the electronic filing of documents wrought by notaries and other documents filed at the notaries’ offices, the permanent notarial certificate and the participation of acts by electronic means to the Registry Office.
Decree-Law no. 49-A/2023, of June 30: Extends until 31 December 2023 the validity of the exceptional and temporary regime in the context of price increases with impact on public contracts and revises the compensation factor applicable to cases of revision by formula.
III. CASE-LAW
III.1. Court of Justice of the European Union
Judgment of the Court of Justice (Fifth Chamber) of June 8, Case no. C-455/21: Reference for a preliminary ruling. Consumer protection. Directive 93/13/CEE. Unfair terms in consumer contracts. Article?2(b). Definition of ‘consumer’. Contract for membership of a loyalty scheme enabling certain financial benefits to be obtained when purchasing goods and services from third-party traders.
Summary:
“Article?2(b) of Council Directive 93/13/EEC of 5?April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a natural person who becomes a member of a scheme implemented by a commercial company and allowing, inter alia, certain financial benefits in connection with the purchase, by that natural person or by other persons participating in that scheme further to his or her referral, of goods and services from that company’s business partners, where that natural person is acting for purposes which are outside his or her trade, business or profession, falls within the scope of the concept of ‘consumer’, within the meaning of that provision.”.
Judgment of the Court of Justice (First Chamber) of June 22, Case no. C-579/21: Reference for a preliminary ruling. Processing of personal data. Regulation (EU) 2016/679. Articles?4 and 15. Scope of the right of access to information referred to in Article?15. Information contained in log data. Article 4. Definition of “personal data”. Definition of “recipients”. Temporal Application
Summary:
“Article?15 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27?April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), read in the light of Article?99 no. 2 of that regulation, must be interpreted as meaning that it is applicable to a request for access to the information referred to in that provision where the processing operations which that request concerns were carried out before the date on which that regulation became applicable, but the request was submitted after that date.
Article?15 no. 1 of Regulation 2016/679 must be interpreted as meaning that information relating to consultation operations carried out on a data subject’s personal data and concerning the dates and purposes of those operations constitutes information which that person has the right to obtain from the controller under that provision. On the other hand, that provision does not lay down such a right in respect of information relating to the identity of the employees of that controller who carried out those operations under its authority and in accordance with its instructions, unless that information is essential in order to enable the person concerned effectively to exercise the rights conferred on him or her by that regulation and provided that the rights and freedoms of those employees are taken into account.
Article?15 no. 1 of Regulation 2016/679 must be interpreted as meaning that the fact that the controller is engaged in the business of banking and acts within the framework of a regulated activity and that the data subject whose personal data has been processed in his or her capacity as a customer of the controller was also an employee of that controller has, in principle, no effect on the scope of the right of access conferred on that data subject by that provision.”.
Judgment of the Court of Justice (Third Chamber) of June 29, Case no. C-211/22: Reference of a preliminary Ruling. Competition. Agreements, decisions and concerted practices. Article?101 TFEU. Vertical agreements. Minimum resale prices fixed by a supplier to its distributors. Concept of ‘restriction of competition by object’. Concept of ‘agreement’. Proof of a concurrence of wills between the supplier and its distributors. Practice covering almost the entire territory of a Member State. Effect on trade between Member States. Regulation (EC) No?2790/1999 and Regulation (EU) No?330/2010. Hardcore restriction.
Summary:
“Article?101 no. 1 TFEU must be interpreted as meaning that the finding that a vertical agreement fixing minimum resale prices entails a ‘restriction of competition by object’ may only be made after having determined that that agreement presents a sufficient degree of harm to competition, taking into account the nature of its terms, the objectives that it seeks to attain and all of the factors that characterise the economic and legal context of which it forms part.
Article?101 no. 1 TFEU must be interpreted as meaning that there is an ‘agreement’, within the meaning of that article, where a supplier imposes on its distributors minimum resale prices of the products that it markets, if the imposition of those prices by the supplier and compliance with them by the distributors reflects the expression of the concurrence of wills of those parties. That concurrence of wills may be shown from the terms of the distribution contract at issue, where it contains an express invitation to comply with minimum resale prices or authorises, at the very least, the supplier to impose those prices, as well as from the conduct of the parties and, in particular, from any explicit or tacit acquiescence on the part of the distributors to an invitation to comply with minimum resale prices.
Article?101 TFEU, read together with the principle of effectiveness must be interpreted as meaning that the existence of an ‘agreement’, within the meaning of that article, between a supplier and its distributors, may be established not only by means of direct evidence, but also on the basis of objective and consistent indicia from which the existence of such an agreement may be inferred.
Article?101 no. 1 TFEU must be interpreted as meaning that the fact that a vertical agreement fixing minimum resale prices covers almost the entirety, but not all, of the territory of a Member State does not prevent that agreement from being capable of affecting trade between Member States.”.
III.2. Constitutional Court
Judgement of the Constitutional Court noo. 370/2023, of June 7, Case no. 174/22:
“In these terms and on these grounds, it is decided:
a) to not find unconstitutional the content of articles 119, no.1 and 374, no. 1, both of the Criminal Code (in the version given by Decree-Law no. 48/95), when interpreted in the sense that the statute of limitation for the crime of active corruption is counted from the date on which the delivery of a certain benefit to the official occurs, and not from the date on which the promise of such benefit occurs; b) to not find unconstitutional the content in articles 119, no. 1, of the Criminal Code and article 18, no. 1 of Law no. 34/87, of July 16 (in the version given by Law no. 108/2001, of November 28), when interpreted in the sense the statute of limitation for the crime of active corruption is counted from the date of the bribery payment (read, delivery of the benefit to the political office holder) and not from the date in which the offer for the payment is made and accepted; (…)”.
III.3. Judicial Courts
Judgement of the Supreme Court of Justice, of June 1, Case no. 3545/18.2T8BCL.G1.S2: Scope of Review. Review of Appeal. Presumption. Renumeration. Monthly Payments. Irreducibility of Renumeration.
Summary:
“I-?The decisions made by Rela??o (Court of Appeal) within the scope of paragraphs 1 and 2 of article 662 of the CPC cannot be appealed (paragraph 4 of article 662)-.
II- Given the presumption that the payments made by the employer on a regular and periodic basis are part of the worker’s remuneration and given that the employer has not succeeded in rebutting that presumption, the payment designated as “accumulation”, paid regularly and periodically to that worker before she took up management functions, is part of the remuneration.
III- Therefore, once the management functions have ceased, the refusal to reimburse the employee’s remuneration is unlawful, since it violates the employee’s legal guarantee that the employer will not unilaterally reduce the employee’s remuneration.”.
Judgement of the Lisbon Court of Appeals de of June 6, Case no. 9079/18.8T8LSB-H.L1-1:?Renumeration to the Insolvency Administrator. Variable renumeration. Satisfaction of Credits Claimed Greater than 100%.
Summary:
“I.?The insolvency administrator has the right to be remunerated for his acts with such remuneration consisting of a fixed part and, if a recovery plan or liquidation of the insolvent estate is approved, a variable part.
II. The wording given by Law no. 9/2022, of 11 January, to article 23 of the Judicial Administrator’s bylaws, with regard to the way in which the variable remuneration is calculated, is of immediate application to pending cases, whereby whenever the setting of the variable remuneration occurs after the date on which the statute comes into force, it should be calculated in accordance with the new wording of the same.
III. In the event of liquidation of the insolvent estate, paragraph 7 of the referred Article 23 expressly establishes that, in order to determine the variable remuneration of the Insolvency Administrator appointed by the judge, the degree of satisfaction of the debts claimed and admitted shall be considered.
IV. Having carried out the operations established by law, although it has been ascertained that the amount to be distributed among creditors, that is, the value of the claims satisfied, is EUR 168,348.19 and that the net result of the liquidation of the insolvent estate is EUR 173,036.18, the percentage to be considered in terms of the satisfaction of claims requested and admitted can only be 100% and not 103%, given that the surcharge must be calculated by reference to the degree of satisfaction of the claims and not the result ascertained in terms of liquidation.”.
Judgement of the Lisbon Court of Appeals, of June 6, Case no. 636/21.6T8PDL-I.L1-1: Resolution for the Benefit of the Insolvent State. Damage to the Insolvent. Bad Faith.
Summary:
“I- The resolution for the benefit of the insolvent estate, regulated in Articles 120 to 126 of the CIRE, constitutes a legal mechanism aimed at preventing acts that may damage the integrity of the insolvent estate, and has an extinctive nature, dissolving the contractual link.
II- For the act to be abstractly resolvable, it must have been carried out in the two years prior to the beginning of the insolvency proceeding. For the conditional resolution foreseen in article 120 of CIRE, the harmfulness of the act in relation to the insolvent state and the bad faith of the third party are also required.
III-?Article 120 no. 4 of the CIRE, considers that bad faith is presumed in relation to acts in which a person specially related to the insolvent took part or benefited from.
IV- All the situations provided for in Article 49 of the CIRC are relevant in order to dense this notion of person especially related to the insolvent, but not all the situations covered by paragraph 4 of the aforementioned Article 120 are included in the exhaustive list of that legal rule, to which no rule of the regime of the resolution of businesses is expressly referred, thus nothing prevents this presumption of bad faith from being fulfilled beyond the exhaustive cases of Article 49 of the CIRC.
V-?Since the sale and purchase agreement resolved by the IA – entered into with the participation of the legal representatives of the debtor and acquiring companies, in the year prior to the commencement of the insolvency proceedings, when they had already been divorced for more than six years – materialised a division of property already outlined at the time of their divorce, the presumed bad faith established in Article 120 no. 4 of the CIRE is ruled out.?
VI- For the act to be resolvable it would be necessary for there to be presumed (120, no. 4 of the CIRE) or effective bad faith on the part of the purchaser, consisting of the purchaser’s knowledge, at the date of the transaction, that the debtor was already insolvent, or knowledge of the prejudicial character of that act and of the fact that the debtor was at that date in a situation of imminent insolvency or at the start of the insolvency process (120, no. 5 of the CIRE.)
VII- Since this matter was not considered to be proven in the judgment under appeal and the IA in the letter terminating the contract merely alluded to facts that would allow the presumed bad faith to be used, which was rejected, the conclusion must be drawn that the bad faith required was not verified and, therefore, that one of the requirements for terminating the contract was not met.
VIII- And such a conclusion it is not precluded by the fact that it has been proven that the cancelled transaction (purchase and sale) was simulated, since the legal representatives of the companies involved in it intended to materialise another contract (of partition), already previously contracted in the form of a promise, more than six years before, at the time of their divorce.”.
Judgement of the Lisbon Court of Appeals, June 15, Case no.?94896/21.5YIPRT.L1-6: Independent Contractor Agreement with a Lawyer. Cessation of Mandate by Termination. Revocation. Termination with Just Cause. Penalty Clause.
Summary:
“1- An Independent Contractor Agreement is a contract for the performance of a service by and independent contractor to a client, with monthly payment. And when intended, as in the case of the proceedings, for the practice of acts proper of lawyers, it’s called an Independent Contract Agreement for Legal Services.?
2- The independent contractor agreement for legal services is legally atypical but socially typical and, as such, in the hierarchy of its sources, is must be governed, first, by the stipulation of the parties, then, by the analogous general dispositions relating to related businesses, by the general dispositions of obligations and by those that the judge creates in accordance with good faith and other rules authorizing him supplement the law.
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3- Regarding the cessation of the mandate by termination, it isn’t expressly established a rule on the termination of a mandate in the Civil Code, with the legislator choosing to include in the sub-section of revocation the situations of just cause, as derives from article 1170 no. 2.
5- There is no specific provision, in the regime for the mandate contract in the civil code, for the compensation of the mandator who revokes the contract d libitum or who terminates the contract for just cause.
6- If the creditor and debtor agree to set a penalty in place of compliance, fixing the payment of all monthly instalments until the end of the contract, in the event of termination (for just cause) it is a stipulation of a penalty clause in the strict sense.
7 – The principle of good faith, within the scope of penalty clauses, has its maximum expression in article 812 no.1 of the CC, in the institute of the equitable reduction of the penalty clause.
8 – As this is a penal clause in the strict sense, in which the parties agreed to set a penalty that replaces compliance, fixing the payment of all monthly instalments until the end of the contract, in situations such as these, and with respect to the relevant criteria for the reduction of the penalty clause, it will not be the actual loss the factor to be considered, but rather the interest of the creditor in compliance, it is fundamentally a question of asking for the amount necessary to stimulate the debtor to comply, given the circumstances of the case, especially the time of the contract that has already elapsed and the time that remained to be complied with at the date of the declaration of termination of the contract.”.
Judgement of the Lisbon Court of Appeals, June 1, Case no. 135/22.9T8PNF.P1: Property Right. Swap Contract. Mortgage. Mortgage Registry.
Summary:
“I – If the swap contract has as an object a plot of land for an autonomous fraction of the building to be constructed on thar land, the property right is immediately transferred to the buyer, as a result of the exchange contract, but the transfer of the property right concerning the autonomous fraction of the building to be constructed (future assets) only takes place after the construction of the building and with the constitution of the horizontal property regime, which is the title that individualizes them and grants them legal autonomy.
II – The mortgage constituted to guarantee a certain debt, over a building plot or over a building under construction, is transferred to each of the fractions, after the building is constituted as horizontal property, so that each fraction guarantees the totality of the credit.
III – As the mortgage was registered prior to the constitution of the horizontal property and the subsequent registration of the property right, the mortgage prevails over this, incompatible, property right”.
Judgement of the Porto Court of Appeals, June 5, Case no. 6083/21.2T8PRT.P1:?Fixed Term Employment Contract. Justification. Extinction of Workplace Position. Legal Criteria.
Summary:
“I – “In order to affirm the validity of the cessation of the contract, it is necessary that the facts that may lead to the indicated motive are explicit in its text and that such facts reflect reality.”
II – The possibility of outsourcing does not make the duration of the activity of a municipal company so uncertain as to justify the stipulated term.
III –?the possibility of insolvency does not make the duration of the activity so uncertain that it justifies a claused term.
IV –?From the public and well-known fact of the enormous difficulties arising from the Covid-19 pandemic, evidencing the susceptibility of supervenient changes of circumstances and having implied, in this case, a change in the way the new activity of the same company was developed, there is no risk of the same that would justify, without more, the claused term, at the time of the conclusion of the fixed-term employment contract, on 16 September 2019.
V – “The first legal criterion for the extinction of a workplace position is to always give preference to employment contracts thar have lasted longer”.”
III.4. Administrative and Tax Courts
Judgement of the Supreme Administrative Court, June 7, Case no. 01682/22.8BELRS: Statute of Limitation for Tax Liability. Subpoena. Act.
Summary:
“I – The courts recognize that the interruption of the statute of limitations dua to the subpoena of the defendant (Article 49, no.1 of the LGT) has a double effect: the uselessness for the statute of limitation of all the time that elapsed until then (instantaneous effect, due to no. 1 of article 326 of CC) and?that the new deadline for the statute of limitations does not start running until the sentence res judicata”
II – The recognition of such lasting effect does not infringe on the constitutional principles of legality certainty and security nor the guarantees of taxpayers”.
Judgement of the Southern Central Administrative Court, June 1, Case noo 845/12.9 BELRS: IRS. International double tax credit.
Summary:
“International double taxation credit may be proved by any means admissible in law, except when the veracity is contested.”.
Judgement of the Southern Central Administrative Court, June 1, Case no. 713/13.7 BEALM: IRS. Daily Subsistence Allowance. Salary.
Summary:
“I – Usually, the values paid as daily subsistence allowance, given their compensatory nature (compensation for expenses that the worker is obliged to bear, particularly for travel), do not fall within the concept of salary, for IRS purposes.
II – It’s ATs responsibility to demonstrate that the amounts declared as daily subsistence allowance are included in the worker’s salary.
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IV. BRIEFS
IV.1. DOCTRINE
IV.1.1.??Monographs and Periodic Publications
Jorge Reis Novais,?Limites dos Direitos Fundamentais – Fundamento, Justifica??o e Controlo, Almedina, junho 2023
Marlene Rodrigues,?Incidências Laborais no Processo de Revitaliza??o, Almedina, junho 2023
Catarina Vieira Peres de Frairpont,?The single economic unit doctrine – From public to private enforcement, junho 2023
Filipa Santos Rocha, Dever de Neutralidade e as Competências da Assembleia Geral na Pendência da OPA,?Almedina, junho 2023
Jorge Silva Martins, Jo?o Carminho, Inês Coré, Direito dos Dados Pessoais – Coletanea de Legisla??o Fundamental, Almedina, junho 2023
Victor Hugo Ventura,?O Regime do Contrato de Servi?o Doméstico – Com as altera??es pela Lei n.o 13/2023, de 3 de abril (Agenda do Trabalho Digno),?Almedina, junho 2023
Autores Vários (Dir. António Menezes Cordeiro),?Revista de Direito Civil, Ano VIII (2023), N.o 2, Almedina, junho 2023
IV.1.2.?Generic Guidelines & Cia
Circular Letter no. 2056/2023, of June 7, by order of the Deputy Director-General of IR and International Relations
Subject: Lease agreement – Taxation of the deposit.
Circular Letter no. 20258/2023, of June 20,?by order of the deputy Director-General of IR and International Relations
Subject: Withholding Tax Table – new model to be applied from July 1, 2023 – Frequently Asked Questions.
Circular Letter no. 2057/2023, of June 21, by order of the deputy Director-General of IR and International Relations
Subject: IRS / IRC – Use of one’s own car at employer’s service – parking and tolls.
Circular Letter no. 20259/2023, of June 28, by order of the deputy Director-General of IR and International Relations
Subject: IRC – RFAI – Job creation and maintenance.
IV.2.?Miscellaneous
IV.2.1. Economy, Finance and Taxation
On June 15, the Council of Ministers approved a draft law to be submitted to Parliament, which adapts the bylaws of 12 professional associations to the new legal regime of creation, organization, and operation of public professional associations. This diploma will adapt the bylaws of several professional organizations, eliminating access restrictions to these professions. The Council of Ministers has analysed, in final reading, the already approved proposal regarding the remaining 8 professional associations, and decided to aggregate into a single Law, the changes to the bylaws of the 20 professional associations.
On June 29, the Council of Ministers approved the resolution that establishes the three Action Plans regarding gender equality, prevention of violence and domestic violence against women and to fight discrimination on grounds of sexual orientation, identity, gender expression and sexual features, in the context of the National Strategy for Equality and Non-Discrimination, for the period of 2023-2026 (ENIND).
IV.2.2. Industrial Property
On June 2, the Minister of Justice, Catarina Sarmento e Castro, presided over the opening ceremony of the Portuguese Local Division of the Unified Patent Court (UPC) next to the Intellectual Property Court.
Present at the session were the Secretary of State for Justice, INPI’s Board of Directors, members of the Justice Department, and members of INPI’s Advisory Council.
On June 5, Dispatch no. 6167/2023 was published on the Official Gazette, regulating the formal requirements for applications, and submitted in registration applications and in the course of procedures provided for in the Industrial Property Code.?The Order has been in effect since June 1 and repeals the previous Dispatch no. 6142/2019 of July 4, introducing the following changes:
On June 15, the provisional statistical data regarding the applications and grants of Industrial Property Rights (IPR), for the month of May 2023, were made available. From this statistical data, we can highlight the following:
All statistical reports (annual and semi-annual) and monthly data related to applications and granting of Industrial Property Rights are available at the?IP Observatory.
The European Union Intellectual Property Office (EUIPO) is making available the new edition of the European Union (EU) Small and Medium-sized Enterprise (SME) Support Fund to enable SMEs to benefit from their Industrial Property Rights (IPR).
In total, this initiative received, in 2022, more than 22,000 applications from all EU member states. The estimated budget for this initiative in 2023 is 25 million euros (for vouchers 1 and 2), 2 million euros (voucher 3) and 100,000 euros (voucher 4).
Applications can be made on the?EUIPO website.
On June 30, the new Table of Industrial Property Fees was published updating the fees for the various types of Industrial Property. It will be in effect between 1 July 2023 and 30 June 2024. This update follows the decision of INPI’s Board of Directors of 6 June 2023 and is applicable as of 1 July 2023.