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Following the rejection of the 2022 State Budget proposal and the election of the new Parliament, a new 2022 State Budget proposal (Draft Budget) was presented last week.
We are reviewing the main tax changes of the proposal (including new ones) in this newsletter.

PERSONAL INCOME TAX (PIT)

Regarding Personal Income Tax (PIT), these are the main changes:

• Return Programme. The return programme, which exempts 50% of the employment income and professional income obtained by taxpayers who became Portuguese residents between 2019 and 2020, will be extended to taxpayers that become residents in 2021, 2022 and 2023, provided that they have not been residents in the three previous years.
• Youngsters partial PIT exemption. A partial PIT exemption will apply to employment income and professional income obtained by 18- to 26-year-old taxpayers, who are not dependents, after the conclusion of an education level equal to or higher than level 4 (in the case of level 8, the exemption may extend until the age of 28). The exemption will apply in the first 5 years after the conclusion of the required level of education and will cover: (i) 30% of the income in the first two years, with a limit of 7.5 times the value of the Social Support Index; (ii) 20% of the income in the following two years, with a limit of 5 times the value of the Social Support Index; and (iii)10% of the income in the last year, with a limit of 2.5 times the value of the Social Support Index.
• Mandatory aggregation of capital gains in the annual tax returns.* The positive balance between capital gains and capital losses arising from the disposal of shares and other securities held for less than one year will cease to be subject to flat rate of 28% and will have to be included in the annual tax returns if the taxpayer has a total taxable income equal to or greater than €75,009. The negative balance can be deducted in the following 5 years. This amendment will enter into force on 1 January 2023.
• Change of PIT brackets. The current seven PIT brackets will be increased to nine, with the introduction of the following new brackets: (i) a new third bracket (between €10,736 and €15,216) subject to a rate of 26.5% (instead of 28%); and (ii) a new seventh bracket (between €36,757 and €48,033) subject to a rate of 43.5% (instead of 45%).

In parallel, the maximum limit of the eight bracket will be reduced from €80,882 to €75,009 and, as such, any income above this amount will be subject to the higher rate of 48%.

CORPORATE INCOME TAX (CIT)

On the Corporate Income Tax (CIT) side, these are the most relevant changes:

• Non-deductible expenses. Invoices issued by taxpayers who are not registered with the tax authorities will not be deductible for CIT purposes.
• Tax exemption on IP income. The PIT exemption on income derived from the assignment (or temporary use) of industrial property rights subject to registration will be increased from 50% to 85%.
• Special advance payment. The Special Advance Payment (the so-called “Pagamento Especial por Conta” or “PEC”) will be eliminated. The rules on the deduction and refund of the PECs paid in the previous years will remain in force.
• Autonomous taxation relive. The 10% increase of the autonomous taxation will not apply to micro, small and medium-sized companies in 2022 if they (i) have obtained taxable profit in one of the three previous tax periods and (ii) have filed the annual tax returns in the two previous tax periods.

VALUE ADDED TAX (VAT)

The Budget proposal also includes a few changes on the Value Added Tax (VAT):

• Reduced VAT rate*. The following products are subject to the reduced VAT from 1 July 2022: (i) cheese-like products, without milk and dairy products, produced from nuts, cereals, cereal-based preparations, fruits, vegetables or legumes; (ii) the supply of repair services for domestic appliances; and (iii) delivery and installation of solar thermal and photovoltaic panels (until 30 June 2025).
• Filing of VAT returns. The deadline for filing the VAT returns will be the 20th day of the second month following the relevant month or quarter (depending on whether the taxpayer is subject to the monthly or quarterly VAT filing regime).
• Payment of VAT. The deadline for the payment of the VAT will be the 25th day of the second month following the relevant month or quarter (depending on whether the taxpayer is subject to the monthly or quarterly VAT filing regime).
• Filing of the IES / DA and submission of the SAF-T file. The implementation of the new rules set out in Ordinance No. 31/2019 for the submission of the SAF-T (PT) file on accounting was postponed to the years 2023 and following, with first delivery scheduled to the year 2024.
• Suspension of ATCUD in 2022. The affixing of the unique document code (ATCUD) on invoices and other documents relevant for tax purposes was postponed to 2023.

TAX ON OIL AND ENERGY PRODUCTS (TOEP)

• Electricity produced for self-consumption. A tax exemption will apply to electricity produced for self-consumption from renewable energy sources up to a limit of 1 MW of the installed capacity.
• Additional to the TOEP rates. The additional TOEP rate of 0.0035 euros/l for colored and marked diesel up to a limit of €30,000,000 per year.
• Products used in the production of electricity, electricity and heat or city-gas. Some products will be taxed at 100% of the TOEP rate and at 100% of the CO2 rate while others will be subject to lower rates (e.g. cogeneration processes).

TAXES ON DRINKS AND TOBACO

The Government proposes an increase on taxes on alcoholic drinks and non-alcoholic drinks. Tabaco tax rates will also increase.

VEHICLES TAX

The Vehicles Tax rates applicable to the acquisition of cars, motorbikes, tricycles and quadricycles will be adjusted upwards taking into account their cylinder capacity and environmental component.

SINGLE CIRCULATION TAX

The Draft Budget includes a general increase of around 1% in the Single Circulation Tax rates applicable to all vehicles and keeps in force the additional tax for diesel vehicles in categories A and B.

REAL ESTATE TRANSFER TAX (RETT)

In what concerns Real Estate Transfer Tax (RETT), the main highlights are:

• Extension of RETT. RETT will apply to the following transactions: (i) transfer of real estate by the shareholders to the company for the payment of accessory capital contributions; (ii) award of real estate to the company’s shareholders upon a share capital reduction, the repayment of accessory capital contributions or the performance of other company’s obligations towards its shareholders; and (iii) award of real estate to participants in closed-end real estate investment funds in connection with the redemption of the investment units or the reduction of the funds’ capital.
• Amendment to the tax brackets. The RETT brackets applicable to the acquisition of urban buildings or units of urban buildings allocated to housing will be updated.
• Transfer of parts of a building. Upon the transfer of parts of a building, a surface/usufruct right or the land separated from the building RETT will be charged at a rate corresponding to the overall value of the building, considering the part or right transferred.
• Incentives to urban rehabilitation. The RETT exemption on the first transfer of buildings or units subject to urban rehabilitation will expire if: (i) the property is used for a purpose other than primary residence / lease for primary residence within six years from the date of transfer; or (ii) the property is not used as primary residence within six months from the date of transfer; or (iii) a lease contract is not entered within one year from the date of transfer.

REAL ESTATE TAX (RET)

The Draft Budget does not include material changes to the Real Estate Tax, save for the following:

• Urban buildings rented prior to the Urban Rental Regime. The communication of rents due under rental contracts entered before the Urban Rental Regime must be made between 1 January and 15 February of the following year according to the official models and procedures.
• RET exemption. The €153,300 household income threshold applicable to the RET exemption on urban buildings or units built, improved or acquired for residential purposes will be assessed based on the total household gross income instead of its taxable income.

STAMP DUTY

According to the Draft Budget the 50% increase of the stamp duty rates applicable to consumer credit contracts will remain in force in 2022.

SPECIAL CONTRIBUTIONS

According to Law 99/2021, of 31 December, in 2022 the following special contributions will remain in force:

• Banking Sector Contribution;
• Banking Sector Additional Solidarity Levy;
• Audio-Visual Sector Contribution;
• Pharmaceutical Industry Contribution;
• Energy Sector Extraordinary Contribution (CESE);
• Extraordinary contribution on the suppliers of medical devices industry of the National Health Service; and
• Contribution on single-use plastic or aluminum packaging in finished meals.

In addition to these contributions, the 202 State Budget proposal foresees the creation of a special contribution for the conservation of forest resources, with a deadline of 90 days for regulation by decree-law.

TAX BENEFITS

The Draft Budget proposes the following amendments to the tax benefits:

• Recovery Tax Incentive. A new Recovery Tax Incentive applicable to CIT taxpayers will be created. The incentive will consist of a CIT deduction in 2022 equal to 70% of the investment expenses (up to an accumulated amount of € 5,000,000) which are made in the first 6 months of the 2022 tax period, corresponding to: (i) 10% of the eligible expenses (e.g., tangible fixed assets (with some exceptions) acquired as new and that have entered into operation by the end of the 2022 period or intangibles subject to depreciation), up to the amount corresponding to the simple arithmetic average of the eligible investment expenses of the three previous tax periods; and (ii) 25% of the eligible expenses, in the part exceeding the above-mentioned limit.

To benefit from this incentive, among other conditions, the taxpayer may not: (i) terminate employment contracts during three years from the beginning of the tax period in which the eligible investment expenditure is incurred, either through a collective dismissal or a job extinction procedure; and (ii) distribute dividends during three years from the beginning of the taxation period in which the eligible investment expenses are incurred.

• Support for the implementation of SAF-T (PT) and ATCUD. For micro, small and medium-sized enterprises, the extraordinary support corresponding to 120% of the respective expenses accounted in the 2022 tax period will remain in force.
• VAT on donations. The exemption from VAT of transfers of goods and services provided free of charge is now limited to 25% (as a whole) of the amount of the donation received.
• Amendments to the Investment Tax Code*. The Investment Tax Code is amended, with a view to: (i) the extension of contractual tax benefits to productive investment until 31 December 2027; and (ii) the update of the caps applicable to the contractual tax benefits to productive investment a in accordance with the national regional state aid map for the period from 1 January 2022 to 31 December 2027, approved by the European Commission on 8 February 2022.

LEGISLATIVE AUTHORISATIONS

In addition to the above proposed changes, the State Budget contemplates the following legislative authorisations for the Government to approve the following amendments:

• Inland Support Programme. The Government will create, within the scope of the Inland Suppport Programme, a set of tax benefits for the creation of jobs in inland territories, including a deduction of 20% of the expenses incurred with the creation of jobs that exceed the value of the statutory minimum wage.
• Start-up support. The Government will regulate the concept of "start-ups" for the purposes of granting financial or fiscal support, with a view to promoting the national entrepreneurial ecosystem and defining specific investment policies.
• Environmental deductions*. Deduction to PIT, up to a limit of €500 per household, of part of the VAT incurred on expenses incurred with energy efficiency improvements, such as replacing inefficient windows with efficient ones, applying or replacing thermal insulation in roofs, walls or floors, ambient heating and/or cooling systems, among others.

* New changes/adjustments introduced by the Draft Budget.

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Last Friday, the Portuguese Government approved new emergency measures to contain the increase in energy prices resulting from the war in Ukraine:

• The reduction of Oil Products Tax at the rate of VAT reduction, so 13%;
• Mechanisms to limit the impact of the gas price increase on the cost of electricity, by limiting the unexpected profits of electricity companies - which can cause considerable uncertainty and a decrease in investment in the energy sector since their profits are limited; and
• Suspension of the carbon tax increase until June, representing 5 cents less, per litre, and its quarterly revaluation until the end of the year, without full reinstatement.

To accelerate the installation of renewable energy production projects, the Portuguese Government has decided to:

• Reduce licensing deadlines, under terms to be regulated;
• Allow the injection in the Electrical Public System (Rede Elétrica de Serviço Público – “RESP”) of all production from existing wind power generating centers, without administrative limitations and applicable immediately; and
• Exemption of the issuing of an operating license or operating certificate for renewable energy generating centers, storage facilities, and production units for self-consumption whenever the grid operator confirms the existence of conditions for connection to RESP.

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All projects owned by public or private entities related to renewable gases production, incorporating the development of new technologies, may apply for the Portuguese Recovery and Resilience Plan’s hydrogen incentive program, approved by Order 98-A/2022, of 18 February, which shall apply retroactively to all 41 applications registered submitted to this date.

Future notices of invitation to tender shall comply with the rules set out in Regulation (EU) 2021/241 of the European Parliament and the Council of 12 February 2021. They will be published at the website www.fundoambiental.pt.

The Portuguese Environmental Fund is the responsible authority for conducting the whole process of analysing the applications and notifying the participants within 60 working days of its acceptance or non-acceptance decision.

To benefit from these incentives, companies must:

• Be legally established;
• Have their tax and social contributions obligations in order;
• Be able to develop activities in Portugal;
• Declare not to have any unpaid salaries;
• Have the technical, physical, and financial resources to develop their activities; and
• Have a financially healthy environment.

Eligible expenses include all investment costs that are demonstrably related and strictly necessary to the production of renewable gases. Consequently, the eligible expenses will correspond to the difference between the investment costs to produce renewable gases foreseen in the application and the investment in a conventional plant for the production of hydrogen of identical production capacity. Applicants may also include accessory investments with storage, transportation, and distribution of renewable gases.

Expenses such as consumption and current maintenance costs, property purchases, electricity transportation infrastructures investment; interest and other financing charges, and publicity are not eligible.

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Law 99-A/2021 approved several amendments to the Portuguese Securities Code that entered into force on January 30, 2022, of which we highlight the following:

Securities

Companies are entitled to issue multiple voting shares, with a cap of five votes per share.
Companies may also issue debt securities and increase their nominal value provided that the terms and conditions of the securities so allows it.

Issuers

All disclosure rules applicable to listed companies (e.g., annual reports and accounts, corporate governance report, payments made to public administrations, semi-annual information, insider information, managers' transactions, transactions with related parties and other information by issuers of shares and other securities) are now included in the Securities Code and some reporting duties were eliminated.

Qualifying holdings

The minimum threshold for disclosing qualifying holdings was increased from 2% to 5%, in line with other EU countries’ securities regulations.

The rules on the attribution of voting rights were simplified.

Exercise of voting rights

A 21-days prior notice for the calling of the meetings was imposed, with a shorter period of not less than 10 days being permitted in the case of credit institutions and financial companies.

Shareholders who intend to participate in a General Meeting must deliver a single statement to the financial intermediary instead of the two statements previously required (to the Chair of the General Meeting and to the financial intermediary).

Beneficial owners of securities will be entitled to directly exercise the shareholders’ rights even if they are not the direct holders of the securities, provided they present a “certificate of beneficial owner” (certificado de legitimação).

Financial intermediaries, whether based in Portugal or not, who hold shares in their own name acting on behalf of others, and other financial intermediaries in the intermediation chain, must allow the investors on whose behalf the shares are held to exercise the rights linked to the shares.

Institutional investors (e.g., insurance companies and pension funds), asset managers and so-called "voting advisors" are subject to additional transparency and disclosure rules.

Public offers

Public offers are now defined as offers of securities that require the prior disclosure of a prospectus or a document required under EU law.

The engagement of a financial intermediary to provide assistance and placement services in a public offer is no longer mandatory.

Offerors are allowed to revise the terms and conditions of an offer up to two days prior to its term subject to the authorization of the Securities Market Authority (Comissão do Mercado de Valores Mobiliários, “CMVM”).

The threshold for the publication of a prospectus was increased from €5 million to €8 million.

Prospectus

The liability for the content of a prospectus is extended to the guarantor, if any, and the mandatory liability of the financial intermediary that assists the offeror no longer applies, unless and to the extent the financial intermediary accepts to be named as such in the prospectus.

Prospectuses for offers in Portugal may be presented in English, unless CMVM opposes; when written in another language, CMVM may require the summary of the prospectus to be translated to Portuguese.

Takeovers

The acquisition of securities by inheritance will not trigger takeover rules.

The double requirement for the exercise of the right to compulsory acquisition (i.e., 90% of the total voting rights and 90% of the voting rights covered by the takeover bid) was revoked, being sufficient that the takeover reaches 90% of the total voting rights.

The takeover rules no longer apply to debt exchange offers, being only applicable to companies with shares admitted to trading on a regulated market in Portugal.

Administrative authorizations related with takeovers must be obtained within 6 months.

The competing offer rules were amended and now allow competing offers with less favorable conditions in relation to a previously announced offer.

Delisting and other amendments

Voluntary delisting is admissible when the delisting is approved in a general meeting of the company by a majority of not less than 90%, being the company obliged to acquire, by itself or by a third party, the shares of the shareholders that voted against it.

If the issuer enters in liquidation or insolvency, the securities admitted to trading must be registered with the issuer or a financial intermediary.

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Due to an increased use of digital services and platforms during the Covid-19 pandemic, Law 17/2022, of 26 April, the Portuguese Postal Services’ Law, is now amended by Decree-Law 22-A/2022, of 7 February.

ANACOM becomes responsible for supervising the universal postal service supply as well as the activities included in concession contracts relating to the designation of one or more postal service providers to cover different parts of the national territory.

ANACOM must also propose to the Portuguese Government for approval the SLA associated to the delivery of universal postal service for a minimum period of three years. Those SLA include delivery deadlines, regularity, and trustworthiness of services.

Universal postal service providers must comply with two new obligations, as they must:

• Have a measurement system for the service quality that complies with the standards applicable to the universal postal service, including intra-Community services; and
• Measure the quality of services, at least once a year, through an independent external entity, to which they must provide all the information necessary for the evaluation.

There are new rules regarding price determination of postal services that are part of the universal postal service offer. According to those rules, prices must take into consideration:

• The sustainability and financial viability of the respective provision;
• The traffic variation;
• The quality of the service provided; and
• The incentive to efficient universal postal service delivery.

These prices must be established for 3 years, under agreement between the universal postal service providers, ANACOM and the Consumers Commission (Direção Geral do Consumidor). This agreement must be notified to the Government.

It is also worth mentioning that recently CTT (Correios de Portugal) and the Government signed a new concession contract that will be the basis for the universal postal service, which will come into force after being approved by the Portuguese Court of Auditors until 31 December 2028.

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The new framework applicable to the National Electrical System (“SEN”) finally came into force, brought by Decree-Law 15/2022, of 14 January (the “New SEN Framework Law” ). The main novelties are the following:

Electricity generation and storage

• Instead of an ordinary and a special regime, generation, self-consumption, and storage will be covered by a single framework of prior control, which could be either a prior notification, prior registration, operating certificate, or production and operating license.
• The feed-in tariff scheme is eliminated, and electricity generation and storage activities are now subject to prices freely established in the market, with two exceptions: (i) feed-in tariffs already granted will keep going until the end of the respective term; (ii) renewable production can benefit from specific traffic granted in new capacity auctions by the Portuguese Government.

Grid capacity titles and production licenses

• The New SEN Framework Law sets a new timetable: (i) applications for production licenses from the National Department of Energy and Geology (Direção Geral de Energia e Geologia -“DGEG”), must be submitted until a year after the issue of the grid capacity title when an environmental impact assessment is required; if not, within 6 months; (ii) the production license must be issued until a year after the application submission; (iii) the operating license must be issued within 1 year after the date of the production license, with the possibility of extension.
• Obtaining a grid injection capacity title is now subject to the payment of a EUR 1,500/MVA compensation to SEN.
• The limits on transferability of production licenses and capacity titles are narrowed: they can be transferred before the production license is issued through a 50% increase of the bond.
• Ongoing grid capacity titles requests, submitted to DGEG under the scheme of agreement with the grid operators, that have already obtained a final classification in the terms of reference’s lists (published at DGEG website) shall remain in place and will be governed by the rules of the New SEN Framework Law. Those not included in the lists are expired.

Hybridization

• There is a new framework for hybridization and hybridized units, defined as the new generation units using different primary renewable energy sources to an existing power plant or self-consumption unit (“UPAC”), without changing the injection capacity of the pre-existing power plant or UPAC.
• Hybridization, like over-equipment and re-equipment, is exempt from grid capacity title allocation despite being subject to the prior control scheme.
• It will be possible for a legal entity other than the owner to hybridize a generating facility or a UPAC.

Storage

• When electricity production includes storage, the prior control for production comprises the storage activity.
• Autonomous electricity storage is subject to a production and operation license (i) when the installed capacity is above 1 MW or (ii) when an environmental impact assessment or environmental impact assessment procedure is required. When the installed capacity is equal to or less than 1 MW, the autonomous storage of electricity is subject to prior registration and operating certificate.

Decentralized production

• The maximum distances between UPAC and User Facility (“IU”) allowed for self-consumption production range now from 2km to 10 km.
• Consumer installations of Electro-Intensive Customers are not subject to any maximum distance requirements.
• No municipal construction permits will be required for the installation of solar photovoltaic panels on (i) pre-existing-built structures not defined as buildings, (ii) installed on delimited areas of the ground, such as commercial complexes, large commercial surfaces, industrial parks, industrial plots, logistics platforms, camping parks, and parking lots.
• Renewable Energy Communities (CER) can share energy through dynamic management systems but also trade energy among their members.
• UPAC may be owned and developed by CER or by third parties if at CER’s service.
• The New SEN Framework Law establishes rules for Citizens Communities for Energy.

New Market Agents

• The awarding of (i) Last Resort Supplier, (ii) Last Resort Aggregator, (iii) Guarantees of Origin Issuing Authority, and (iv) Logistics Operator for Switching Suppliers and Aggregators licenses are subject to a public tender procedure.
• The same applies to the concession for the new Integrated Operator of the High Voltage, Medium Voltage, and Low Voltage distribution networks.

Intensive consumers

• The intensive electricity consumers will benefit from a new Electro-Intensive Customer Statute established by the New SEN Framework Law.
• This new statute will include support measures, such as (i) reduction of electricity consumption charges or (ii) risk coverage mechanisms in the purchase of electricity from renewable energy sources through long-term agreements.

Technological Free Zones

• The New SEN Framework Law created three Technological Free Zones (“ZLT”) for renewable energies: (i) an offshore zone for the generation of electricity through renewable energy from an oceanic source or location; (ii) a second one as part of the decommissioning of the Pego coal-fired thermoelectric plant and, (iii) a third in the Rega do Mira perimeter, for innovation and development land use for agriculture and electricity production projects.
• ZLT are to be managed directly by DGEG or by third parties through concession awarded by a competitive tender.
• The installation of research and development projects in ZLT are subject to prior communication and registration procedure rules.

Electricity transportation and distribution networks

• Annexes II and III of the New SEN Framework Law set the bases for concessions the national electricity transportation network (RNT) and the concession bases for the national medium and high-voltage electricity distribution network (RND).
• The concessions cover mainland Portugal and have a term of 50 years in the case of RNT and 35 years in the case of RND and may be extended if justified by public interest.
• According to the new bases (in Annex IV to the New SEN Framework Law) for low-voltage electricity distribution network concession, these concessions will have a municipal geographic range and a maximum duration of 20 years.
• The unification of the technical management of the high-voltage, medium-voltage, and low-voltage distribution networks in the new Integrated Operator of the distribution networks means that the concession agreements in force will have to be renegotiated and amended.

Other Relevant Changes

• Holders of generating or storage facilities with a connection power exceeding 50 MVh are obliged to install (i) UPAC with an installed power equivalent to 0.3% of the connection power, or (ii) electric vehicle charging stations for collective use in public spaces with equivalent capacity in municipal buildings. Alternatively, Municipalities may opt for one-off cash compensation of 1,500 EUR/MVh of connection power allocated.
• For unlawful appropriation of energy, new penalties that range from the interruption of energy injection or energy supply to the payment of compensation are established.
• If a supplier has more than 200,000 clients, it must subject its electricity contracts to dynamic prices.

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Portugal approved a new law regulating participating loans through Decree-Law 11/2022 of 12 January 2022, which has the purpose of fostering investment and capitalise businesses.

Participating loans are onerous credit agreements, in the form of loans or debt securities. Their remuneration and repayment may depend partially or entirely on the borrower's financial results. Participating loans may be converted into equity if the agreement so allows.

Participating loans are "quasi-equity" instruments that present a higher risk than senior debt and lower risk than common equity, that results from the following:

• Participating loans may be classified as equity, provided their remuneration depends on the financial results of the borrower/issuer and the repayment or amortization depends on the satisfaction of the conditions for the distribution of profits set out in Articles 32 and 33 of the Portuguese Companies Code;
• The borrower cannot, among other things, repay shareholder’s loans or ancillary/supplementary capital contributions, amortizing shares or reducing the share capital without the express authorisation of the lender while the contract or securities representing the debt are not fully amortised; and
• In the event of insolvency of the borrower/issuer, they are treated as subordinated claims, but ranked above the claims of shareholders and other persons specifically related to the debtor.

In addition to the possibility of participating in the borrower’s financial results, participating loans may include equity conversion rights, such as breach of payments obligations.

This type of instrument is not new. There is a similar regime in Spain, where this type of loan is, however, limited to shareholders. Unlike Spain, Portugal restricted the granting of participating loans to entities that are licensed to provide credit on a professional basis, such as banks, loan funds and venture capital funds, as well as certain securities investment companies. This distinction may imply a different approach in each country.

For banks, participating loans can be a tool used in the restructuring of credits of distressed companies whereas for investment funds and other entities, these loans will be an alternative to shares or convertible bonds as investment instrument.

For borrowers, it is an alternative financing instrument which allows lenders to received a variable remuneration indexed to the borrower’s results, with a positive impact on the borrower’s equity, without necessarily implying the opening of the share capital to those lenders.

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The Portuguese Resilience and Recovery Plan (RRP) incentive system for the decarbonization of industry, worth 715 million Euros in non-refundable subsidies, supports up to 100% of the expenses of projects that incorporate electrification of final energy consumption, energy efficiency, renewable energy, and energy storage.

The maximum limit per new project is 500,000 Euros, of which 250,000 Euros must be used on relevant upgrades of already existing projects. This limit may be exceeded for projects that exhibit a significant potential to reduce emissions at a national level.

Under the new Regulation of the Incentive System "Decarbonization of Industry" and the Public Tender Notice, the following types of projects are eligible for these subsidies:

• New processes, products, and business models incorporating new raw materials, waste-derived fuels (e.g., biomass and biogas), replacement/adaptation of equipment and processes for sustainable technologies and renewable energy vectors. This typology also includes projects for the electrification of final energy consumption, particularly through the electrification of final energy consumption in industry and the strengthening of access and quality of service; and/or
• Energy efficiency measures, that reduce energy consumption and greenhouse gas emissions, in connection with the adoption of consumption monitoring and management systems; and/or
• Measures to incorporate energy from renewable sources and energy storage, such as hydrogen and other renewable gases.

Projects must reach COD within six months from the date of approval by IAPMEI (the Portuguese investment agency), and the expenditure financed shall be maintained and allocated to the relevant activity for a maximum duration of 2 years, with the possibility of extension by IAPMEI in duly justified cases.

Applications for the public tender must be submitted via electronic form available on the IAPMEI website. The application period will run until 7 p.m. on 31 March 2022.

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As of 1 January 2022, new rules strengthening consumers’ rights will enter into force, particularly regarding legal guarantee periods and the exercise of rights by consumers in case defective products.

Decree-Law 84/2021 of 18 October 2021 repeals Articles 9-B (Delivery of goods) and 9 -C (Transfer of risk) of the Consumer Protection Act, approved by Law 24/96 of 31 July, and Decree-Law 67/2003, of 8 April, on guarantees for consumer goods.
To adapt the rules of conformity of goods to the digital dimension of the market, the definition of "consumer goods" is extended to apply to digital goods, content, or services, for example, the purchase of digital books (eBooks), subscription to periodical publications or subscription to a streaming service. In this context, Decree-Law 84/2021 provides specific rules on the legal guarantee periods and the liability of professionals who provide digital goods, content or services through online platforms (e.g., marketplaces) of third parties.

Here is the list of the main changes introduced by Decree-Law 84/2021:

Extension of the legal guarantee period for movable items

The legal guarantee period for movable items is extended from two to three years, counting from the date the good is delivered to the consumer. In the first two years, the consumer will not have to demonstrate that the defect existed at the time of delivery of the good, since the consumer is entitled to a legal presumption of the existence of the defect at that date.

The obligation upon the consumer to report the defective nature of the product within a certain period from the date of its knowledge (two months in the case of movable items) no longer applies. As a result, the consumer can exercise his/ her rights without any obstacles, during the entire legal guarantee period.

Hierarchy between the rights to (i) repair or replacement of a good; (ii) price reduction; and (iii) termanation of the contract  

In the event of a defect in a movable item, the consumer keeps the right (i) to have the product repaired or replaced, (ii) to a proportional reduction of the price or (iii) to terminate the contract. Unlike the previous scheme, which does not establish a hierarchy of rights, these rights are now subject to different levels of precedence.

This means that in case of a defective product , the consumer must exercise the right of having the good repaired or replaced first. The repair or replacement of the good must be carried out, free of charge, by the professional within no more than 30 days.
In case of repair, the repaired good will benefit from an additional six-month guarantee for each repair, up to a limit of four repairs. The seller has to provide the parts needed to repair the product purchased by the consumer for a ten-year period.

If the defect appears in the first 30 days after the delivery of the movable item, the consumer can choose to request immediate replacement of the good or the termination of the contract, without the need for verification of any specific condition.

The exercise of the right of termination of the contract creates an obligation for the consumer to return the goods to the seller, at the seller’s expense, and for the professional to reimburse the consumer for the price paid for the goods following receipt or proof of dispatch by the consumer. Unless otherwise is agreed between the parties, and provided that the consumer does not incur in any costs for the reimbursement, reimbursement must be made by the same means of payment as for the initial transaction and within 14 days.

Liability of manufacturers for defective products

The possibility for the consumer to exercise rights of repair and replacement of the good directly before the manufacturer is kept, as well as the professional's right of recourse against a person at earlier stages of the contractual chain.

Extension of the legal guarantee for immovable property

The legal guarantee period for immovable property for construction flaws in structural elements of the property is increased from five to ten years; for all other defects, the guarantee period is five years.
In the event of a defect in immovable property, the consumer retains the right to have the defect repaired or replaced; or to terminate the contract.

Commercial guarantee (replacing the voluntary guarantee) and increased information obligations 

The voluntary guarantee (i.e., the undertaking or declaration, whether free of charge or not, given to the consumer by the seller, beyond the professional's legal obligations to guarantee conformity) is retained and renamed as the commercial guarantee.

The commercial guarantee must be provided to the consumer in writing (or in another durable medium) no later than the time of delivery of the goods, be drafted in Portuguese and include enhanced information obligations for the professional, including, in particular, a clear statement that the consumer is entitled to have the lack of conformity remedied, the price reduced or the contract terminated, and that those rights are not affected by the commercial guarantee.

Digital goods, content and services

The new legislation establishes specific rules regarding the supply of digital goods, content and services, providing the right to contract termination by the consumer in case of non-delivery. In turn, in case of non-compliance of the digital content and services, the consumer has the right to have the conformity restored, the price reduced, or the contract terminated.

The professional is under an obligation to demonstrate that the digital content or service provided was in conformity:

• In contracts where a single act of supply or a series of individual acts of supply is agreed, during the period of one year from the date of supply;
• In contracts where continuous supply is agreed, for the period during which the digital content or services are to be supplied.

Liability of professionals who provide digital goods, content or services through third-party online platforms

The new scheme provides for joint and several liability of professionals, who provide digital goods, content or services via online platforms (e.g. marketplaces), and their contractual partner towards the consumer. This means that in the event of non-delivery or non-compliance of digital goods, content or services, the consumer can exercise his/her rights against the professional who owns the online platform (referred to as the provider of the online marketplace) or the supplier of the digital good, content or service, when:

• The contract is concluded exclusively through the means made available by the provider of the online marketplace;
• The payment is exclusively made through the means made available by the provider of the online marketplace;
• The terms of the contract concluded with the consumer are essentially determined by the provider of the online marketplace or the price to be paid by the consumer is likely to be influenced by the provider of the online marketplace; or
• The associated advertising is focused on the provider of the online marketplace and not on the professional providers of the digital good, content or service.

Sanctions

The violation of the rules established by Decree-Law 84/2021 constitutes a serious economic offence, and may lead to the application of fines in the following amounts:

• Natural person, from €650 to €1,500;
• Micro company, from € 1,700 to € 3,000;
• Small company, from €4,000 to €8,000;
• Medium company, from €8,000 to €16,000; and
• Large company, from €12,000 to €24,000.

Inspection, investigation of administrative offence proceedings and application of fines and additional penalties are the responsibility of the Autoridade de Segurança Alimentar e Económica (ASAE) and, limited to the rules applicable to immovable property, IMPIC, I. P..

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The Portuguese framework for whistleblowers was approved by Law 93/2021, of 20 December 2021, implementing the 'Whistleblowing Directive' (Directive (EU) 2019/1937 on the protection of whistleblowers) into Portuguese law.

The publication of this law, which, according to the Directive, should have been transposed by 17 December 2021, comes with the anti-corruption strategy approved by the Portuguese Parliament, and introduces a wide range of rights for whistleblowers and mandatory obligations and procedures for Portuguese companies.

Compared to the Whistleblowing Directive, Law 93/2021 is much more comprehensive, as it was expected, considering that the Directive itself determined that its content only set minimum requirements for the Member-States.

This Law applies to complaints regarding (i) public procurement; (ii) financial markets and prevention of money laundering and terrorist financing; (iii) food safety for human and animal consumption, animal health and animal welfare; (iv) public health; (v) protection of privacy and personal data and security of network and information systems; (vi) violent and organised crime, among others.

As to the beneficiaries of the protection, Law 93/2021 is clear when considering as ''whistleblowers'' only those natural persons who report or publicly disclose an infringement based on information obtained during their professional activity regardless of the nature of the activity and the sector in which it is carried out.

“Professional activity” is not limited to employment relationships in force, as it includes relationships that have already ended, pre-contract negotiations and recruitment processes. Shareholders and members of corporate bodies of legal persons, volunteers, and interns, paid or unpaid, are just some of the examples of people who benefit from the protection of this law.
To benefit from the protection, it is only required that the whistleblower acts in good faith and has serious grounds to believe that the information is true, at the time of the report or public disclosure.

In addition to the whistleblower, the safeguard is extended to those who are related to the whistleblower, being covered (i) natural persons who confidentially assist the whistleblower in the whistleblowing procedure, in particular, trade union representatives; (ii) the third party who is connected to the whistleblower who may be subject to retaliation in a professional context; and (iii) legal persons or similar entities that are owned or controlled by the whistleblower, for which the whistleblower works or with which the whistleblower is connected in any way in a professional context.

To make a complaint, the law provides for the existence of:

• Inside channels;
• External channels (managed by the competent authorities); and
• Public disclosure.

Inside reporting channels are mandatory for private and public sector entities employing 50 or more employees and legal persons operating in the fields of financial services, products and markets and the prevention of money laundering and terrorist financing ("obliged entities"). However, local governments which, despite employing 50 or more people, have less than 10,000 inhabitants been excluded from this obligation.

Inside reporting channels must meet certain requirements: (i) they must ensure the secure submission and tracking of reports to ensure completeness, integrity, and preservation of the report; (ii) they must ensure the confidentiality of the identity or anonymity of whistleblowers and the confidentiality of the identity of third parties named in the report; and (iii) they must prevent access by unauthorised persons.

Inside reporting channels may be operated: (i) internally, to receive and follow up on complaints, by persons or services designated for this purpose, or (ii) externally, to receive complaints. In either case, the law provides that independence, impartiality, confidentiality, data protection, secrecy, and absence of conflict of interest must be guaranteed.

Reports may be submitted in writing, verbally, or both. In this context, a verbal report may be made using a voice message or, at the request of the whistleblower, in a face-to-face meeting.

The whistleblower can only resort to external reporting channels when: (i) there is no inside whistleblowing or reporting channel; (ii) the inside whistleblowing channel only admits the submission of complaints by employees, and the whistleblower is not; (iii) it has reasonable grounds to believe that the breach cannot be effectively-known or resolved internally or that there is a risk of retaliation; (iv) when, although the whistleblower has initially complained internally, the measures envisaged or adopted as a result of the complaint are not communicated in the legally prescribed terms; or (v) the infraction constitutes a crime or administrative offence punishable by a fine of more than EUR 50,000.

In turn, public disclosure may only occur in very exceptional circumstances, namely when the whistleblower has reason to believe that (i) the breach may constitute an imminent or manifest danger to the public interest; that (ii) the breach cannot be effectively-known or addressed by the competent authorities, given the specific circumstances of the case; or that (iii) there is a risk of retaliation, including in the case of an external report; or (iv) he/she has made an internal and/or an external report, without adequate measures being taken within the mandatory time-limits.

As regards the procedure to be adopted, obliged entities must, within seven days of receiving the complaint, notify the complainant of the receipt and the requirements for lodging a complaint through external channels managed by competent authorities and within three months at the latest communicate the measures envisaged or taken to act on the complaint. Upon request from the complainant, obliged entities must also communicate to the complainant the outcome of the review of the complaint within fifteen days after its conclusion.

The law also establishes measures to protect whistleblowers:

• Confidentiality of the whistleblower's identity, which can only be revealed by a legal obligation or a court order, preceded by a communication to the whistleblower indicating the reasons for disclosure;
• Prohibition of retaliation against the whistleblower, including, for this purpose, the inversion of the burden of proof and the presumption that certain acts, such as changes in working conditions or the application of a disciplinary sanction, when committed up to two years after the complaint or public disclosure, are motivated by the complaint or public disclosure;
• Legal protection in general terms, such as protection for witnesses in criminal proceedings; and
• Non-imposition of a disciplinary, civil, misdemeanour or criminal liability in cases of denunciation or public disclosure of offences made by the requirements imposed by law.

The violation of these rules constitutes an administrative offence, to which procedure is to be carried by the National Anti-Corruption Mechanism:

• Between €1,000 and €25,000 (natural persons) or €10,000 and €250,000 (legal persons), in case of a very serious offence, namely: preventing the lodging or not following up on the complaint; retaliatory acts; breach of the duty of confidentiality; communication or public dissemination of false information;
• Between €500 and €12,500 (individuals) or €1,000 to € 125,000 (legal persons) in case of a serious administrative offence, such as not having an inside reporting channel or having an internal channel without guarantees of completeness, integrity or preservation of complaints or confidentiality of the identity or anonymity of the complainants or third parties mentioned in the complaint, or without rules preventing access to unauthorised persons; failure to inform the complainant of the outcome of the analysis of the complaint, if the complainant has requested it; failure to train the staff responsible for handling complaints; failure to record or retain the complaint received for at least five years or during the pendency of judicial or administrative proceedings.

Bearing in mind the adaptation to the new procedures and obligations, the law provides for a transitional period of 180 days, so it will come into force on 18 June 2022. During the first half of 2022, companies should prepare themselves by establishing a whistleblowing channel, allowing the guarantees of confidentiality, anonymity and independence set out in the law to be safeguarded, and with well-defined procedures to follow up on complaints within the legal deadlines, without retaliation.