e-legal® october 2019

case-legal19

I. EDITORIAL – VOLUNTARY CREDIT CLEARING: CREATION OF THE ELECTRONIC CLEARING SYSTEM (“ECOMPENSA”)

For the month of October, we highlight the publication of the Decree-Law no. 150/2019 of October 10 and the Ordinance no. 356/2019 of October 8.

The Decree-Law no. 150/2019 of 10 October regulates the Electronic Compensation System (ECOMPENSA), for the purpose of voluntary credit clearing, with the dual purpose: to promote this extinction way of obligations and to guard against risks that may be associated with it. The voluntary adhesion to these electronic platforms is allowed only to natural or legal persons holding in Portugal a tax identification number or a legal entity identification number, being only eligible for voluntary compensation, within the scope of ECOMPENSA, the overdue and demandable pecuniary obligations arising from a juridical act or a legal business.

In its turn, the Ordinance no. 356/2019 of October 8 regulates the electronic communications of courts of justice to the Banco de Portugal, in proceedings regulated by the Insolvency and Corporate Recovery Code.

Regarding case-law, its is worth nothing the Judgements of the Constitutional Court no. 544/2019 in Case no. 570/2018, and no. 548/2019, in Case no. 146/2019,  in which the constitutionality of the rule contained in article 135-B of the Municipal Property Tax Code was discussed, specifically the extension of the application of the Additional to the Municipal Property Tax  to construction lands for commercial, industrial, service or other purposes, as well as the Judgement no. 622/2019, in Case no. 915/2018, which judged as unconstitutional the 2nd paragraph of the Article 236 of Law no. 83-C / 2013, of December 31 in conjunction with 16th paragraph of the Article 8 of the Legal Regime applicable to Closed Real Estate Investment Funds for Housing Lease and Real Estate Investment Companies for Housing Lease.

Finally, in miscellaneous, we highlight the approval of the final version of Situation Plan of National Maritime Space Management for the mainland Portugal, Madeira and Extended Continental Shelf subdivisions.

II. LEGISLATION

Ordinance no. 347/2019 of October 4: Regulates the electronic communications between courts of justice and the child support guarantee fund (“Fundo de Garantia de Alimentos Devidos a Menores”).
https://dre.pt/application/conteudo/125069177

Ordinance no. 348/2019 of October 4: Regulates the electronic communications between the courts of justice and the Social Security in tutelary civil proceedings.
https://dre.pt/application/conteudo/125069178

Regional Regulatory Decree no. 8/2019/A of October 4: Regulates the Regional Legislative Decree no. 8/2018/A of July 5, that created the Azores Economic and Social Council.
https://dre.pt/application/conteudo/125069180

Ordinance no. 355/2019 of October 7: Amends the Ordinance no. 37/2018 of January 29, that approves the official report model and the content of the notification that companies, or operators of public transport services must use.
https://dre.pt/application/conteudo/125074537

Ordinance no. 356/2019 of October 8: Regulates the electronic communications of the courts of justice to the Banco de Portugal, in proceedings regulated by the Insolvency and Corporate Recovery Code.
https://dre.pt/application/file/a/125097186

Ordinance no. 357/2019 of October 8: Regulates the electronic communications between the courts of justice and the network of public schools, supervised by the Ministry of Education.
https://dre.pt/application/conteudo/125085418

Ordinance no. 358/2019 of October 8: Regulates the electronic communications between the information and support system of the courts, the IT system supporting the activity of enforcement officers, and the information systems of the Social Security, the Salary Guarantee Fund and the Civil Servants Pension Fund (“Caixa Geral de Aposentações”), in the context of garnishment executions, social benefits and pensions.
https://dre.pt/application/conteudo/125085419

Ordinance no. 359/2019 of October 8: Regulates the distance teaching system, established by the Decree-Law no. 55/2018 of July 6, by defining the rules and procedures concerning the curriculum and attendance system.
https://dre.pt/application/conteudo/125085420

Decree-Law no. 149/2019 of October 9: Reinforces the announcement mechanisms of the procedures of identification and recognition of rustic or mixed buildings without a known owner.
https://dre.pt/application/conteudo/125085454

Decree-Law no. 150/2019 of October 10: Regulates the Electronic Clearing System (ECOMPENSA), a system of voluntary and multilateral clearing of credits through electronic platforms accredited for this purpose.
https://dre.pt/application/conteudo/125179224

Ordinance no. 366/2019, of October 10: Sets the geographic areas referred in Article 39 paragraph 4 and 5, and in Article 45 paragraph 3 of Statute of the Administrative and Tax Courts, approved by Law no. 13/2002, of February 19, modified and republished by Law no. 114/2019, of September 12.
https://dre.pt/application/conteudo/125179226

Ordinance no. 370/2019, of October 14: Approves the new model forms for the purposes established in Article 57 paragraph 1 of Personal Income Tax Code («CIRS»), as well as the its guidelines with effect from January 1 of 2020, to declare income from 2015 and the following years.
https://dre.pt/application/file/a/125279932

Ordinance no. 373/2019 of October 15: Amends the Ordinance no. 214/2019 of July 5, that created the supporting measure “Apoio ao Regresso de Emigrantes a Portugal” («Assisted Return of Emigrants to Portugal»), in the program “Regressar”.
https://dre.pt/application/conteudo/125290656

Ordinance no. 374/2019 of October 16: Approval of the Regulation of the Program “Arrendamento com Projeto de Reabilitação” (leasing with rehabilitation project).
https://dre.pt/application/conteudo/125371469

Decree-Law no. 153/2019 of October 17: Amends the rules of social protection in the event of unemployment of dependant employees.
https://dre.pt/application/conteudo/125417313

Law no. 123/2019 of October 18: Third amend to the Decree-Law no. 220/2008 of November 12, that establishes the legal framework of fire protection and safety in buildings.
https://dre.pt/application/conteudo/125468543

Decree-Law no. 156/2019, of October 22: Creates a system of collection, registry and analysis, by the State, of data on science and technology, relating to human resources, institutions, activity and scientific production, projects, programmes and funding.
https://dre.pt/application/conteudo/125560575       

Decree-Law no. 157/2019 of October 22: Creates the registry of Portuguese foundations and foreign foundations that develop their purposes in Portugal, under the terms of the Framework Law on Foundations.

https://dre.pt/application/file/a/125560286

Decree-Law no. 158/2019 of October 22: Determines the conditions of operation and access to the Single Logistics Window (JUL), particularly as regards its governance, management and operation.
https://dre.pt/application/file/a/125560287

Regulatory Decree no. 6/2019 of October 22: Amends the Traffic Signalling Regulation in line with the last amendment made to the Road Traffic Code.
https://dre.pt/application/file/a/125560288

Ordinance no. 382/2019 of October 23: Sixth amend to the Regulation that establishes common rules about the European Social Fund, approved by and annexed to Ordinance no. 60-A/2015, of March 2.
https://dre.pt/application/file/a/125603062

Decree-Law no. 160/2019 of October 24: Chooses the management entities and approves the conditions and special terms of the concession contracts for the assignment of the hydraulic infrastructure management.
https://dre.pt/application/file/a/125633810

Decree-Law no. 161/2019 of October 25: Creates the “Revive Natureza” Fund and defines the special scheme of allocation, monetization, intervention and sale of rights over real estate included therein. The Fund is a means of enhancing the built and natural heritage, with the aim of promoting regional development through tourism activities and is established for an initial period of 30 years that may be extended.
https://dre.pt/application/file/a/125697282

Decree-Law no. 162/2019 of October 25: Establishes the legal scheme applicable to self-consumption of renewable energy, individual, collective or by renewable energy communities.
https://dre.pt/application/file/a/125697283

Decree-Law no. 163/2019 of October 25: Amends the Corporate Income Tax Code («CIRC») tax scheme relating to the Welfare Fund for Lawyers and Solicitors («CPAS»).
https://dre.pt/application/file/a/125697284

Decree-Law no. 164/2019 of October 25: Establishes the scheme for the implementation of residential childcare, a measure to promote the rights and protection of children and adolescents in danger enshrined in the Law for the Protection of Children and Adolescents in Danger.
https://dre.pt/application/file/a/125697285

Ordinance no. 390/2019 of October 29: Amends the Ordinance no. 224/2015 of July 27, which established the legal framework for prescribing and dispensing medicines or health products. It also defines the information duties that shall be provided to users.
https://dre.pt/application/conteudo/125781753

Decree-Law no. 165/2019 of October 30: Amends the Value Added Tax Code, establishing a derogation to the general rule of tax incidence of VAT on certain transfers of forestry production goods.
https://dre.pt/application/conteudo/125815920

III. CASE-LAW

III.1. Court of Justice of the European Union

Judgement of the Justice Court of October 1, Case C-673/17: Reference for a preliminary ruling. Directive 95/46/EC. Directive 2002/58/EC. Regulation (EU) 2016/679. Processing of personal data and protection of privacy in the electronic communications sector. Cookies. Concept of consent of the data subject. Declaration of consent by means of a pre-ticked checkbox.
Summary: “Article 2(f) and of Article 5(3) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in conjunction with Article 2(h) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and Article 4(11) and Article 6(1)(a) 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 (General Data Protection Regulation), must be interpreted as meaning that the consent referred to in those provisions is not validly constituted if, in the form of cookies, the storage of information or access to information already stored in a website user’s terminal equipment is permitted by way of a pre-checked checkbox which the user must deselect to refuse his or her consent.

Article 2(f) and Article 5(3) of Directive 2002/58, as amended by Directive 2009/136, read in conjunction with Article 2(h) of Directive 95/46 and Article 4(11) and Article 6(1)(a) of Regulation 2016/679, are not to be interpreted differently according to whether or not the information stored or accessed on a website user’s terminal equipment is personal data within the meaning of Directive 95/46 and Regulation 2016/679.

Article 5(3) of Directive 2002/58, as amended by Directive 2009/136, must be interpreted as meaning that the information that the service provider must give to a website user includes the duration of the operation of cookies and whether or not third parties may have access to those cookies.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62017CJ0673&from=PT

Judgement of the Justice Court of October 9, Case C548/18: Reference for a preliminary ruling. Area of freedom, security and justice. Judicial cooperation in civil matters. Regulation (EC) No 593/2008. Law applicable to contractual obligations. Article 14. Assignment of claims. Third-party effects.
Summary: “Article 14 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (‘Rome I’) must be interpreted as not designating, directly or by analogy, the applicable law concerning the third-party effects of the assignment of a claim in the event of multiple assignments of the claim by the same creditor to successive assignees.”.
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62018CJ0548&from=PT

Judgement of the Justice Court of October 17, Case C653/18: Reference for a preliminary ruling. Taxation. Value added tax (VAT). Directive 2006/112/EC. Article 146. Exemptions on exportation. Concept of “supply of goods”. Article 131. Conditions laid down by the Member States. Principle of proportionality. Principle of fiscal neutrality. Evidence. Tax evasion. Practice of a Member State consisting in refusing the right to exemption where the person acquiring the goods exported is not identified.
Summary: “Article 146(1)(a) and (b) and Article 131 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the principles of fiscal neutrality and proportionality must be interpreted as precluding a national practice, such as that at issue in the main proceedings, which consists in considering in all cases that there is no supply of goods, within the meaning of that former provision, and in refusing as a result the value added tax (VAT) exemption, where the goods concerned were exported to a destination outside the European Union and where, following their exportation, the tax authorities found that the person acquiring those goods was not the person stated on the invoice issued by the taxable person but another entity which has not been identified. In such circumstances, the VAT exemption provided for in Article 146(1)(a) and (b) of that directive must be refused if the failure to identify the person actually acquiring the goods prevents it from being proved that the transaction at issue constitutes a supply of goods within the meaning of that provision or if it is established that that taxable person knew or ought to have known that that transaction was part of a fraud committed to the detriment of the common system of VAT.

Directive 2006/112 must be interpreted as meaning that where, in those circumstances, there is a refusal to grant the value added tax (VAT) exemption provided for in Article 146(1)(a) and (b) of Directive 2006/112, the transaction in question should be considered not to constitute a taxable transaction and, accordingly, not to confer entitlement to the deduction of input VAT.
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62018CJ0653&from=PT

III.2. Constitutional Court

Judgment of the Constitutional Court no. 544/2019, Case no. 570/20191 and no. 548/2019, Case no. 146/20192, of October 16: The constitutionality of the 2nd paragraph of Article 135 – B of the Municipal Property Tax Code was discussed, namely the incidence of Additional to Municipal Property Tax (“AIMI”) on the construction lands for commercial, industrial, service or other purposes, etc. within the limits of constitutional principles. In both cases the Court has not found a basis to consider the above-mentioned legal regulation as unconstitutional.
1https://www.tribunalconstitucional.pt/tc/acordaos/20190544.html
2https://www.tribunalconstitucional.pt/tc/acordaos/20190548.html

 

Judgment of the Constitutional Court no. 622/2019, Case no. 915/2018, of October 23: Judged unconstitutional the 2nd paragraph of the Article 236 of Law no. 83-C / 2013, of December 31 in conjunction with 16th paragraph of the Article 8 of the Legal Regime Applicable to Closed Real Estate Investment Funds for Housing Lease and Real Estate Investment Companies for Housing Lease, according to which the Municipal Property Tax exemptions as well as Stamp Duty Tax expire if the acquired property is sold within three years from January 1, 2014, for breach of the principle of protection of trust arising from Article 2 of the Constitution.
http://www.tribunalconstitucional.pt/tc/acordaos/20190622.html

III.3. Courts of Justice

Judgement of the Supreme Court of Justice of October 1, Case no. 1012/15.5T8VRL-AM.G1.S2: Insolvency. Insolvency administrator. Preliminary contract of sale. Real estate. Standardising case-law. Promissory purchaser. Consumer. Delivery (“traditio”) of the asset. Right of retention.
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/146bac6a9f94799780258486004d6224?OpenDocument

Judgement of the Supreme Court of Justice of October 3, Case no. 189/18.2T8GRD.C1.S1: Public limited company. General assembly. Convocation. Company resolution. Special procedure. Bad faith litigation.
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/6f8d3f0700d3d1ba802584880056b7b7?OpenDocument

 

III.4. Administrative and Tax Court

Judgement of the Supreme Administrative Court of October 10, Case no. 0486/16.1BEVIS: http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/c0acc87040bcdbe780258493005562ee?OpenDocument&ExpandSection=1#_Section1

Judgement of the Administrative Supreme Court of October 10, Case no. 01063/16.2BELRA: Tax infraction; Non-payment of tax; VAT; General Taxation Infringement Regime.
http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/046ae74e3bbad8768025849600389ba1?OpenDocument&ExpandSection=1#_Section1

IV. BRIEFS

IV.1. DOCTRINE
IV.1.1. Monographs and Periodic Publications
Hugo Ramos Alves, Direito Aéreo, Editor: AAFDL, outubro 2019;
José António de França Pitão, Seguro Automóvel Obrigatório – Anotado, Editor: Quid Juris, outubro 2019.

IV.1.2. Generic Guidelines & Cia

Circulate letter no. 30213 of 01.10.2019, of Deputy General Director, of VAT Tax Management Area
Subject: Decree-Law no. 28/2019, of February 15 – invoice and other relevant documents processing. The storage of its records as well as of support documents.
http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_30213_2019.pdf

Circulate letter no. 4/2019, of 08.10.2019, of Deputy Director-General of Personal Income Tax (IRS)
Subject: the tax regime of non-habitual residents.
http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Circular_4_2019.pdf

Circulate letter no. 20213, of 23.10.2019, of Deputy General Director of Income Tax and International Relations
Subject: Previous years income statement
http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_20213_2019.pdf

IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation
It was approved the final version of the Situation Plan of the National Maritime Space Management («PSOEM») for the mainland Portugal, Madeira and the Extended Continental Shelf subdivisions, strengthening the Continent’s link with the archipelagos of Madeira and the Azores and consolidating the geopolitical component of the so-called Portuguese Strategic Triangle as a maritime centrality in the Atlantic basin.
https://www.portugal.gov.pt/pt/gc21/governo/comunicado-de-conselho-de-ministros?i=304

V. INDUSTRIAL PROPERTY

As of 1 October 2019, the African Intellectual Property Organization (OAPI) has made its trademark data available to the TMview search tool, and more than 26.000 trademarks from OAPI were added.
https://inpi.justica.gov.pt/en-gb/INPI-News/OAPI-joins-TMview

OMPI has published the report “World Intellectual Property Indicators 2019” with global indicators of industrial property in 2018. There has been a new record in patents, trademarks and industrial designs requests.
https://inpi.justica.gov.pt/Noticias-do-INPI/OMPI-publica-relatorio-com-indicadores-mundiais-de-PI-de-2018

As of 21 October 2019, the Intellectual Property Bureau of the Principality of Liechtenstein has made its trademark data available to the TMview search tool, and more than 7.500 trademarks were added. There are now 71 offices participating in TMview.
https://inpi.justica.gov.pt/Noticias-do-INPI/AWW-adere-ao-TMview

The Official Journal of the European Union published the legal instruments formalizing the accession of the European Union to the Geneva Act of the Lisbon Agreement on designations of origin and geographical indications.
https://inpi.justica.gov.pt/Noticias-do-INPI/Adesao-da-Uniao-Europeia-ao-Ato-de-Genebra-do-Acordo-de-Lisboa

 

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