E-LEGAL® JANUARY 2019

case-legal19

I. EDITORIAL – THE REGIME OF INVESTMENT AND REAL ESTATE MANAGEMENT COMPANIES

In January, several laws with an impact in the national economy were published. First, we highlight the Decree-Law no. 19/2019 of January 28, which approves the Regime of Investment and Real Estate Management Companies (SIGI), a new vehicle for promoting investment and boosting the real estate market.

Additionally, the Law no. 7/2019 of 16 January was published, approving the legal regime for the distribution of insurance and reinsurance, transposing the Directive 2016/97 of the European Parliament and of the Council of 20 January 2016, on insurance distribution.

In the Tax area, a special mention should be made to the Law no. 2/2019 of January 9, which authorizes the Government to approve a special tax regime that provides for exemption from taxation of property income resulting from lease or sublease.

Several Ordinances, relevant for tax purposes, were also published, including the Ordinance no. 30-A/2019 of January 23, approving the instructions for completing the monthly statement of remuneration (DMR) and the Ordinance no. 31/2019 of January 24, regarding the annual accounts statement and the Ordinance no. 34/2019 of January 28.

With regard to the case-law, the Judgment of the Constitutional Court No. 675/2018 of January 23 judges unconstitutional, with general binding force, the norm of paragraph 4 of article 17-G of the Insolvency and Corporate Recovery Code, when interpreted as meaning that the opinion of the interim insolvency administrator concluding the insolvency situation equivalent, under the provisions of Article 28 – even with the necessary adaptations – to the insolvency of the debtor, where he disagrees with the insolvency.

Finally, in the area of miscellaneous, the Council of Ministers proposed the preparation of a new Law that reinforces the combat to the practices of fiscal elision, transposing Directive (UE) 2016/1164. The law brings important changes to the Corporate Tax Code, the General Tax Law and the Procedure and Process Tax Code, partially transposing into national law the Community directives commonly known as the Anti Tax Avoidance Directive – ATAD 1 and 2.

II. LEGISLATION

Regional Decree-Law no. 1/2019/A of January 7: Budget of the Autonomous Region of the Azores for 2019.
https://data.dre.pt/eli/declegreg/1/2019/01/07/a/dre/pt/html

Law no. 2/2019 of January 9: Authorizes the Government to approve a special tax regime for exemption from real estate income resulting from lease or sublease under the Accessible Lease Program.
https://data.dre.pt/eli/lei/2/2019/01/09/p/dre/pt/html

Law no. 3/2019 of January 9: Changes the Personal Income Tax Code and creates conditions for access to tax incentives at house construction programs with accessible monthly income.
https://data.dre.pt/eli/lei/3/2019/01/09/p/dre/pt/html

Law no. 4/2019 of January 10: Establishes the system of employment quotes for persons with disabilities and incapacity equal to or greater than 60%.
https://data.dre.pt/eli/lei/4/2019/01/10/p/dre/pt/html

Law no. 5/2019 of January 11: Compliance regime for the duty of information of the consumer energy marketer.
https://data.dre.pt/eli/lei/5/2019/01/11/p/dre/pt/html

Decree-Law no. 3/2019 of January 11: Establishes the possibility of suspending the exercise of transport by taxi for a period of one year and clarifies the possibility of having a taximeter in the rear-view mirror.
https://data.dre.pt/eli/dec-lei/3/2019/01/11/p/dre/pt/html

Decree-Law no. 6/2019 of January 14: Changes the General Labour Law at Public Functions, regarding the expiration of the disciplinary processes and the conditions of exercise of public functions by retired or retired employees.
https://data.dre.pt/eli/dec-lei/6/2019/01/14/p/dre/pt/html

Law no. 7/2019 of January 16: Approves the legal regime for the distribution of insurance and reinsurance, transposing to national legal order the Directive 2016/97 of the European Parliament and of the Council of 20 January 2016, on insurance distribution.
https://data.dre.pt/eli/lei/7/2019/01/16/p/dre/pt/html

Ordinance no. 20/2019 of January 17: Updates the annual reference value of the base component and the supplement of the social benefit for inclusion and the annual maximum limit of accumulation of the base component with earned income.
https://data.dre.pt/eli/port/20/2019/01/17/p/dre/pt/html

Ordinance no. 21/2019 of January 17: Updates the reference value of the solidarity supplement, as well as the complementary solidarity for the elderly.
https://data.dre.pt/eli/port/21/2019/01/17/p/dre/pt/html

Ordinance no. 23/2019 of January 17: Proceed with the annual update of labour accidents pensions for the year 2019.
https://data.dre.pt/eli/port/23/2019/01/17/p/dre/pt/html

Ordinance no. 24/2019 of January 17: Proceed with the annual update of the value of the index of social support (IAS).
https://data.dre.pt/eli/port/24/2019/01/17/p/dre/pt/html

Ordinance no. 25/2019 of January 17: Proceed with the annual update of pensions and other social benefits granted by the social security system, the pensions of the convergent social protection scheme granted by the CGA and the pensions for permanent incapacity for work and death due to occupational disease, for the year 2019.
https://data.dre.pt/eli/port/25/2019/01/17/p/dre/pt/html

Decree-Law no. 15/2019 of January 21: Creates the procedure for the identification and recognition of a rustic or mixed building with no known owner, hereinafter referred to as a building without owner, and its registration.
https://data.dre.pt/eli/dec-lei/15/2019/01/21/p/dre/pt/html

Decree-Law no. 16/2019 of January 22: Establishes the regime of access and exercise of space activities.
https://data.dre.pt/eli/dec-lei/16/2019/01/22/p/dre/pt/html

Ordinance no. 30-A / 2019 of January 23: Approves the instructions for completing the monthly statement of remuneration (DMR), approved by Ordinance no. 40/2018, of January 31.
https://data.dre.pt/eli/port/30-a/2019/01/23/p/dre/pt/html

Ordinance no. 31/2019 of January 24: Approves the terms to which the Simplified Business Information/Annual Statement of Accounting and Tax Information (IES/DA) must comply with.
https://data.dre.pt/eli/port/31/2019/01/24/p/dre/pt/html

Ordinance no. 32/2019 of January 24: Approves the model of the form related to Annex R of the declarative model of the Simplified Business Information (IES).
https://data.dre.pt/eli/port/32/2019/01/24/p/dre/pt/html

Decree-Law no. 19/2019 of January 28: Approves the regime of investment and real estate management companies.
https://data.dre.pt/eli/dec-lei/19/2019/01/28/p/dre/pt/html

Ordinance no. 34/2019 of January 28: Approves the new models intended to comply with the mandatory declaration set forth in paragraph 1 of article 57 of the IRS Code and respective instructions for completion, for the year 2019.
https://data.dre.pt/eli/port/34/2019/01/28/p/dre/pt/html

III. CASE-LAW

III.1. Court of Justice of the European Union

Judgment of the Court of January 17, Case C310/16: Reference for a preliminary ruling. Value added tax (VAT. Protection of the European Union’s financial interests. Article 325(1) TFEU. Convention on the protection of the European Communities’ financial interests. Criminal proceedings concerning VAT offences. Principle of effectiveness. Taking of evidence. Interception of telecommunications. Authorisation granted by a court that lacks jurisdiction. Taking those interceptions into consideration as evidence. Provisions of national law. Prohibition
Summary: “Article 325(1) TFEU, and Article 1(1)(b) and Article 2(1) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, signed in Luxembourg on 26 July 1995, read in conjunction with the Charter of Fundamental Rights of the European Union, must be interpreted to the effect that, in the light of the principle of effectiveness of the prosecution of value added tax (VAT) offences, they do not preclude a national court from applying a national provision excluding, from a prosecution, evidence such as the interception of telecommunications requiring prior judicial authorisation, where that authorisation was given by a court that lacked jurisdiction, in a situation in which that evidence alone is capable of proving that the offences in question were committed.”
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62016CJ0310&from=PT

Judgement of the Court of January 23, Case C430/17: Reference for a preliminary ruling. Consumer protection. Directive 2011/83/EU. Distance contracts. Article 6(1)(h). Obligation to provide information on the right of withdrawal. Article 8(4). Contract concluded through a means of distance communication which allows limited space or time to display the information. Meaning of ‘limited space or time to display the information’. Brochure inserted in a periodical. Mail order coupon containing a hyperlink referring to information on the right of withdrawal.
Summary: “The assessment of whether, in a specific case, the means of communication allows limited space or time to display the information, in accordance with Article 8(4) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, must be carried out having regard to all of the technical features of the trader’s marketing communication. In that regard, it falls to the national court to ascertain whether, having regard to the space and time occupied by the communication and the minimum size of the typeface which is appropriate for the average consumer targeted by that communication, all the information set out in Article 6(1) of that directive may objectively be displayed within that communication.

Article 6(1)(h) and Article 8(4) of Directive 2011/83 must be interpreted to the effect that, in a situation where the contract is concluded through a means of distance communication which allows limited space or time to display the information, and where a right of withdrawal exists, the trader is required to provide the consumer, on the means of communication in question and before the conclusion of the contract, with information regarding the conditions, time limit and procedures for exercising that right. In such a situation, that trader must provide the consumer with the model withdrawal form, as provided for in Annex I(B) to that directive, by another source in plain and intelligible language.”
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62017CJ0430&from=PT

Judgement of the Court of January 23, Case C272/17: Reference for a preliminary ruling. Free movement of workers. Equal treatment. Income tax. Social security contributions. Worker who left the Member State of her employment during the course of the calendar year. Application of the pro rata temporis rule to social security credit.
Summary: “Article 45 TFEU must be interpreted as not precluding legislation of a Member State which, with a view to establishing the amount of social security contributions payable by a worker, provides that the social security component of the tax credit to which a worker is entitled for a calendar year is to be proportionate to the period during which that worker was insured under the social security system of that Member State, thus excluding from that annual credit a fraction proportionate to the period during which that worker was not insured under that social security system and lived in another Member State where he did not engage in professional activity.
http://curia.europa.eu/juris/document/document.jsf?text=&docid=210171&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=10156237

III.2. Constitutional Court

Judgment of the Constitutional Court no. 675/2018 of January 23: Judges unconstitutional, with general binding force, the norm of paragraph 4 of article 17-G of the Insolvency and Corporate Recovery Code, approved by Decree-Law no. 53/2004 of March 18, when interpreted as meaning that the opinion of the interim insolvency administrator concluding the insolvency situation is equivalent, under the provisions of Article 28 – even if with the necessary adaptations – to the insolvency of the debtor, where he disagrees with the insolvency.
https://data.dre.pt/eli/actconst/675/2019/01/23/p/dre/pt/html

III.3. Courts of Justice

Judgment of the Supreme Court of Justice of January 9, Case no. 2066/15. 0T8PNF.P1.S1: of Invalidity of the judgment. Working time. Time of availability. Right to rest. Non-equity damage.
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/4f61b25673a10f428025837e0039cd13?OpenDocument

Judgment of the Supreme Court of Justice of January 9, Case no. 1376/16.3T8CSC.L1.S1: Employment contract. Contract for services. Burden of proof. Presumption of work.
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/897875a2e14c8eb58025837e0039eb69?OpenDocument

III.4. Administrative and Tax Court

Judgment of the Administrative Supreme Court of January 16, Case no. 0241/18.4BEVIS: Revision of the tax act. Principle of equality. Effective judicial protection.
www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/f0505012eda6699580258386004eb05a?OpenDocument&ExpandSection=1#_Section1

IV. BRIEFS

IV.1. DOCTRINE
IV.1.1. Monographs and Periodic Publications
Luís Menezes Leitão, A RECUPERAÇÃO ECONÓMICA DOS DEVEDORES (RERE, PER, PEAP, Plano de Insolvência, Plano de Pagamentos e Exoneração do Passivo Restante), Almedina 2019;
Edgar Valles, GUIA PRÁTICO DAS ASSEMBLEIAS GERAIS – 2.ª Ed., Almedina 2019;

IV.1.2. Generic Guidelines & Cia
Circular Letter 30208/2019, of 04.01.2019, of the Deputy General-Director of Tax Management Area – VAT
Subject: VAT – Treatment of vouchers
http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_30208_2019.pdf

Circular Letter 30207/2019, of 04.01.2019, of the Deputy General-Director of Tax Management Area – VAT
Subject: VAT – State budget for 2019. Amendments to the VAT Code and complementary legislation.
http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_30207_2019.pdf

Circular Letter 30207/2019, of 04.01.2019, of the Deputy General-Director of Tax Management Area – Income Tax and International Relations
Subject: Depreciation of vehicles – residual value
http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_20203_2019.pdf

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

Several drafts of new tax laws were approved by the Council of Ministers, namely, a new Regulatory Decree regarding the automatic income tax return; an amendment of the Corporate Income Tax Code (IRC) and a new law which reinforces the fight against tax avoidance practices, transposing the Directive 2016/1164.

This law brings important changes to the Corporate Income Tax Code, to the General Tax Law and to the Tax Procedure Code, partially transposing into national law the Community directives commonly known as the Anti-Tax Avoidance Directive – ATAD 1 and 2.
https://www.portugal.gov.pt/pt/gc21/governo/comunicado-de-conselho-de-ministros?i=246

V. INDUSTRIAL PROPERTY

International Patent Classification: The 2019 version of the International Patent Classification entered into force on 1 January 2019.
https://inpi.justica.gov.pt/Noticias-do-INPI/Classificacao-Internacional-de-Patentes

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