E-LEGAL® MARCH 2019

case-legal19

I. EDITORIAL – THE PRESUMPTION OF LEGAL ENTRY IN THE CONCESSION OF RESIDENCE AUTHORISATION FOR THE EXERCISE OF PROFESSIONAL ACTIVITY, WITH DISPENSATION OF RESIDENCE VISA

In March, Brexit had an impact in the legislative procedure, through the publication of the Law no. 27-A/2019 of March 28 which approves the contingency measures to apply in eventuality of the exit of the United Kingdom from European Union without agreement, and by the Law no. 28/2019 of March 29, which  establishes the presumption of legal entry in the granting of residence authorisation for the exercise of professional activity, with residence visa dispensation, when the applicant has his status regularized before the social security for at least 12 months and works in national territory or has a Service Agreement, or an independent professional activity (self-employed) in national territory.

It should also be noted, due to its practical relevance in the tax matters the Law no. 27/2019 of March 28, which proceeded to the application of the tax execution procedure to the to the coercive collection of costs, non-criminal fines and other pecuniary penalties fixed in judicial process.

Regarding case-law, it is worth noting the Judgment of the Constitutional Court no. 99/2019 of March 13, which declares the unconstitutionality, with general obligatory force, of the norm contained in paragraphs 3 and 5 of Article 12 of the regime included in the annex to Decree-Law no. 269/98, of September 1 (in the wording resulting from the Article 8 of Decree-Law no. 32/2003, of February 17), in the context of a payment order procedure aimed to claim the compliance of pecuniary obligations of a value not exceeding EUR 15 000 – insofar as it does not refer to the field of commercial transactions, in the terms defined in Article 3, point a) of referred Decree-Law no. 32/2003 – when interpreted  in the sense that, in case of frustration of notification of the demanded (to pay the requested amount or to lodge an opposition the claim of the petitioner, in accordance with paragraph 1 of Article 12), by registered letter with acknowledgment of receipt sent to the address indicated by the petitioner for the payment order in the respective petition, by return of the same, the subsequent sending of a letter, by simple postal mail, to all the different known addresses, ascertained in the databases provided for in Article 12, paragraph 3, in accordance with paragraph 5 of the same precept, presumes the notification of the demanded, even if he does not reside there, counting from that deposit the period for lodging the opposition.

Finally, in the area of miscellaneous, we would like to draw attention to the approval by the Council of Ministers of the draft Law which amends the financial supervision in line with the existing model at European level.

II. LEGISLATION

Decree-Law no. 31/2019 of March 1: Proceeds to the fifth amendment of the Decree-Law n.º 251-A/2015 of 17 December, amendment by the Decree- Laws nº 9 March, 99/2017 of 18 August, 138/2017, of 10 November, and  90/2018 9 November, which approves the Organic Law of XXI Constitutional Government.
https://dre.pt/web/guest/pesquisa/-/search/120454103/details/maximized

Decree-Law no. 33/2019 of March 4: Establishes the rules applied to the Startup Portugal – Associação Portuguesa para a promoção do Empreendedorismo.
https://data.dre.pt/eli/dec-lei/33/2019/03/04/p/dre/pt/html

Law no. 23/2019 of March 13: Transposes into the internal legal system the Directive (EU) 2017/2399, of the European Parliament and Council, of 12 December 2017, which  amendments the  Directive 2014/59/EU, regarding the position of unsecured debt instruments in insolvency hierarchy.
https://data.dre.pt/eli/lei/23/2019/03/13/p/dre/pt/html

Decree-Law no. 37/2019 of March 15: Proceeds to the authentic interpretation of the point f) of paragraph 5 of the Article 6 of the Decree-Law no. 59/2018, of August 2, in order to clarify that the power to analyse the governance system of mutual societies subject to the transitional supervisory regime of the Supervisory Authority for Insurance and Pension Funds, covers the competence to verify the adequacy, including the compliance of requirements of good repute, professional qualification, independence, availability and capacity, and to ensure the register of persons exercising the responsibility and inspection functions in the referred mutual associations.
https://data.dre.pt/eli/dec-lei/37/2019/03/15/p/dre/pt/html

Decree-Law no. 38/2019 of March 18: Proceeds to third amendment of the Decree-Law, no. 49/2014 of March 27, amended by the Decree-Law  no. 86/2016, of December 27, and by the Law no. 19/2019, of  February 19, which regulates the Law no. 62/2013, 26 August (Law of Organisation of Judicial System), and establishes the regime applied to the organisation and operation of judicial Courts.
https://data.dre.pt/eli/dec-lei/38/2019/03/18/p/dre/pt/html

Ordinance no. 80/2019 March 18: Proceeds to the seventh amendment of the Commercial Registry Regulation.
https://data.dre.pt/eli/port/80/2019/03/18/p/dre/pt/html

Law no. 25/2019 of March 26: Proceeds to the fourth amendment of the framework law of environment administrative offences, in order to establish the principle of no communication and notification to the targeted entities in the activities of inspection and control.
https://data.dre.pt/eli/lei/25/2019/03/26/p/dre/pt/html

Law no. 27/2019 of March 28: Proceeds to the application of the tax execution procedure to the to the coercive collection of procedural costs, non-criminal fines and other pecuniary penalties fixed in judicial process.
https://dre.pt/web/guest/home/-/dre/121665678/details/maximized

Decree-Law no. 42/2019 of March 28: Establishes the regime of mass assignment of credits.
https://dre.pt/web/guest/home/-/dre/121665679/details/maximized

Law no. 27-A/2019 of March 28: Approves the contingency measures to apply in eventuality of the exit of United Kingdom from European Union without agreement.
https://dre.pt/web/guest/home/-/dre/121734971/details/maximized?serie=I&day=2019-03-28&date=2019-03-01

Law no. 28/2019 of March 29: Establishes a presumption of legal entry in the granting of residence permit for the exercise of professional activity, proceeding to the seventh amendment to Law no. 23/2007, of July 4, which approves the legal regime of entry, stay, departure and removal of foreigners from national territory.
https://dre.pt/web/guest/home/-/dre/121734971/details/maximized?serie=I&day=2019-03-28&date=2019-03-01

III. CASE-LAW

III.1. Court of Justice of the European Union

Judgment of the Court of 12 March 2019, Case C-221/17: Reference for a preliminary ruling. Citizenship of the European Union. Article 20 TFUE. Articles 7 and 24 of the Charter of Fundamental Rights of the European Union. Nationalities of a Member State and of a third country. Loss of the nationality of a Member State and of citizenship of the Union by operation of law. Consequences. Proportionality.
Summary: “Article 20 TFEU, read in the light of Articles 7 and 24 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding legislation of a Member State such as that at issue in the main proceedings, which provides under certain conditions for the loss, by operation of law, of the nationality of that Member State, which entails, in the case of persons who are not also nationals of another Member State, the loss of their citizenship of the Union and the rights attaching thereto, in so far as the competent national authorities, including national courts where appropriate, are in a position to examine, as an ancillary issue, the consequences of the loss of that nationality and, where appropriate, to have the persons concerned recover their nationality ex tunc in the context of an application by those persons for a travel document or any other document showing their nationality. In the context of that examination, the authorities and the courts must determine whether the loss of the nationality of the Member State concerned, when it entails the loss of citizenship of the Union and the rights attaching thereto, has due regard to the principle of proportionality so far as concerns the consequences of that loss for the situation of each person concerned and, if relevant, for that of the members of their family, from the point of view of EU law.”
http://curia.europa.eu/juris/document/document.jsf?text=&docid=211561&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=7924867

Judgment of the Court of 14 March 2019, Case C-174/18: Reference for a preliminary ruling. Freedom of movement for workers. Equal treatment. Income tax. Legislation for the avoidance of double taxation. Pension received in a Member State other than that of residence. Method of calculating the exemption in the Member State of residence. Loss of part of the benefit of certain tax advantages.
Summary: “Article 45 TFEU must be interpreted as precluding the application of tax legislation of a Member State, such as that at issue in the main proceedings, which has the effect of depriving a couple resident in that State, one of whom receives a pension in another Member State which is exempt from taxation in the first Member State pursuant to a bilateral convention for the avoidance of double taxation, of part of the benefit of the tax advantages granted by the Member State of residence.”
http://curia.europa.eu/juris/document/document.jsf?text=&docid=211704&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=7926867

Judgment of the Court of 19 March 2019, Case C-444/17: Reference for a preliminary ruling. Area of freedom, security and justice. Border control, asylum and immigration. Regulation (EU) 2016/399. Article 32. Temporary reintroduction of border control by a Member State at its internal borders. Illegal entry of a third-country national. Equation of internal borders with external borders. Directive 2008/115/EC. Scope. Article 2(2)(a)
Summary: “Article 2(2)(a) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with Article 32 of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), must be interpreted as not applying to the situation of an illegally staying third-country national who was apprehended in the immediate vicinity of an internal border of a Member State, even where that Member State has reintroduced border control at that border, pursuant to Article 25 of the regulation, on account of a serious threat to public policy or internal security in that Member State.”
http://curia.europa.eu/juris/document/document.jsf?text=&docid=211802&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=7927738

Judgment of the Court of 14 March 2019, Case C-372/18: Reference for a preliminary ruling. Social security. Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons. Regulation (EC) No 883/2004. Article 3. Matters covered. Levies on income from assets charged to a French resident insured under the Swiss social security scheme. Levies apportioned for the funding of two benefits administered by the French National Solidarity Fund for Independent Living. Direct and sufficiently relevant link with certain branches of social security. Definition of ‘social security benefit’. Individual assessment of an applicant’s personal needs. Taking into account the applicant’s resources in calculating the amount of the benefits.
Summary: “Article 3 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems must be interpreted as meaning that benefits, such as the personal independence allowance and the disability compensation allowance, must, for the purposes of their classification as ‘social security contributions’ within the meaning of that provision, be regarded as granted without any individual assessment of a recipient’s personal needs, since the recipient’s resources are taken into account for the sole purpose of calculating the actual amount of those benefits on the basis of legally defined, objective criteria.”
http://curia.europa.eu/juris/document/document.jsf?text=&docid=211708&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=7929061

III.2. Constitutional Court

Judgment of the Constitutional Court n.º 99/2019 of 13 March: declares the unconstitutionality, with general obligatory force, of the norm contained in paragraphs 3 and 5 of article 12 of the regime included in the annex to Decree-Law no. 269/98, of September 1 (in the wording resulting from the article 8 of Decree-Law no. 32/2003, of February 17), in the context of a payment order procedure aimed to claim the compliance of pecuniary obligations of a value not exceeding EUR 15 000 – insofar as it does not refer to the field of commercial transactions, in the terms defined in Article 3, point a) of referred Decree-Law no. 32/2003 – when interpreted  in the sense that, in case of frustration of notification of the demanded (to pay the requested amount or to lodge an opposition the claim of the petitioner, in accordance with paragraph 1 of Article 12), by registered letter with acknowledgment of receipt sent to the address indicated by the petitioner for the payment order in the respective petition, by return of the same, the subsequent sending of a letter, by simple postal mail, to all the different known addresses, ascertained in the databases provided for in Article 12, paragraph 3, in accordance with paragraph of the same precept, presumes the notification of the demanded, even if he does not reside there, counting from that deposit the period for lodging the opposition.
https://data.dre.pt/eli/actconst/99/2019/03/14/p/dre/pt/html

III.3. Courts of Justice

Judgement of the Supreme Court of Justice of March 12, Case no. 11197/14.2T2SNT-F.L1.S2: Article 6 of Commercial Companies Code. Provision of guarantees. Validity of the title. Burden of proof. Contradiction of judgments.
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/32a3fb527247c786802583bd003875df?OpenDocument

Judgement of the Supreme Court of Justice of March 7, Case no. 189/13.9TBALQ.L1.S1: Civil Law – Juridical relationships. Juridical facts. Juridical transaction. Negotiation declaration. Interpretation and integration. Normal sense of the declaration.  Law of obligations. Contracts in particular. Lease of urban property. Rent of urban buildings. Special lease provisions for non-residential purposes. Construction. Civil Procedural Law – Declaration process. Appeal. Judgment of the appeal. Appeal on a point of law. Fundamentals of the point of law.
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/62fb8e0c061f63c0802583b60050c52a?OpenDocument

III.4. Administrative and Tax Court

Judgment of the Administrative Supreme Court of March 21, Case no. 02/12.4BCPRT 0220/17: Bank. Phonecalls. Term. Conservation. Protection of personal data. National Data Protection Commission.
http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/09cbf36192f1c134802583c80052b3d9?OpenDocument

IV. BRIEFS

IV.1. DOCTRINE
IV.1.1. Monographs and Periodic Publications
José António de França Pitão e Gustavo França Pitão, CONDOMÍNIO E PROPRIEDADE HORIZONTAL, Quid juris, March 2019.
Pedro Fernández Sánchez, ESTUDOS SOBRE CONTRATOS PÚBLICOS, AAFDL, March 2019

IV.1.2. Generic Guidelines & Cia
Circular Letter no. 20207, of 13.03.2019, of the Office of Deputy General-Director of Income Taxes and International Relations
Subject: Declaration “Modelo 3”, in force from 1 January 2019
http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_20207_2019.pdf

Circular Letter no. 30211/2019, of 15.03.2019, of the Tax Management Area – VAT
Subject: VAT – Decree-Law no. 28/2019, of February 15 – Amendments to the VAT Code
http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_30211_2019.pdf

Circular Letter no. 20208/2019, of 18.03.2019, of the Office of Deputy General-Director of Income Taxes and International Relations
Subject: State Budget 2019 – Dispensation of Special Payment on Account (“PEC”)
http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_20208_2019.pdf

IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation
The Council of Ministers has approved the draft law whish amends the financial supervision in line with the existing model at European level, creating and regulating the functioning of National System of Financial Supervision (“Sistema Nacional de Supervisão Financeira”) and reorganising the functions assigned to the regulation and supervision authorities of banking sector (Bank of Portugal), capital market (Portuguese Securities Market Commission – “CMVM”) and insurance sector and pension funds ( Portuguese Supervisory Authority for insurance and pension funds – “ASF”).

This law proposal aims to reinforce the coordination between national supervisory authorities and autonomisation of the resolution functions, having the purpose to increase the effectiveness of the supervision and strengthening of the financial stability.
https://www.portugal.gov.pt/pt/gc21/governo/comunicado-de-conselho-de-ministros?i=253

 

Also, were approved by the Council of Ministers the DecreeLaw whish reinforces the powers and the incentives to the collection of debt to the social security, moving closer to the regimes in force for tax collection and the Decree-Law which amends the Statute of the Court-appointed Administrator (“Estatuto do Administrador Judicial”) and the Regime of the Commission for the Monitoring of Court Auxiliaries (“Regime da Comissão para o Acompanhamento dos Auxiliares de Justiça”).
https://www.portugal.gov.pt/pt/gc21/governo/comunicado-de-conselho-de-ministros?i=255

V. INDUSTRIAL PROPERTY

The National Institute of Industrial Property made available on 18 March 2019 the Statistical Report for 2018. The Report reflects statistical information regarding Industrial Property in the year 2018.
https://inpi.justica.gov.pt/Noticias-do-INPI/Relatorio-Estatistico-Anual-2018

The European Union Intellectual Property Office (EUIPO) in partnership with the Organisation for Economic Co-operation and Development (OECD) published the Report “Trends in Trade in Counterfeit and Pirated Goods
https://inpi.justica.gov.pt/Noticias-do-INPI/Novo-relatorio-sobre-o-impacto-da-contrafaccao-e-da-pirataria-na-Europa

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