e-elegal® november 2019

case-legal19

I. EDITORIAL – MINIMUM GUARANTEED MONTHLY WAGE

For the month of November, we highlight, on the legislative level, the approval and publication of the Decree-Law no. 167/2019 of 21 November, which updated the amount of the guaranteed monthly minimum wage to 635 euros, from 1 January 2020.

It is also worth mentioning the publication, on 18 November, of State Secretary for Tax Affairs Order no. 10551 of October 1, which approved the amendments of the corporate income tax return «Modelo 22», with the respective annexes and instructions for completing, as well as the Ordinance no. 392/2019 of 5 November which established the minimum requirements for licensing, installation, organisation and operation, human resources and technical facilities of clinical pathology or clinical analyses laboratories and of the respective collection points.

Regarding case-law, we emphasise the Judgment of the Court of Justice of the European Union of November 7, Case no. C68/18, on the interpretation of 3th paragraph of Article 2, and 3th paragraph of Article 21 of Council Directive 2003/96/EC of 27 October 2003, restructuring the Community framework for the taxation of energy products and electricity.

Concerning national case-law, it is noteworthy the Judgement of the Lisbon Court of Appeal of 7 November, Case no. 119/18.1YHLSB.L1-8, which, in the context of trademarks, clarified that the affinity between goods and/or services is assessed with reference to the goods and/or services of each trademark, and not the actual activity carried out by the trademark owners, and the Judgment of the Évora Court of Appeal of November 7, Case no. 8677/18.4T8STB-A.E1, which decided on the establishment of a complex enforcement order by the combination of 1st paragraph of Article 14-A of the New Urban Leasing Regime with the point d) of 1st paragraph of Article 703 of the Code of Civil Procedure, including such title the lease agreement and the proof of communication to the lessee of the amount owed, with a view to the enforcement for payment of a certain amount corresponding to rents, charges or expenses on behalf of the lessee.

Finally, in Miscellaneous, we point out the approval of the Decree-Law that establishes the organisation and functioning of the XXII Constitutional Government, adopting the appropriate structure to fulfil the transversal priorities of a Government that collaborates in various areas of governance and to respond to the challenges of the Presidency of the European Union in 2021.

II. LEGISLATION

Regional Legislative Decree no. 22/2019/A, of November 5: Approves the legal framework of support to the informal caregiver in the Autonomous Region of the Azores.

https://dre.pt/application/conteudo/125874621

Ordinance no. 392/2019 of November 5:  Establishes the minimum requirements related to the licensing and functioning of clinical pathology laboratories or clinical analysis laboratories, as well as regulates other general aspects of these laboratories.

https://dre.pt/application/conteudo/125874620

Regional Legislative Decree no. 23/2019/A, of November 6: Approves the Legal Regime of Combustible Gas Installations in real estate, in the Autonomous Region of the Azores.

https://dre.pt/application/conteudo/125902778

Regional Legislative Decree no. 10/2019/A, of November 8: First amendment to the Regional Regulatory Decree no. 1/2015/A, of January 28, which regulates the legal framework of the supports to be provided to the agents developing cultural activities considered as having relevant interest for the Region of the Azores.

https://dre.pt/application/conteudo/125902660

Ordinance no. 394/2019, of November 11: Regulates the legal framework of the assistance for the temporary cessation of certain fishing activities.

https://dre.pt/application/conteudo/126001981

Regional Legislative Decree no. 24/2019/A, of November 12: Approves the multiannual framework of the budgetary planning of the Azores Autonomous Region for the period of 2020 to 2023.

https://dre.pt/application/conteudo/126061441

Parliament Resolution no. 225/2019, of November 14: Approves the Multilateral Instrument (MLI) to prevent the erosion of the tax base and profit transfer.

https://dre.pt/application/conteudo/126132118

Regional Legislative Decree no. 25/2019/A, of November 15: Regulates the termination of the public limited company SAUDAÇOR, S. A., the company that managed the health resources and equipment of the Azores.

https://dre.pt/application/conteudo/126207403

Order no. 10551/2019 of October 1, of State Secretary for Tax Affairs, published on 18 November: Approves the amendments to the periodic income statement «Modelo 22», its annexes and instructions for completing.

https://dre.pt/application/conteudo/126257695

Decree-Law no. 167/2019, of November 21: Updates the minimum guaranteed monthly wage, for the year of 2020.

https://dre.pt/application/conteudo/126365738

Ordinance no. 397/2019, of November 21: Amends the Ordinance no. 278/2012 of September 14, amended by the Ordinance no. 222-A/2016 of August 12, which regulates the gradual implementation of the principle of onerosity by determining the terms on which the counterpart for services, organisations or other entities using public spaces is due.

https://dre.pt/application/conteudo/126365739

Ordinance no. 398/2019, of November 21: Establishes the requirements as well as the procedure for granting aid for the private storage of olive oil.

https://dre.pt/application/conteudo/126365740

Regional Legislative Decree no. 26/2019/A, of November 22: Approves the legal Framework of the Civil Protection System of the Autonomous Region of the Azores.

https://dre.pt/application/conteudo/126467884

Regional Legislative Decree no. 29/2019/A, of November 27: Establishes the legal licensing regime to which private service electrical installations in the Autonomous Region of the Azores are subject.

https://dre.pt/application/conteudo/126619697

Regional Legislative Decree no. 30/2019/A of November 28: Approves the “PRAC – Programa Regional para as Alterações Climáticas” a Regional Climate Change Programme for the Autonomous Region of the Azores.

https://dre.pt/application/conteudo/126669989

Decree-Law no. 169/2019 of November 29: Amends the regulation of the distribution, sale and application of plant protection products by transposing Directive (EU) no. 2019/782, of May 19, 2019.

https://dre.pt/application/conteudo/126731019

III. CASE-LAW

III.1. Court of Justice of the European Union

Judgement of the Justice Court of November 7, Case C68/18: Reference for a preliminary ruling. Taxation of energy products and electricity. Directive 2003/96/EC. Article 21(3). No chargeable event giving rise to taxation. Consumption of energy products on a site that produces such products. Article 2(3). Obligation to obtain a classification for energy products in order to determine the level of excise duty. Tax rate applicable to those products. Principle of proportionality.

Summary:

“Article 21(3) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity must be interpreted as precluding national provisions or national practices which provide for the taxation of energy products consumed in the combined heat and power plant of the establishment in which they were produced, provided that that consumption concerns the production of energy products by generating the thermal energy necessary for the technological process of producing those products. That interpretation does not affect the application, in principle, of Article 14(1)(a) of that directive to the proportion of energy products consumed for the purpose of producing electricity.

Article 2(3) of Directive 2003/96 and the principle of proportionality must be interpreted as precluding national provisions or national practices which, in the absence of a request made to the competent tax authorities for the purpose of classification in relation to excise duties for energy products whose level of taxation has not been determined by that directive, provide for the application of the excise duty rate laid down for gas oil and the maintenance of that rate, even though a classification decision was obtained subsequently in which those products were treated as heating oil.”

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0068

Judgement of the Justice Court of November 7, Case C-419/18: References for a preliminary ruling. Consumer protection. Directive 93/13/EEC. Article 3(1). Article 6(1). Article 7(1). Directive 2008/48/EC. Article 10(2). Credit agreements for consumers. Lawfulness of securing the debt arising under the agreement by means of a blank promissory note. Demand for payment of the debt owed under the promissory note. Scope of the court’s powers and obligations.

Summary:

Articles 1(1), 3(1), 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which, for the purpose of securing the payment of the debt arising under a consumer credit agreement concluded between a seller or supplier and a consumer, makes it possible to stipulate in that contract an obligation on the borrower to issue a blank promissory note, and which makes the lawfulness of the issuance of such a note subject to the prior conclusion of a promissory note agreement determining the detailed rules in accordance with which that note may be completed, provided that that stipulation and that agreement comply with Articles 3 and 5 of that directive and Article 10 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, a matter which is for the referring court to verify.

Articles 6(1) and 7(1) of Directive 93/13 and Article 10(2) of Directive 2008/48 must be interpreted as meaning that where, in circumstances such as those at issue in the main proceedings, a national court has serious doubts as to the merits of an application based on a promissory note intended to secure the debt arising under a consumer credit agreement and that note was initially left blank when issued by the maker and subsequently completed by the payee, that court must examine of its own motion whether the provisions agreed between the parties are unfair and, in that respect, may require the seller or supplier to produce the document recording those provisions so that that court is able to verify that the rights that consumers derive from those directives are observed.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0419

Judgement of the Justice Court of November 7, in joined Cases C349/18 to C351/18: References for a preliminary ruling. Rail transport. Passengers’ rights and obligations. Regulation (EC) No 1371/2007. Article 3(8). Transport contract. Concept. Passenger without a ticket at the time of boarding a train. Unfair terms in consumer contracts. Directive 93/13/EEC. Article 1(2) and Article 6(1). General conditions of carriage of a railway undertaking. Mandatory statutory or regulatory provisions. Penalty clause. Powers of the national court.

Summary:

Article 3(8) of Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations must be interpreted as meaning that a situation in which a passenger boards a freely accessible train for the purposes of travel without acquiring a ticket comes within the concept of a ‘transport contract’ for the purposes of that provision.

Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding, firstly, that a national court which establishes that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair moderate the amount of the penalty imposed on the consumer and, secondly, that a national court replace that term, in accordance with the principles of its contract law, with a supplementary provision of national law, except where the contract at issue cannot continue in existence in the event that the unfair term is deleted and where the cancelation of the contract in its entirety exposes consumers to particularly unfavourable consequences.”.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0349

III.2 Constitutional Court

Judgment of the Constitutional Court no. 667/2019 of November 13, Case no. 143/2016:

The object of the aforementioned appeal was the constitutional conformity of the rule contained in the point b) of 1st paragraph of the Article 12 of the VAT Code with the constitutional principles of equality and fundamental right to health, both set out in Articles 13 and 64 of Portuguese Constitution.

The Court considered that the Article 64 of Portuguese Constitution does not require any price fixing regarding private healthcare facilities. There is no legal basis interpretation in support of restriction regarding the waiver of VAT exemption. The competition is carried out by user’s free choice between the public (providing VAT exempt services) or private sector offer (which is not VAT exempt therefore more expensive).

In the light of foregoing considerations, the Constitutional Court decided that there is no such unreasonable distinction contained in Article 12, paragraph 1, point b) of VAT Code, between the public and private health facilities users, deciding that such VAT Code regulation is not unconstitutional.

http://www.tribunalconstitucional.pt/tc/acordaos/20190667.html

III.3. Courts of Justice

Judgement of the Court of Appeal of Lisbon of November 7, Case no. 726/16.7T8CSC.L1-6: Automobile guarantee fund. Reimbursement. Loss of the right to life.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/8e098579306855f0802584b200592b06?OpenDocument

Judgement of the Court of Appeal of Lisbon of November 7, Case no. 20562/16.0T8ALM.A.L1-6: Financial intermediary. Duty to inform. Risk. Contractual liability.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/625c8e10b13a56a5802584b2005bf125?OpenDocument

Judgement of the Court of Appeal of Lisbon of November 7, Case no. 119/18.1YHLSB.L1-8: Trademarks. Distinctive sign. Imitation. Confusion. Affinity.

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/68e4bfbe34899a5e802584b100399819?OpenDocument

Judgement of the Court of Appeal of Évora of November 7, Case no. 8677/18.4T8STB-A.E1: Enforcement order. Rent. Communication.

http://www.dgsi.pt/jtre.nsf/134973db04f39bf2802579bf005f080b/3dc133755b0596dc802584b200345679?OpenDocument

Judgement of the Court of Appeal of Évora of November 7, Case no. 352/16.0T8MMN-A.E1: General contractual clause. Duty to inform.

http://www.dgsi.pt/jtre.nsf/134973db04f39bf2802579bf005f080b/981938138b75cc50802584b20034567e?OpenDocument

Judgement of the Court of Appeal of Évora of November 7, Case no. 1206/16.6T8OLH-C.E1: Culpable insolvency. Requirements.

http://www.dgsi.pt/jtre.nsf/134973db04f39bf2802579bf005f080b/ea820e8f231e6e33802584b200345678?OpenDocument

III.4. Administrative and Tax Court

Judgement of the Administrative Central South Court of 14.11.2019 Case no. 2260/12.5BELRS: Municipal Tax on Real Estate Onerous Transactions (“IMT”) exemption. Legal requirements and tax annulment.

http://www.dgsi.pt/jtca.nsf/170589492546a7fb802575c3004c6d7d/406ffa7339ce53ca802584b2004e787e?OpenDocument

Judgement of the Administrative Central South Court of 14.11.2019, Case no. 10/17.9BCLSB: Transfer pricing. Grounds. Corporate Income tax (“IRC”).

http://www.dgsi.pt/jtca.nsf/170589492546a7fb802575c3004c6d7d/c6db79a4f69a1f6a802584b2004f5261?OpenDocument

IV. BRIEFS
IV.1. DOCTRINE
IV.1.1.  Monographs and Periodic Publications

Miguel Assis Raimundo, Direito dos Contratos Públicos, AAFDL, novembro 2019;

Benedita Menezes Queiroz, Tiago Fidalgo de Freitas e Miguel Mota Delgado, Casos e Materiais de Contencioso da União Europeia, AAFDL, novembro 2019;

Vasco Pereira da Silva, Miguel Assis Raimundo, Tiago Serrão, José Duarte Coimbra, David Pratas Brito e Rita Curro, “Casos Clínicos” de Processo Administrativo (Caderno Prático), AAFDL, novembro 2019;

Miguel Bettencourt da Camara, A Responsabilidade Civil dos Poderes Públicos entre o Direito Público e o Direito Privado, AAFDL, novembro 2019;

Gustavo Lopes Courinha, Estudos de Direito Internacional Fiscal, AAFDL, novembro 2019;

Marlene Teixeira de Carvalho, O Beneficiário Efetivo – Guia Legislativo, AAFDL, novembro 2019;

IV.1.2. Generic Guidelines & Cia

Circulate letter no. 30215 of 07.11.2019, of Deputy General Director, of VAT Management Area

Subject: VAT – golden coins list.

http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_30215_2019.pdf

Circulate letter no. 30216, of 12.11.2019, of Deputy General Director, of VAT Management Area

Subject: VAT – VAT code exemptions under 1st paragraph of Article 14, points d), e), f) and j). Exemption proof – 8th paragraph of Article 28 of VAT Code.

http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_30216_2019.pdf

Circulate letter no. 15735/2019, of 19.11.2019, of Deputy General Director of Customs Management Area

Subject: Destruction of merchandise violating the intellectual property rights (“DPI”).

http://info-aduaneiro.portaldasfinancas.gov.pt/pt/legislacao_aduaneira/oficios_circulados_doclib/Documents/Oficio_Circulado_15735_2019.pdf

Circulate letter no. 20214, of 26.11.2019, of Deputy General Director of Income Tax and International Relations

Subject: Amendments to “Modelo 10” income declaration.

http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_20214_2019.pdf

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

The Council of Ministers approved on 14 November 2019 the Decree-law that regulates the XXII Government organization and functioning. The legal framework goal is to achieve the suitable structure of collaborative Government as well as to meet the European Union Presidency challenges in 2021. The strategic challenges, such as the climate changing, demography, inequality and digital society, of creativity and innovation, are conferred to Government officials, with the function to ensure that all of government areas collaborate in the elaboration of the action programs, and in the prediction of the joint exercise of administrative powers (of direction, supervision and authority), which are shared by several Government members, according to their areas of intervention.

Also, it has assessed the level of implementation of the resolutions adopted under Resolution no. 139/2019, which approved a set of measures to prevent and combating domestic violence, with incidence on various governmental areas, namely internal administration, justice, education, social security and health.

At the same time was approved the Code of Conduct of the XXII Constitutional Government, establishing a set of rules aim to ensure that government activity is guided by principles of good administration, transparency, impartiality, integrity and interinstitutional respect. Through this resolution, the Government defines the conduct guidelines for the members of the Government, the members of their cabinets and the other senior officials of the Public Administration, thereby fulfilling the objective of valuing the exercise of public positions as a way of improving the quality of democracy and increasing citizens’ trust in public institutions.

In addition, approval was given to the Decree-Law amending the Public Contracts Code and Decree-Law regulating the State intervention in the definition and global monitoring of public-private partnerships, and to the Decree-Law that amends the law regulating the activities of plant protection products for professional use and adjuvants of plant protection products and defining the monitoring procedures of the use of plant protection products, transposing the Directive (EU) no. 2019/782. This aims to promote the reduction of the risks and effects of pesticide use on human health and on the environment, the use of integrated protection and alternative approaches or techniques, and also the reduction of dependence on pesticide use.

https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=309

https://www.portugal.gov.pt/pt/gc22/governo/comunicado-de-conselho-de-ministros?i=310

V. INDUSTRIAL PROPERTY

As of 11 November 2019, the Ecuador’s National Service of Intellectual Rights (SENADI) has made its design data available to the DesignView database, and more than 2.600 designs from SENADI were added. There are now 70 offices participating in DesignView. This accession is a result of the programme ‘IP Key Latin America’, managed by the European Commission and executed by the EUIPO.

https://inpi.justica.gov.pt/en-gb/INPI-News/Ecuador-joins-DesignView

The European Patent Office has launched the new, revised and improved version of the “Espacenet” search tool, which allows its users to perform patent searches, and access the world’s largest collection of patent documents for free, with more than 110 million documents from around the world.

https://inpi.justica.gov.pt/en-gb/INPI-News/The-European-Patent-Office-EPO-has-released-the-new-Espacenet

On November 26, the European Union (EU) deposited the instrument of accession to the Geneva Act, relating to the Lisbon Agreement, in the World Intellectual Property Organisation (WIPO). With the accession of the EU, the European Commission will be responsible for registering international applications for DO (Designations of Origin) and GI (Geographical Indications) with the International Bureau of WIPO. The European Commission will also be responsible for assessing the fulfilment of the requirements for granting protection to a DO or GI from third countries.

https://inpi.justica.gov.pt/Noticias-do-INPI/Uniao-Europeia-adere-ao-Ato-de-Genebra

 

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