e-legal® june 2019

case-legal19

I. EDITORIAL – REGULATION OF THE NEW “AFFORDABLE RENTING” PROGRAM

The month of June saw the publication of different relevant laws, deserving a special mention the Ordinance no. 177/2019 of June 6.

The Ordinance no. 177/2019 of June 6 regulates the provisions of the Decree-Law no. 68/2019 of May 22, regarding the registration of the residences in the Affordable Renting Programme establishing the minimum conditions regarding safety, health and living comfort, the content of the accommodation sheet and the instructions elements to submit in the registration of the residence and the content of the residence enrolment.

It should also be noted the publication of the Ordinance no. 200/2019 of June 28 which establishes the deadline for the initial declaration of the Central Registry of Beneficial Owner and revoke the articles 13 and 17 of the Ordinance no. 233/2018, of August 21.

Regarding case-law, it is worth noting the Judgment of Court of 19 June 2019, in Case C-608/17 which address the question of the application of the concept of the final losses of a non-resident subsidiary to a sub-subsidiary.

Equally noteworthy is the Judgment of the Constitutional Court no. 331/2019, in  Case-law no. 599/17  which decides to judge unconstitutional the paragraph 4 of article 17 G, of the Insolvency and Corporate Recovery Code with wording implemented by the Law no. 16/2012, of April 20, when interpreted in sense that, being requested the insolvency by the provisional administrator appointed by the Court, under the terms of  this precept, must be decreed by the judge, without the hearing  the debtor.

Finally, in the area of Miscellaneous we would like to draw attention to the approval in Council of Ministers of three resolutions regarding the following international agreements: Agreement between The Portuguese Republic and United Kingdom of the Great Britain and North of Ireland, The Agreement between the Portuguese Republic and Food and Agriculture Organization of United Nations and The Additional Agreement to the Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff signed in Ottawa.

The Agreement between The Portuguese Republic and United Kingdom of the Great Britain and North of Ireland concerns the participation in the national local elections of the nationals in each residence States in other country territory.

II. LEGISLATION

Law no. 38/2018 of June 4: Establishes the tax regime of the competition organizers Union des Associations Européenes de Football (UEFA) Nations League Finals 2019 and UEFA Super Cup Final 2020, as well the country associations and sport teams, corresponding players and technical staff, due to the participation in those matches.
https://dre.pt/application/file/a/122506882

Ordinance no. 175/2019 of June 6: Regulates the provisions of the Decree-Law no. 68/2019, of May 22, referring the register of the application of the Affordable Renting Programme.
https://dre.pt/application/conteudo/122520772

Ordinance no. 176/2019 of June 6: Regulates the provisions of the Decree-Law no. 68/2019, of May 22, referring the rent limits in the scope of the Affordable Renting Programme.
https://dre.pt/application/conteudo/122520773

Ordinance no. 177/2019 of June 6: Regulates the provisions of the Decree-Law no. 68/2019, of May 22, referring the enrolment of the residences in the Affordable Renting Programme.
https://dre.pt/application/conteudo/122520774

Ordinance no. 179/2019 of June 7: Establishes the imperative requirements of various guaranties applied to insurance guarantees of the affordable renting.
https://dre.pt/application/conteudo/122529724

Decree-Law no. 79/2019 of June 14: Amends the legal frameworks of the protection in the eventually of invalidity, old-age and death of the general regime of social security, extending the situations in which is possible the attribution of provisional pensions.
https://dre.pt/application/conteudo/122572388

Law no. 43/2019 of June 21: Proceeds to the authentic interpretation of the paragraph 7 of the article 1041 of the Civil Code, added by the article 2 of the Law no. 13/2019, of February 12, which establishes the measures aim to correct the imbalance situations between tenants and landlords, reinforcing the security of the leasing and stability of the urban lease and to protect the tenants in special weakness situation.
https://dre.pt/application/conteudo/122627508

Decree-Law no. 84/2019 of June 28: Establishes the implementing rules of the State Budget for 2019.
https://dre.pt/application/conteudo/122747583

Ordinance no. 200/2019 of June 28: Establishes the deadlines for the initial declaration of the CRBO and revoke the articles 13 and 17 of the Ordinance no. 233/2018 of August 21.
https://dre.pt/application/conteudo/122747585

III. CASE-LAW

III.1. Court of Justice of the European Union

Judgement of the Court of 12 June 2019, Case C‑705/17: Reference for a preliminary ruling. Trade marks. Directive 2008/95/EC. Article 4(1)(b). Likelihood of confusion. Overall impression. Earlier trade mark registered with a disclaimer. Effects of such a disclaimer on the extent of protection of the earlier trade mark.
Summary: “Article 4(1)(b) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as precluding national legislation making provision for a disclaimer whose effect would be to exclude an element of a complex trade mark, referred to in that disclaimer, from the global analysis of the relevant factors for showing the existence of a likelihood of confusion within the meaning of that provision, or to attribute to such an element, in advance and permanently, limited importance in that analysis.”
http://curia.europa.eu/juris/document/document_print.jsf;jsessionid=59064E5CB7856BDFD51954E3C1ED0F10?docid=214883&text=&dir=&doclang=EN&part=1&occ=first&mode=DOC&pageIndex=0&cid=402247

Judgment of the Court of 13 June 2019, Case C‑317/18: Reference for a preliminary ruling. Directive 2001/23/EC.Transfers of undertakings. Safeguarding of employees’ rights. Concept of ‘worker. Substantial change in working conditions to the detriment of the employee.
Summary: “Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, in particular Article 2(1)(d), must be interpreted as meaning that a person who has entered into a contract for a position of trust, within the meaning of the national legislation at issue in the main proceedings, with the transferor may be regarded as an ‘employee’ and thus benefit from the protection which that directive affords, provided, however, that that person is protected as an employee by that legislation and has a contract of employment at the date of transfer, which is a matter for the referring court to determine.

 Directive 2001/23, read in conjunction with Article 4(2) TEU, must be interpreted as meaning that it precludes national legislation which provides that, in the event of a transfer within the meaning of that directive and where the transferee is a municipality, the employees concerned must, first, undergo a public competitive selection procedure and, secondly, have a new relationship with the transferee.”
http://curia.europa.eu/juris/document/document.jsf?text=&docid=214945&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11870045

Judgment of the Court of 13 June 2019, Case C-22/18: Reference for a preliminary ruling. Citizenship of the Union. Articles 18, 21 and 165 TFEU. Rules of a sports association. Participation in the national championship of a Member State by an amateur athlete holding the nationality of another Member State. Different treatment on the basis of nationality. Restriction on free movement.
Summary: “Articles 18, 21 and 165 TFEU must be interpreted as precluding rules of a national sports association, such as those at issue in the main proceedings, under which an EU citizen, who is a national of another Member State and who has resided for a number of years in the territory of the Member State where that association, in which he runs in the senior category and in an amateur capacity, is established, cannot participate in the national championships in those disciplines in the same way as nationals can, or can participate in them only ‘outside classification’ or ‘without classification’, without being able to progress to the final and without being eligible to be awarded the title of national champion, unless those rules are justified by objective considerations which are proportionate to the legitimate objective pursued, this being a matter for the referring court to verify.”
http://curia.europa.eu/juris/document/document.jsf?text=&docid=214943&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11873153

Judgment of the Court of 13 June 2019, Case C-664/17: Reference for a preliminary ruling. Social policy. Directive 2001/23/EC. Scope. Transfer of part of an undertaking. Safeguarding of employees’ rights. Concept of ‘transfer. Concept of ‘economic entity’. Transfer of part of the economic activity of a parent company to a newly created subsidiary.  Identity. Autonomy. Pursuit of an economic activity. Criterion requiring stability of the pursuit of an economic activity. Recourse to factors of production of third parties. Intention to liquidate the entity transferred.
Summary: “Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, in particular Article 1(1)(a) and (b) thereof, must be interpreted as applying to the transfer of a production unit where, first, the transferor, the transferee, or both those persons jointly, act with a view to the transferee pursuing the economic activity engaged in by the transferor, but also with a view to the transferee itself subsequently ceasing to exist, in the context of a liquidation, and second, the unit at issue, lacking the ability to attain its economic object without having recourse to factors of production from third parties, is not totally autonomous, provided that — matters which are for the referring court to establish — first, the general principle of EU law requiring the transferor and transferee not to seek to obtain fraudulently or wrongfully the advantages that they might derive from Directive 2001/23 is observed and, second, the production unit concerned has sufficient safeguards ensuring it access to the factors of production of a third party so as not to be dependent upon the economic choices unilaterally made by the latter.”
http://curia.europa.eu/juris/document/document.jsf?text=&docid=214947&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=11874178

Judgment of the Court of 19 June 2019, Case C-608/17: Reference for a preliminary ruling. Corporation tax.  Group of companies. Freedom of establishment. Deduction of losses of a non-resident subsidiary. Concept of ‘final losses. Application to a sub-subsidiary. Legislation of the State of establishment of the parent company requiring direct ownership of the subsidiary. Legislation of the State of establishment of the subsidiary restricting the set-off of losses and prohibiting them from being set off in the year of liquidation
Summary: “The concept of final losses of a non-resident subsidiary, within the meaning of paragraph 55 of the judgment of 13 December 2005, Marks & Spencer(C‑446/03, EU:C:2005:763), does not apply to a sub-subsidiary unless all the intermediate companies between the parent company applying for group relief and the sub-subsidiary sustaining losses that could be regarded as final are not established in the same Member State.

 For the purposes of the assessment of the finality of a non-resident subsidiary’s losses, within the meaning of paragraph 55 of the judgment of 13 December 2005, Marks & Spencer (C‑446/03, EU:C:2005:763), the fact that the subsidiary’s Member State of establishment does not allow the losses of one company to be transferred to another company in the year of liquidation is not decisive, unless the parent company demonstrates that it is impossible for it to deduct those losses by ensuring, in particular by means of a sale, that they are taken into account by a third party for future periods.

 If the fact referred to in paragraph 2 of the operative part of the present judgment becomes relevant, the extent to which the legislation of the State of establishment of the subsidiary sustaining the losses that could be regarded as final results in it not being possible to set off part of them against the current profits of the loss-making subsidiary or against those profits of another company in the same group is irrelevant.”
http://curia.europa.eu/juris/document/document.jsf?text=&docid=215215&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11876392

III.2. Constitutional Court

Judgment of the Constitutional Court no. 331/2019, Case-law no. 599/17: Decides to judge unconstitutional with the violation of paragraphs 1 and 4 of article 20, in conjunction with paragraph 2 of the article 18, both of Constitution of The Portuguese Republic, the paragraph 4 of article 17 G, of the Insolvency and Corporate Recovery Code with wording implemented by the Law no. 16/2012, of April 20, when interpreted in sense that, being requested the insolvency by the provisional administrator appointed by the Court, under the terms of  this precept, must be decreed by the judge, without the hearing  the debtor.
https://www.tribunalconstitucional.pt/tc/acordaos/20190331.html

III.3. Courts of Justice

Judgement of Supreme Court of Justice of June 5, Case no. 666/17.2T8MAI.P1.S1: Factual basis. Legal matter. Conclusive fact. Duty of loyalty. Duty of non-competition. Just cause for dismissal.
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/deb568a032fca58480258411004cc1ed?OpenDocument

Judgement of Supreme Court of Justice of June 18, Case no. 3145/17.4T8LRA.C1.S2:  Judicial appointment of administrator. Annulment of social deliberation. Designation of Administrators.
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/a173d9c9a52f1d30802584200032e225?OpenDocument

III.4. Administrative and Tax Court

Judgement of Supreme Administrative Court of June 19, Case no. 049/19.0BECTB-S: Tax enforcement. Claim. Suspensive effect.
http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/6e47369ae58fa1ea802584250051177b?OpenDocument&ExpandSection=1#_Section1

IV. BRIEFS

IV.1. DOCTRINE
IV.1.1. Monographs and Periodic Publications
Leonildo João Lourenço Manuel, Jacinto Domingos Manuel e Daniela Naulila Almeida Simão, ESCRITOS SOBRE FINTECH E CORPORATE FINANCE Experiências e Desafios no Contexto Africano, AAFDL, Junho 2019
Nelson Tereso, O Lado Prático do Direito Sucessório Resolução de Hipóteses Práticas e Minutas¸ Editor: AAFDL, Junho 2019.

IV.1.2. Generic Guidelines & Cia

Doctrinal Record in Case no. 1390/2018, with Order of the Deputy General Director of IR, of 05/10/2018
Subject: Tax residence – income earned in Brazil and Portugal
http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/informacoes_vinculativas/rendimento/cirs/Documents/PIV_13771.pdf

IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation
The Council  of Ministers of 13 June 2019 approved three resolutions regarding the following international agreements: Agreement between the Portuguese Republic and United Kingdom of the Great Britain and North of Ireland concerning the participation in the national local elections of nationals in each resident States in other country territory, signed on 12 June 2019, Agreement between the Portuguese Republic and the Food and Agriculture Organization of the United Nations for the establishment of an  FAO Partnership and Liaison Office in Lisbon, signed in Rome, on 4 December 2018, and The Additional Agreement to the Agreement on the status of the North Atlantic Treaty Organization, National Representatives and International Staff signed in Ottawa, on 20 September 1951, between the Portuguese Republic and North Atlantic Treaty Organization, about the Status OTAN Communications and Information Agency in the Portuguese Republic.
https://www.portugal.gov.pt/pt/gc21/governo/comunicado-de-conselho-de-ministros?i=282

V. INDUSTRIAL PROPERTY

Trade marks Directive: New version of the Joint Communication. It was published the update version of the Joint Communication on a presentation of new type of trade marks.
https://inpi.justica.gov.pt/Noticias-do-INPI/Diretiva-de-Marcas-Nova-versao-da-Comunicacao-Comum-3

Published the report about “Intellectual Property Crime Threat Assessment “. The Assessment by EUIPO and Europol confirms the links between counterfeits and organised crime in European Union.
https://anti-contrafacao.gov.pt/Noticias/Publicado-estudo-sobre-Avaliacao-da-ameaca-da-criminalidade-na-PI-2019

 

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