e-legal® september 2019

case-legal19

I. EDITORIAL – AMENDMENT TO THE STATUTE OF THE ADMINISTRATIVE AND TAX COURTS; AMENDMENT TO THE CODE OF CIVIL PROCEDURE

The month of September at the legislative perspective, was marked, by the approval and publication of the relevant law which introduces the twelfth amendment to the legal frameworks of the Administrative and Tax courts status, approved by the Law no. 13/2002, of February 19, and by the amendment to the Code of Civil Procedure in terms of executive process, application for review and inventory process, by Law no. 117/2019 of September 13.

This new law revoked the current legal framework of the inventory procedure. From now on, notary inventory is an exception and not a rule. This new law also amended the regime of procedures for the payment of pecuniary obligations emerging from contracts of a certain value.

Also, the Law no. 114/2019 of September 12 allows administrative and tax courts to decide on consumer matters. The Law no. 118/2019 of September 17, which amended procedural regimes at administrative and tax jurisdiction.

A final note should also be made to the amendment of the Labour Code (Law no. 93/2019 of September 4) and to the adjustment of the Labour Procedure Code to the Code of Civil Procedure (Law no. 107/2019 of September 9), as well as the amendment of the Civil Code, by the Law no. 85/2019 of September 3, which repeals the legal institute of internuptial period (or internuptial term).

Regarding case-law, it is worth noting the Judgement of the Supreme Court of Justice of September 12, Case no. 274/12.4TBVCT.G1.S1, which clarified the liability regime towards any third party applied to a consortium that does not have legal personality, stating that such liability regime will derive from the general rules applicable, and not from the consortium agreement, so, the existence of a consortium agreement won’t be relevant, because it will not determine the applicable liability regime.

Finally, in miscellaneous we highlight, the approval of the Decree-law that transposes the Directive No 2010/65/EU, related to Maritime Law and the publication of the new ordinance that amends the Statutes of Portuguese IP Office, by the Ordinance no. 326/2019 of September 23. Finally, it was published the first application for registration without graphic representation (1st movement trademark).

II. LEGISLATION

Law no. 72/2019 of September 2: Establishes the legal framework on the regularization of the «chãos de melhoras» (“improvements of floors”), by creating a temporary unilateral right of acquisition (right of squeeze-out) of the ownership (property right) of the land (soil) or the ownership of the existing buildings on the land. It also establishes the legal framework on the urban regularization, on the São Miguel island, Azores archipelago.
https://dre.pt/application/file/a/124347442

Law no. 83/2019 of September 3: Establishes the basis of the right to housing and the fundamental responsibilities and tasks of the State in the effective guarantee of that right to all citizens, in accordance with the Constitution.
https://dre.pt/application/file/a/124392098

Law no. 85/2019 of September 3: Amends the Civil Code, repealing the legal institute of internuptial term (period): revokes sub-paragraph b) of article 1604.º, article 1605.º and paragraph 1 of article 1650.º, as well as provisions of the Decree-Law no. 272/2001, of October 13, and of the Decree-Law no. 322-A/2001 of December 14.
https://dre.pt/application/file/a/124392100

Decree-Law no. 133/2019 of September 3: Approval of the legal framework on higher education distance teaching system.
https://dre.pt/application/file/a/124392105

Ordinance no. 287/2019 of 3 September: Amends the Ordinance no.112-A/2011 of 22 March, which binds the Tax Authorities to the Administrative Arbitration Center.
https://dre.pt/application/file/a/124392108

Law no. 90/2019 of September 4: Reinforces parenting protection, amending the Labour Code and the Decree-Law no. 89/2009 April 9 and no. 91/2009 April 9.
https://dre.pt/application/file/a/124418379

Law no. 91/2019 of 4 September: Establishes the regime for solving conflicts of jurisdiction between the Judicial Courts and the Administrative and Tax Courts, regulating the composition, competence, functioning and the procedural at the conflict-resolution court.
https://dre.pt/application/file/a/124418380

Law no. 93/2019 of September 4: Amends the Labour Code and respective regulation, and the Code on the Contributory Regimes of the Protection Systems of Social Security.
https://dre.pt/application/file/a/124418382

Law no. 95/2019 of September 4: Approves the Health Basis Law and revokes the Law no. 48/90 of August 24, and the Decree-Law no. 185/2002, of August 20.
https://dre.pt/application/file/a/124418384

Law no. 97/2019 of September 4: First amendment, by parliamentary consideration, to the Decree-Law no. 19/2019 of January 28, that approves the regime of investment and property management firms.
https://dre.pt/application/file/a/124418386

Law no. 98/2019 of 4 September: Amends the Tax Code about the corporate income tax in subjects of impairments at credit institutions and other financial institutions, the General System of Tax Infractions and the special system applicable to the income tax assets.
https://dre.pt/application/file/a/124418387

Law no. 100/2019 of September 6: Approves the Statute of the Informal Caregiver and amends the Code on the Contributory Regimes of the Protection Systems of Social Security and the Law no. 13/2003 of May 21.
https://dre.pt/application/file/a/124500807

Law no. 107/2019 of September 9: Amends the Labour Procedure Code, adjusting it to the Code of Civil Procedure.
https://dre.pt/application/file/a/124539745

Law no. 114/2019 of 12 September: Introduces the twelfth amendment to the legal frameworks of the Administrative and Tax Courts status approved by the Law no. 13/2002, of 19 February.
https://dre.pt/application/file/a/124642853

Law no. 117/2019 of September 13: Amends the Code of Civil Procedure in terms of executive process, application for review and inventory process, repeals the legal regime of inventory process, and approves the legal regime of notarial inventory, also amending the regime of procedures for compliance of pecuniary obligations emerging from contracts of value that is not higher than the remit of the trial court (Court of First Instance).
https://dre.pt/application/file/a/124680536

Law no. 118/2019 of 17 September: Modifies the procedure systems in the scope of administrative and tax jurisdiction by introducing several legislative changes.
https://dre.pt/application/file/a/124750648

Ordinance no. 310/2019 of September 17: Amends the Regulation of Management of the Portuguese Aid and Investment Fund in Mozambique.
https://dre.pt/application/file/a/124750655

 Law no. 119/2019 of September 18: Amendment to several tax Codes.
https://dre.pt/application/file/a/124793188

Law nº. 120/2019 of September 19: Establishes the execution, in the Portuguese legal order, of the of the Regulation (EU) 2017/1852 of the Council of 10 October 2017, of mechanisms for the resolution of conflicts involving the competent authorities from Portugal and others State-Members from European Union as a result of interpreting and applying agreements and international conventions to avoid income double taxation.
https://dre.pt/application/file/a/124831417

Ordinance no. 323/2019 of September 19: Regulates the creation of the action (provision) CONVERTE+, consisting in a transitional support for the conversion of fixed-term employment contracts into open-ended contracts of employment, through the granting of a financial support to the employer.
https://dre.pt/application/file/a/124831425

Decree-Law no. 144/2019 of September 23: This decree-law transfers from the Bank of Portugal to the Securities Market Committee (CMVM) the powers of prudential supervision of investment fund management companies and credit securitisation fund management companies (SGFTC).
https://dre.pt/application/file/a/124916870

Ordinance no. 326/2019 of September 23: Amends the Statutes of the National Industrial Property Institute – INPI, Public Institute.
https://dre.pt/application/file/a/124916873

Decree-Law no. 147/2019 of September 30: Approves contingency measures to be applied in the event of Britain leaving the European Union without an agreement.
https://dre.pt/application/file/a/125016504

 

III. CASE-LAW

III.1. Court of Justice of the European Union

Judgement of the Justice Court of 5 September, Case C‑145/18: Preliminary ruling. Common system of value added tax (IVA). Directive 2006/112/CE. Article 103. °, no. 2, (a). Article 311. °, no. 1, point 2, Addendum IX, part A, point 7. Reduced rate of value added tax (IVA). Art objects. Concept. Realised and taken photos by the artist or under his control, signed and numbered and limited to thirty copies. National legislation that limited the application of the value added tax (VAT) just to the photos for artistic purposes.
Summary: “In order to be regarded as works of art eligible for the reduced rate of value added tax (VAT) under Article 103(1) and (2)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with point 2 of Article 311(1) of that directive and point 7 of Part A of Annex IX thereto, photographs must meet the criteria set out in that point 7, in that they have been taken by their creator, printed by him or under his supervision, signed and numbered and limited to 30 copies, to the exclusion of all other criteria, in particular the assessment by the competent national tax authority of their artistic character.

Article 103(1) and (2)(a) of Directive 2006/112, read in conjunction with point 2 of Article 311(1) of that directive and point 7 of Part A of Annex IX thereto, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which restricts the application of the reduced rate of VAT only to photographs that have artistic character, in so far as the existence of such artistic character is subject to an assessment by the competent national tax authority which is not made within the confines of objective, clear and precise criteria set by that national legislation, making it possible to determine precisely the photographs to which that legislation reserves the application of the reduced rate of VAT, in such a way as to avoid infringing the principle of fiscal neutrality.”
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62018CJ0145&from=PT

Judgement of the Justice Court of 18 September, in joint cases C–662/18 and C–672/18: Preliminary ruling. Direct taxation. Directive 90/434/CEE. Directive 2009/133/CE. Article 8. Capital gains generated by operations involving exchanges of papers. Transfers of securities received for the Exchange of shares. Deferred taxation of the asset. Taxation of the shareholders. Taxation following rules for determining the different taxable amounts and different tax rates. Deductions of taxable amounts which take account the detention time of the securities.
Summary: “Article 8(1) and (6) of Council Directive 2009/133/EC of 19 October 2009 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States and Article 8(1) and the second subparagraph of Article 8(2) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States must be interpreted as meaning that, in the context of an exchange of securities, they require the application, to the capital gain relating to the securities exchanged and deferred for taxation and to the capital gain resulting from the transfer of the securities received in exchange, of the same tax treatment, in the light of the tax rate and the application of a tax allowance to take account of the length of time the securities were held, as that which would have been applied to the capital gain which would have been realised on the transfer of the securities existing before the exchange if the exchange had not taken place.”

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62018CJ0662&from=PT

III.2. Constitutional Court

Judgment of the Constitutional Court no. 465/2019, Case-law no. 829/2019: Decides to judge unconstitutional a set of articles of the Law no. 32/2006, of 26 July, for breaching the rights of the pregnant woman and the right to establish a family.
http://www.tribunalconstitucional.pt/tc/acordaos/20190465.html

III.3. Courts of Justice

Judgement of Supreme Court of September 12, Case no. 274/12.4TBVCT.G1.S1: Consortium agreement. Joint liability. Non-contractual liability. Road accident. Road infringement.
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/cb282b488bbfd63680258473005dd855?OpenDocument

Judgement of Supreme Court of Justice of September 12, Case no. 125/16.0T8VLF-A.C1.S1: Bill of exchange. Prescription. Chirograph. Guarantee. Surety. Executive claim. Encumbrance of allegation. Form of credit. Exchange relation. Motion to stay execution (debtor).
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/56237a293c76100f80258473005b5906?OpenDocument

Judgement of Supreme Court of Justice of September 12, Case no. 2604/15.8T8LRA.C1.S1: Culpa in contrahendo. Contractual liability. Non-contractual liability. Prescription. Duty to inform.
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/5f4c9a1a442edabe80258473005ce02f?OpenDocument

III.4. Administrative and Tax Court

Judgement of the Administrative Central South Court of 16.09.2019, case no. 1117/09.1BELRA: The end of inspection. “Power of attraction” of the B category income.
http://www.dgsi.pt/jtca.nsf/170589492546a7fb802575c3004c6d7d/afeb0a126c22db56802584780034cca3?OpenDocument

Judgement of the Administrative Central South Court of 16.09.2019, case no. 2341/10.0BELRS: Opposition to tax execution. “De facto” management.
http://www.dgsi.pt/jtca.nsf/170589492546a7fb802575c3004c6d7d/b317c4e85e27382f80258478003532fe?OpenDocument

IV. BRIEFS

IV.1. DOCTRINE
IV.1.1. Monographs and Periodic Publications
Rui Tavares Lanceiro, “O PRINCÍPIO DA COOPERAÇÃO LEAL E A ADMINISTRAÇÃO – A EUROPEIZAÇÃO DO PROCEDIMENTO DE ACTO ADMINISTRATIVO”, AAFDL, setembro de 2019

IV.1.2. Generic Guidelines & Cia

Circulate letter no. 15727 of 18.09.2019, of Deputy Director-General, of Customs management Area
Subject: Online publication of the new consolidated version of implementing UCC (EA- UCC) act – Union Customs Code.
http://info-aduaneiro.portaldasfinancas.gov.pt/pt/legislacao_aduaneira/oficios_circulados_doclib/Documents/Oficio_Circulado_15727_2019.pdf

Circulate letter no.: 20212, of 24.09.2019, of Deputy Director-General of International Affairs
Subject: Amendments of the article no. 67 of Corporate Tax Code by law no. 32/2019, of May 3, Law enforcement in time.
http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_20212_2019.pdf

Circulate letter no. 35.110, of 24.09.2019, of Deputy Director-General of Special Tax Services and Vehicle tax
Subject: BREXIT – ISV (Vehicle Tax)
http://info-aduaneiro.portaldasfinancas.gov.pt/pt/legislacao_aduaneira/oficios_circulados_doclib/Documents/Oficio_Circulado_35110_2019_DSIECIV.pdf

IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation
It was approved the Decree-Law, establishing the operating and access conditions applicable to the Single Logistics Window (SLW), concerning its governance, management and operation, achieving a 2018 SIMPLEX measure.

The diploma transposes to the Portuguese Law the Directive No 2010/65/EU on reporting formalities for ships arriving in and/or departing from ports of the Member States.

The creation of the SLW aims at increasing the efficiency of logistics chains and economies of scale between ports and users, simplifying, harmonising and dematerializing procedures and maximizing the use of national infrastructures for the transport of goods with greater environmental sustainability.
https://www.portugal.gov.pt/pt/gc21/governo/comunicado-de-conselho-de-ministros?i=302v

 

 

V. INDUSTRIAL PROPERTY

1st movement trademark: Publication of the first application for registration without graphic representation.
https://inpi.justica.gov.pt/Noticias-do-INPI/1ª-marca-de-Movimento

Launching of the Industrial Property Portal by OMPI: The new portal guarantees free access to all online of Industrial Property services provided by the Organization.
https://www.wipo.int/portal/en/news/2019/article_0033.html

New Statutes of the National Industrial Property Institute (INPI) – Publication of the new ordinance that amends the Statutes of INPI: Ordinance no. 326/2019 of September 23.
https://inpi.justica.gov.pt/Portals/6/PDF%20INPI/Quem%20somos/Portaria_326_2019_29%20de%20setembro.pdf?ver=2019-09-23-150153-277

 

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