Author: Francisco Medeiros

Decree-Law no. 59/2021, of July 14, was published, forcing companies to create lower-cost alternatives to phone numbers beginning with 707 or 808, which have higher rates. This applies to consumer contact phone lines provided by suppliers of goods or service providers, as well as public utilities. Making these phone lines available will be mandatory as of November. Fines for those who do not comply with the new rules will only apply from June 2022.

Any entity that provides telephone lines for consumer contact must clearly and visibly indicate, in its commercial messages, on the main page of its online website, on invoices, in written messages sent to the consumer and in written contracts entered with the consumer, the telephone number or numbers provided. These must be accompanied, also in a clear and visible manner, by updated information on the price of calls.

Information on numbers and the price of calls should first indicate toll-free lines and geographic or mobile lines, and then, if relevant, in ascending order of price, the number and price of calls to other lines. The price charged to the consumer for calls to the telephone lines specified by the supplier of goods or service provider at the time of contact within the scope of a legal consumer relationship may not exceed the basic rate.

The provider of basic public utilities is obliged to provide the consumer with a telephone helpline. This must be toll-free for the consumer or, alternatively, a telephone line to which corresponds a geographic or mobile numbering range.

The supplier of goods or services and the provider of public utilities who are obliged to provide a toll-free telephone line or a telephone line with a geographic or mobile numbering range are prohibited from charging the consumer upfront for anything other than the permitted amount, on condition that this amount is returned to the consumer at the end of the call.

Finally, all public entities that provide telephone lines with special numbers, with the prefixes 808 and 30, must establish an alternative to telephone numbers with the prefix two, no later than ninety days from November 1, 2021.

When a traffic accident occurs, it is important to record, at the scene of the accident, the identification details of the drivers, the vehicles involved, the insurance coverage (especially the policy number) and to identify the witnesses to the accident and their personal contacts.

If an agreement can be reached on how the accident occurred, drivers must fill out and sign an Official Accident Declaration (DAAA), where each driver is given a copy to give to their respective insurance company. If no agreement can be reached, each driver must fill out and sign their own DAAA form and give it to the other vehicle’s insurer. The official accident declaration can be filled out on paper or directly using the e-Segurnet app, which can be downloaded free of charge. Where possible, photographs of the damages and the accident site should be attached.

Within the scope of traffic accidents, the law includes several deadlines whose non-compliance may have consequences on the rights and duties between the injured parties and those civilly and criminally liable for the traffic accidents.

The accident must be reported to the insurer within 8 days from the date of the occurrence or from the date on which the insured became aware of it, under penalty of the insured being liable for damages. If they wish to file a criminal complaint, the injured party has a period of 6 months from the event and may file the corresponding civil suit within 3 years.

After becoming aware of an accident, the insurer has 2 working days to establish the first contact with the injured party and schedule the expert examinations. The insurer must then notify the policyholder or insured and the injured third party of its ruling on liability for the accident within a maximum of 30 working days from the last day of the deadline for first contact if there is only property damage (15 days, with a Official Accident Declaration) and 45 days from the date of the claim if there is personal injuries. These periods may be extended or suspended if the accident has occurred in exceptional weather conditions, if there has been a large number of accidents at the same time, and if fraud is suspected.

If the insurer assumes liability for damages arising from the accident, it must communicate its decision in writing, along with a reasonable settlement offer. If there are personal injuries, and there is no medical discharge report, or if the damage is not quantified, the settlement offer is provisional. If they decide not to assume liability, they must submit a written, reasoned justification for the refusal. Within 20 days of the claim, the insurer must inform the injured person whether it intends to carry out an examination to evaluate the personal injuries; or 60 days after the date of the accident if the injured person has not submitted a claim. The insurer must make the claimant’s medical file available within 10 days from the date the examination is received. The insurer has eight working days from the date of assumption of responsibility to carry out the payment.

According to article 940 of the Civil Code, donation is the contract under which a person, by free will and at the expense of their own assets, freely gives a thing or right, or assumes an obligation, for the benefit of another contracting party.

Unlike the sale to children or grandchildren, where parents and grandparents cannot sell to children or grandchildren if the other children or grandchildren do not accept the sale, the law, in the case of donation, does not provide for the need to obtain the consent of the descendants. Accordingly, ownership of the donated property is the consequence of this free disposal contract, as of the date it is concluded.

However, this transfer does not prevent the donee(s)-descendant(s) of the donor from having to return to the donor’s estate, for equitable distribution, the assets or values received as a donation, so that they may be included in the ascendant’s succession – this is called collation, an element of succession law based on the social significance attributed to donations made during the donor’s lifetime to presumptive legitimate heirs of the donor, considering them as nothing more than anticipations of the inheritance.

In other words, the law presumes that any donation made by parents during their lifetime to only one or some of their children is not intended to affect or harm the other children, harming them in relation to the beneficiaries of the donation. But that there was only an intention to help these children in a difficult moment of their lives, giving them a kind of advance payment of what they would inherit in the future, without affecting the duty of equality in this future sharing.

This conference (or duty of restitution) happens by imputing the donation value to the hereditary share (this value is the one the donated goods have at the date of the opening of succession), which is the rule; or by restituting the donated goods themselves, if there is an agreement among all heirs, which may lead to the reduction of the donation due to inofficiousness.

This will only be invalid if the act of donation expressly states that the donation was made according to the available share, i.e., based on the portion that can be freely disposed of. According to the available share means that the parents have exempted these assets from collation, intending to benefit a certain legitimate heir, and they are attributed to the available share of the author of the succession, without affecting its reduction due to inofficiousness.

In life or by will, parents can dispose of their own assets, if they do not affect the legitimate share, i.e., the share of assets that the administrator of the estate cannot dispose of, under penalty of such disposition being considered inofficious.

One of the private law restrictions on the right of property has to do with the planting of trees and bushes, aiming to prevent that the planting of trees and bushes cause harm to the owners of the neighboring buildings.

Article 1366, no. 1 of the Civil Code, which allows the planting of trees not excluded by no. 2 – eucalyptus, acacia, among others – up to the dividing line of the buildings, nevertheless gives the owner of the neighboring building the right to uproot and cut the roots that enter their land and the trunk or branches on it, if the owner of the trees, having been judicially or extrajudicially summoned to take these measures, does not do so within three days.

Accordingly, the owner of the invaded building cannot exercise this right without previously notifying the owner of the trees, since article 1366, no. 1 of the Civil Code only allows its exercise after the latter has previously requested the owner of the trees to take such action, and the latter has not done so within three days.

The power conferred to the owner of the neighboring building legitimizes the recourse to the self-protection right of their property, after a request has been made to the owner of the trees and the latter has not fulfilled his duty to prevent them from causing damage to the neighboring building.

But there are cases in which the owner of the building where the roots are intruding is unable to cut them down, either because the trees are next to walls or to urban buildings, in which the infiltration of the roots can cause damage, and they cannot comply with article 1366, no. 1 of the Civil Code. In these situations, the courts have admitted that the injured owner may compel the owner of the trees to perform the steps necessary to prevent such damage, requiring the cutting of the roots or trees if this is necessary to safeguard their interests.

The owner of a tree or shrub adjoining or bordering another person’s building may require the owner of the building to allow them to pick the fruit that cannot be picked by the former; but they are liable for any damage the picking may cause.

Regarding alimony between former spouses, after divorce or legal separation of people and goods, the general rule dictates that each spouse must provide for their own livelihood after divorce (article 2016, no. 1 of the Civil Code).

Together with the spouse, the ex-spouse is part of the first class of obligors. Therefore, only in their absence or if it is impossible for them to provide alimony will the persons of the subsequent class be called (therefore, the descendants), and so on (cf. articles 2009 and 2013, no. 2 of the Civil Code).

But any of them may request alimony from the other, provided it is shown that they are in a state of need and that the person giving the alimony is able to do so (article 2004 of the Civil Code).

This alimony obligation is exceptional and temporary in nature, as its purpose is to help the ex-spouse who needs alimony to meet basic needs, giving them a minimum of conditions that allow them, in the initial stages after the divorce, to readjust their lives. This obligation is due during the period necessary for the spouse to adapt to their new life, serving as support for the recovery of economic independence.

The establishment of the alimony amount depends on article 2016-A of the Civil Code, which lists several circumstances to define the alimony obligation, including the length of the marriage, the collaboration that the former spouse in need of alimony provided to the couple’s economy, their state of health, age, professional qualifications and employment prospects, the economic capacity according to their income, the reorganization of family life, among others.

The condition of being divorced, where the former spouse is the first to be appealed to for alimony, does not entail a right to alimony that is more stringent than that of other people who have never been married. In other words, article 2016-A of the Civil Code does not restrict the right of alimony to divorced people, but only presents criteria for the alimony amount, to be fixed upon verification of the assumptions of the right to alimony.

Regarding the means, alimony shall be given in monthly cash payments, unless there is an agreement or legal provision to the contrary, or if there are reasons that justify exceptional measures; and if the person obliged to provide alimony shows that they cannot provide it as a pension, but only in their home and companionship, then it may be decreed (article 2005 of the Civil Code).

Alimony becomes due from the time the action is filed, or when it is fixed by the court or by agreement, from the time the debtor is in arrears (article 2006 of the Civil Code).

The recent Law no. 18/2021, of April 8, which came into effect the day after publication, amended the Labor Code, in particular the legal regime applicable to the transfer of a company or establishment contemplated in the Labor Code, which will now apply to situations of transfer by award of service provision through public tender, direct award or other means. The new rules also apply to public tenders or other means of selection, in the public and private sectors, during 2021, including those for which the award has been concluded.

Employees may exercise their right to oppose the transfer of the employer’s position in their employment contract in the event of the transfer, assignment or reversion of an enterprise or establishment, or of part of an enterprise or establishment that constitutes an economic unit, when this may cause them grave harm, in particular the purchaser’s lack of solvency or difficult financial circumstances; or if the work organization policy is not trustworthy, preventing the transfer of the employer’s position in their employment contract, while maintaining the link with the transferor.

The rules on the effects of the transfer of a company or establishment are applicable to all situations of transfer of a company or establishment by award of a contract for services by public tender or other means of selection, in the public and private sector, especially the award of surveillance, food, cleaning or transport services, coming into force at the time of the award.

In the transfer of ownership of a company or establishment, the position of the employer in the employment contracts of the relevant employees is transferred to the acquirer, as well as the liability for the payment of any fines imposed for labor infractions.

After the transfer, the employees transferred to the acquirer retain all contractual and acquired rights, specifically remuneration, seniority, professional status and functional content and acquired social benefits. The transferor is jointly and severally liable for the employee’s claims arising from the employment contract, its breach or termination, as well as the corresponding social charges, accrued up to the date of transfer, assignment or reversion, during the two years following this date.

Regional Regulatory Decree no. 4/2021/A was published on April 26, regulating the allocation of financial incentives for the consumption of new electric vehicles, as well as the allocation of financial incentives for the acquisition of charging points for electric vehicles. The amounts and conditions for the attribution of financial incentives to be given to natural and legal persons of private law with tax residence in the Autonomous Region of the Azores were established.

Eligible are new electric vehicles introduced in the regional market since January 1, 2021, through the acquisition or leasing contract with a 60-month minimum duration.

For this incentive are considered new passenger and goods light motor vehicles, exclusively electric, categories M1 and N1; two-wheeled motorcycles of category L3 and/or mopeds of category L1e-B, exclusively electric, subject to registration; three-wheeled tricycles of category L5e, or quadricycles, light or heavy, passenger or goods, of categories L6e-BP, L6e-BU, L7e-CP and L7e-CU, exclusively electric, subject to registration; powered cycles, bicycles with electric assistance, powered by the driver’s effort, through pedals or similar devices, intended for use in cities; and charging points for electric vehicles.

The application period will run until 90 days after the introduction of the new electric vehicle or the purchase of the charging point. The deadline is counted from the date of the last invoice, in the case of acquisition, or the date of contract signature in the case of leasing contracts.

The incentive corresponds to the assignment of a financial support, and surcharges may be assigned, particularly to beneficiaries who enjoy a time-variant electricity rate (bi-hourly, tri-hourly, or tetra-hourly rate), light vehicles that present proof of the scrapping of a vehicle, and those who have a physical disability with a degree of disability equal to or greater than 60%, among others.

The beneficiary is allowed to accumulate incentives with others of a similar nature indicated in national legislation.

The subsidized vehicles and recharging points must be kept by the beneficiary for at least five years.

On May 19, Decree-Law no. 36/2021 was published, amending Decree-Law no. 176/2006, of August 30, (“Medicament Statute”), by introducing a ban on the advertising of price discounts on prescription drugs.

As of July 1, adding to the existing legislation on the prohibition of advertising of these medications, it is established the prohibition of advertising of price discounts for medications whose advertising was already forbidden. Advertising is prohibited in any format, regardless of the medium used, whether generic advertising, or specific advertising for price discounts for these drugs, considering. Advertising for medications is any form of information, prospecting or incentive that aims or results in promoting the prescription, supply, sale, acquisition or consumption, particularly among the general public, wholesale distributors and health professionals.

According to the legal framework for pharmacy shops, pharmacies are still required to visibly disclose relevant information in their relationship with users, which includes discounts on medication prices. But they will not be allowed to advertise to the general public.

The prohibition to advertise some medicines to the general public is already in effect; for example, medicines subject to medical prescription and medicines subsidized by the National Health Service. But advertising for price discounts on these drugs was not yet regulated.

The justification for the introduction of the ban is based on two main arguments: on the one hand, public health protection; on the other, the consequences that discounts may have on equal access to medication by the population. Regarding the protection of public health, discounts on medicines may be a form of incentive to improper use, instead of a rational, safe and effective use of the medicine, with the potential negative effects that the unreasonable use of medicines can have on patients’ health. As far as access is concerned, discounts on these medications are likely to promote unequal access by different populations, depending on whether they live in more populated areas, where there is greater competition between pharmacies; or in less populated areas, where there is less competition, also having a negative impact on the economic situation of smaller pharmacies or pharmacies located in areas with lower population density.

Whenever riding on public roads, cyclists must carry a personal identification document, such as a citizen card or passport, otherwise they will incur a fine ranging from €.60.00 to €.300.00, which may be reduced by half if the cyclist presents the document to the authorities within a maximum of eight days.

This document may be replaced by a mobile app that allows the verification of the data contained in such documents, or by a digital driving license, if applicable. Since January 1 this year, a mobile app provided by the Portuguese Agency for Administrative Modernization (https://id.gov.pt/) has been available for Android and iOS. Presenting the documents through this app has the same legal effect as the citizen card and the driver’s license.

Bicycles do not have registration plates or registration, nor are they required to have civil liability insurance, although some insurance companies offer insurance that includes, in a single package, coverage for personal accidents, civil liability, travel assistance and transportation.

On the other hand, the cyclist does not need to have a driver’s license. But it is recommended that they know the Highway Code, namely the rules for the circulation of bicycles and the main traffic signs.

Rules such as riding in the rightmost lane and yielding the right of way, as with any other vehicle (especially at intersections), are rules that cyclists must follow. For example, if a cyclist fails to respect forbidden traffic signs or rides in the wrong direction, this constitutes a serious offence, punishable by a fine and a driving ban from one month to one year, and the loss of two points on the driver’s license. Cyclists may only ride on the road, on the side of the road, on cycle tracks (if any), or on the lanes reserved for public transport, depending on municipal regulations. Minors up to 10 years old are allowed to ride on sidewalks, if they do not endanger or disturb pedestrians.

In divorce cases, and when one spouse keeps using the dwelling which they do not own, who should pay IMI?

A taxpayer recently presented to the Tax Authority this case: she got divorced and the use of the dwelling was assigned to her ex-husband, so she asked for information about who is responsible for paying IMI, since she is unable to use the property and must rent another dwelling.

The taxpayer understood that, according to the Civil Code, the user is responsible for the payment of taxes and annual charges, as usufructuary, and that the holder of the right of habitation is not fulfilling the obligation to pay IMI, despite occupying the entire building and taking full advantage of it.

The AT, through the Binding Information of 29.04.2021, pronounced itself on this claim, on the Municipal Property Tax (IMI) to be applicable to the holder of the right of use and habitation, considering that the taxpayer is the one who must pay IMI.

The IMI Code states that IMI taxpayers are the owner, the usufructuary or the superficiaries. In other words, the CIMI does not establish that the user or the user dweller can be considered IMI taxpayers.

On the other hand, if there is no usufruct, the person whose name appears in the land register must pay IMI. And the user status has more limitations than the usufruct status because the user cannot, for example, assign the right to use the property to a third party, nor give it a different use, which is possible in the case of usufructuaries. If they did, the “user dweller” would lose their rights to the property, as they would no longer need it to live in.

For the AT, the differences in content between the legal regimes of usufruct and the right of use and dwelling led the legislator not to constitute the user or dwelling user as an IMI taxpayer.

In other words, if there is no usufruct on the part of the occupant, it is the owner of the property – the person whose name is on the land register – who must pay IMI.