Blackmail, extortion, corruption, extradition and football – it’s what media dreams are made of.
But do the ends justify the means?
MVConversations with António de Macedo Vitorino
Football leaks – the largest data leak to date revealing some of the sport’s best kept secrets – has prompted a media firestorm in Portugal. One man’s fight for transparency in the world of football, uncovering widespread wrongdoing at some of Europe’s biggest Clubs and by world class players, is being done at the expense of everybody’s right to privacy.
While what Rui Pinto exposed is clearly a Pandora’s box of criminal conduct prompting numerous investigations by authorities in nine EU countries, is that enough to forget the small detail of how it was obtained? Not according to António de Macedo Vitorino.
Whistleblower or hacker?
Pinto’s lawyer, William Bourdon, is arguing that Pinto must be protected by certain fundamental legal principles, specifically that of EU whistleblowing legislation. The paradox, however, is that a fundamental legal principle is obstructed when it comes to the source of the incriminating information.
António Vitorino believes everything hinges on where we draw the line between whistleblowing and hacking: “One upholds the law, the other falls foul of it.”
Whistleblowing, in very basic terms, denotes someone who comes across material exposing criminal wrongdoings. Be it corruption, money laundering, human trafficking etc, by coming forward with information that triggers criminal investigations, these people have acted in the public interest and are protected by the law, specifically the EU Whistleblowers Directive proposals.
Hacking, however, is built on “intent”. “This is someone who goes that one step further and mounts his own private investigation” says António Vitorino, “breaking into computers purposefully looking for incriminating material. In the last Directive proposal, a whistleblower is defined as “a natural person who reports or discloses information on breaches lawfully acquired in the context of his or her work-related activities”. This is hardly the case of Mr. Pinto.”
Crossing the ethical lines
As criminals become ever more evolved, the weapons we have to fight crime need to evolve. However, António Vitorino questions whether, as a society, we can accept the blurring of the lines between legal and illegal obtaining of information, and the overstepping of our core constitutional values.
“Police cannot enter your home or your computer without a search warrant and probable cause. Freedom is paramount and our privacy needs to be protected,” he says. “If our legal system and police powers are not up to date, then that’s something that needs to be addressed.”
In the case of Football Leaks, information was obtained by hacking into the systems of Football Clubs like Sporting CP, Porto FC, Real Madrid and Paris Saint Germain, taking information and passing this to the media. In the public interest? For António Vitorino, that one fundamental line was crossed.
But what about hacking into personal emails and client-attorney messages bound by legal privilege, or sharing confidential Club information with rivals? Is crossing these lines for information that has uncovered corruption at the highest levels of the sport seen as acceptable or should it be seen as an attack on personal privacy? One more line crossed, says António Vitorino.
The line between fair and foul play plays a crucial part in determining the legality of a subsequent investigation., he adds. “The illegal and intentional breaching of privacy cannot be an acceptable practice.”
He takes the media as an example. “Journalists have a right to protect their sources. But shouldn’t the media care about how their sources came across the information?”
If wrongdoings can only be uncovered by illegal means, there is something fundamentally wrong with society.
Ultimately, António Vitorino believes “we cannot accept that allowing unfettered access to our privacy is the only way to uncover criminal actions”.
“As citizens it is our duty to fight anyone who says that we must give up our privacy and our freedom to help put criminals away.”
For several years, the Portuguese Government supported a free market approach for renewable energy producers, withdrawing all incentives to solar energy production. This meant the end of new feed-in tariff contracts and the difficult task of promoting new solar projects with free market tariffs. Expectably, the financing of such projects was heavily affected, resulting, to quote the Minister of Environment and Energy recent interview, in “…1.2 gigawatts of solar power licensed, and only 49 megawatts implemented”.
To change this state of affairs, the Portuguese Environment and Energy Minister announced in January two auctions for solar licenses with guaranteed tariffs.
The Portuguese Environment and Energy Minister is “certain that there will be lots of investors with different dimensions” interested in bidding for the licenses under new tariff structure. Promoters will be grouped by the dimension and financing capacity. But, possibly, in the auction with guaranteed tariff will not apply to the “largest players”. Auctions with guaranteed tariffs will more likely be destined to smaller players, to facilitate the access to credit to less bankable promoters.
The impact of this policy change will, of course, depend on the guaranteed tariff’s range. So, we will have to wait until April, when the auctions’ details are to be revealed.
The new solar energy policy comes in the context of the also new National Energy and Climate Plan (in Portuguese, Plano Nacional para a Energia e Clima – “PNEC”) which is mandatory to all EU countries under Regulation 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action. The Portuguese Minister of Environment and Energy announced that PNEC is due to publication on July, after a public consultation period beginning in April.
The new PNEC targets to reduce total energy consumption in 35% by 2030. It forecasts a private investment amounting to 18 billion euros in renewable energy generation facilities and in transport and distribution networks. The aim is to achieve a 47% of renewable sourced of the total energy consumption in Portugal.
The new Portuguese Real Estate Investment Trusts (“REIT”) have been established by Decree-Law no. 19/2019, of January 28, as a new type of property investment companies: sociedades de investimento e gestão imobiliária (“SIGI”).
These are the main features of SIGI:
(1) They must be incorporated as private limited liability companies by shares (sociedade anónima) with a minimum share capital of € 5,000,000. It is possible, upon decision of the general meeting, to convert already existing limited liability companies by shares or property investment undertakings with a corporate form, into SIGI.
(2) They must have a registered office and their effective management in Portugal.
(3) Their main corporate purpose is the acquisition of (i) property rights; (ii) shares of other SIGI or REIT similar companies based in another State Member, (iii) participation units or shares of real estate investment funds for urban leasing, real estate investment companies for urban leasing and also collective investment undertakings (with dividend policies similar to SIGI).
SIGI can directly manage the properties whose rights they own or contract third parties for that purpose. In addition to leasing, such properties may be used for the development of construction and rehabilitation projects and also to rehabilitation or be allocated to the use of stores or spaces in commercial centers or office spaces.
(4) SIGI shares must be listed within one year after incorporation. For that purpose, new simplified admission rules will apply, as well as specific equity dispersion requirements (at least 20% of their equity must be held by 2% or less equity holders).
(5) SIGI will be subject (i) to rules on composition and holding of assets (the value real estate assets must represent at least 75% of the total assets value and such assets must be held for at least three years after their acquisition); (ii) to the obligation of distributing a percentage of their profits in the form of dividends (iii) and to comply with a maximum indebtedness ceiling (60% of the total value of their assets).
These rules entered into force on February 1st 2019. A tax package for SIGI is expected, exempting SIGI of CIT on their asset generated income, on real estate capital gains and dividends. All combined, SIGI can be a powerful tool to foster the Portuguese real estate market, at a time this market gives signs of deacceleration.
Following devastating forest fires in 2017 and 2018, the Portuguese government published four regulations on 21 January 2019 imposing new obligations on forest land owners and tenants, as well as control measures on eucalyptus plantations and reforestation in general.
Decree-Law no. 11/2019 extends the regional forest management plans ("PROF") obligations to forest land owners and tenants.
PROF establishes specific rules for the use and exploitation of forest areas, assessing the potential of forest areas and defines the critical areas from the point of view of fire risk.
Forest land owners and tenants are required to:
- Prepare a forest management plan;
- Comply with the intervention standards in forestry areas; and
- Not to exceed the limits of area that may be occupied by eucalyptus.
With Decree-Law no. 12/2019, all afforestation and reforestation actions are subject to the authorization of the Institute for Conservation of Nature and Forests ("ICNF"), regardless of the forest species. The authorization is valid for a period of two years.
If afforestation or reforestation is not carried out correctly, ICNF may obligate the responsible land owner or tenant to remove the illegal plantations within a maximum of 180 days.
ICNF has now also the specific powers to control all areas planted with eucalyptus.
Decree-Law no. 13/2019 obliges forestry products traders to be licensed and to notify ICNF when at the beginning and end of the harvest and the places where harvesting will occur. A statement with the quantity collected must also be submitted to ICNF. After receiving that information, ICNF will issue a certificate that is now required for selling the products. Licensing and certification are both subject to the payment of fees. The entire procedures are conducted electronically at the ICNF website.
Finally, Decree-Law no. 14/2019 subjects all authorizations for the construction of buildings in areas classified as high or very high risk of rural fire and the construction of buildings for agricultural or forestry activities with municipal interest to a binding favorable opinion by the forest defense commissions.
The four new regulations are effective since January 22, 2019.
The adequacy decision of the European Commission, which allows justifying personal data transfer from the European Economic Area (EEA) to Japan, came into force on 23 January 2019.
Cross-border flows of personal data, i.e. to countries outside the EEA (third countries) are set out in the General Data Protection Regulation (GDPR). The GDPR establishes, among other solutions, that a transfer of personal data to a third country may take place where the Commission has decided that the third country ensures an adequate level of protection. In this case, a transfer will not require a specific authorization.
Adequacy criterion does not require the third country's data protection system to be identical to the one of the European Union (EU). The goal is not to mirror point by point the European legislation, but to establish a «standard of essential equivalence», which involves a comprehensive assessment of this country's data protection framework, in particular of the protection guarantees applicable to personal data and of the relevant oversight and redress mechanisms available, as detailed in the Working document on Adequacy Referential from the Article 29 Working Party.
Despite the EU has adopted adequacy decisions for another countries, including Andorra, Argentina, Canada, Faeroe Islands, Guernsey, Israel, Isle of Man, Jersey, New Zealand, Switzerland, Uruguay and the United States (EU-U.S. Privacy Shield), this is the first time that the EU and a third-country agree to recognize a reciprocal adequacy protection level. Furthermore, the EU-Japan adequacy decision is the first one adopted since the GDPR became applicable by 25 May 2018.
On the EU side, this adequacy finding was decided based on a set of additional safeguards that Japan will apply to the data of European citizens, for example, the Japanese definition of «sensitive data» will be extended, the exercise of individual rights will be facilitated, and the further transfer of Europeans' data from Japan to another third country will be subject to a higher level of protection. Japan will also establish a system of handling and resolution of potential complaints from European citizens as regards access to their data by Japanese law enforcement and national security authorities, under the supervision of the Japanese data protection authority.
In case of failure of the adequacy decision by Japan, an EU citizen may lodge a complaint to the Japanese data protection authority to obtain redress via a binding decision and/or file a civil action to obtain damages or injunction with a Japanese court.
Although adequacy decisions have no time limitation, they are periodically reviewed by the Commission. The first review of the EU-Japan adequacy decision should take place at the end of two years and then at least every four years.
Together with the EU-Japan Economic Partnership Agreement to be entered into force in February 2019, this adequacy decision will allow creating the world's largest area of safe data flows.
Traditional Space industries, as well as the New Space activity are gathering a new set of players in the ever growing market of Space, via a great deal of new possibilities, namely micro and nanosatellites on Low Earth Orbits and Sun Synchronized Orbits.
Portugal expects to attract investors in the Space industry given the privileged geostrategic position of its Atlantic islands, Madeira and the Azores.
The newly created Portuguese Space Agency (“PSA”) will have its headquarters in Santa Maria, in the Azores, where a microsatellite launching site will be built.
Decree Law no. 16/2019, published on 22 January 2019, establishes the framework for Space exploration in Portugal in line with the Portuguese 2030 Strategy for Space (Estratégia Portugal Espaço 2030), announced in March 2018.
This new legislation regulates the access of players to Portuguese or Portuguese-based space activities, establishes mandatory licensing for launching and return operations, command and control of objects, as well as the obligation of registry with PSA of all objects operating in Space of which Portugal was a launching State.
Procedures are simplified for those willing to undertake a pre-qualification process, which is especially relevant for companies wishing to conduct multiple Space endeavors in the Portuguese jurisdiction. Once the undertakings are recognized as having the necessary requirements to venture into the said Space activities, they will be exempt from further information and disclosure obligations regarding their financial, technical and operational capabilities to lawfully and successfully operate.
The regulatory powers of the PSA include the strategy, supervision and control, as well as the application of fines that may range from €250 to €44.891,81.
The relevance of a solid framework for Space exploration activity is set to impact the Portuguese Space activity, as it may attract foreign investment and boost the national Space industry, which is estimated to be worth presently around €40 million.
In 2018, Portugal won the 25th edition of the World Travel Awards for «Best Destination in the World» and «Best European Destination». But is Portugal just a nice country to visit or can Portugal become a preferred destination for investors?
In 2018, Portugal won the 25th edition of the World Travel Awards for «Best Destination in the World» and «Best European Destination» for the second consecutive year, along with 15 other awards.
Lisbon was voted «Best Destination City» and «Best City Break Destination». Madeira was considered the «Best Insular Destination» and Passadiços do Paiva «Best Adventure Tourism Attraction».
Portugal won awards for «Best Tourism Organization» and «Best Conservation Company». The Portuguese airline TAP won three awards. Five hotels in Portugal received awards, including «World’s Leading City Hotel», «World’s Leading Classic Hotel» and «World’s Leading Design Hotel».
The World Travel Awards reward excellence across all sectors of the global travel and tourism industry. Portugal beat many other recognized destinations such as South Africa, Brazil, Spain, Greece, India, Indonesia, Jamaica, Malaysia, Maldives, Morocco, New Zealand, Kenya, Rwanda, Sri Lanka and Vietnam.
Portugal was also recognized as «Best World and European Golf Destination» in the World Golf Awards in 2018.
The surge in tourism has been fuelling Portugal’s economic growth since 2014 with significant investments in new hotels and residential projects for short-term leases.
Since 2013, the number of international visitors increased from € 15,9 million to € 24,6 million in 2017. According to the Portuguese National Statistics Institute, tourism-related revenues reached € 15,2 million in 2017.
Foreign direct investment (FDI) increased 61%. Unemployment fell to 8,9% and 7.657 new jobs were created as a direct result of FDI.
The afflux of tourists is offering Portugal an unique opportunity for showcasing the country’s best qualities, attract new business ventures and make Lisbon one of Europe’s best cities to create innovative companies.
Lisbon is now recognized as a popular city for entrepreneurship, innovation, internationalization and financing of startups.
According to EY, the perception of investors of Portugal’s future attractiveness for business increased 7% since 2013.
Portugal promotes the creation of startups through the «Startup Visa», a hosting program for foreign investors who wish to develop new projects in Portugal. Applicants for startup residence visas must among other things:
- Have a real and effective interest in developing a new venture, such as the creation of innovation-based businesses;
- Propose a project with the potential to create at least five jobs in its first 24 months; and
- Have the support of a certified incubator.
In November 2018, Lisbon hosted the annual edition of the Web Summit, now the largest event for startups in the world. The Web Summit brought about 60.000 visitors and 2.250 companies from 170 countries to Portugal.
The City of Lisbon secured the Web Summit for the next 10 years and created «Hub Criativo do Beato», a new business incubation project in the centre of Lisbon that will house innovative and technology-driven companies. Factory Berlin, one of Europe’s largest incubators, Mercedes-Benz and Web Summit are among the first companies to secure a place at Hub Criativo do Beato.
For further information about Portugal’s economy and key legal aspects visit our web platform «Why Portugal».
Portuguese Industrial Property Reform In response to the need of harmonizing the industrial property rules in the European Union (EU), Decree-Law 110/2018 of 10 December 2018 approved a new Industrial Property Code (New IP Code), implementing the EU Trademark Harmonization Directive (EU Directive 2015/2436) and the Trade Secrets Directive (EU Directive 2016/943).
The New IP Code’s rules on protection of trade secrets entered into force on 1 January 2019; the remaining provisions will enter into force on 1 July 2019.
As to the existing IP registration framework, the new rules do not introduce fundamental changes, albeit they have the merit of allowing easier access to the protection of industrial property rights by simplifying and clarifying the administrative procedures for obtaining, keeping and cancelling IP rights.
One of the main novelties of the New IP Code is the strengthening of know-how and trade secrets protection rules, which are now governed by a specific regime, and even more solid than the one provided for the Trade Secrets Directive.
The New IP Code comprehensively defines “trade secrets” and typifies the trade secrets infringements. Trade secret means information which meets all of the following requirements:
- It is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
- It has commercial value because it is secret; and
- It has been subject of reasonable steps to be taken by the person lawfully in control of the information, to keep it secret.
The New IP Code also includes the following changes: (i) for disputes involving reference medicines and generic medicine, the parties have the option of initiating voluntary arbitration or filing the claim before the Intellectual Property Court, (ii) electronic communication means are now available to contact with the National Institute of Industrial Property (Instituto Nacional de Propriedade Industrial) and (iii) the effectiveness of the fight means against industrial property infringements are reinforced at an European level.
It is foreseen that the new amendments, which have the merit of clarifying the industrial property regime, will constitute an incentive for technology businesses (start-ups) to develop their activity in Portugal.
The United States lead the World Economic Forum’s competitiveness global ranking, followed by Singapore and Germany. EU countries take half of the top 10 positions.
The World Economic Forum’s 2018 edition of «The Global Competitiveness Report» assesses the performance of 140 countries in 98 relevant topics divided in 12 different subjects, including, among others, infrastructure, health, financial system, market size, business dynamism and innovation capability.
For the first time since the financial crisis of 2008, the United States topped the global ranking, much due to the successful combination of an outstanding performance of its financial system with significant funds made available for venture capital and financing of SMEs (a leading 5.6 and 5.8 out of 7 in both indexes), fluid product and labour dynamics (with notable marks on HR practices and mobility) and the market size, second only to China.
Germany was 1st among the EU countries and 3rd in the global ranking. Singapore took the 2nd place. Switzerland and the Netherlands move down.
Portugal moves up from 42nd place in 2017 to 34th and from 18th to 16th in the ranking of EU countries.
EU countries kept half of the first 10 positions. The EU as a whole improved its performance with better rankings and additional Member-States in the top fifty economies.
China and India did not move up on the charts but added 0.9 and 1.2 points to their 2017 scores, respectively. There is still a substantial gap to the leaders in the innovation race, where China and India rank 24th and 31st respectively.
The EU, Portugal included, performed better in the WEF report, showing good results on improving the competitiveness of its economies, than in the World Bank’s «Doing Business 2019», where the EU is losing ground to emerging countries in the attraction of investors.
Portugal has its highest performance in the following pillars: Infrastructure, 19th, Health, 23rd, and Business dynamism, 27th.
The World Economic Forum points out the vulnerabilities of the small size of Portugal’s domestic market, which is an unavoidable fact that can only be compensated by a dynamic exporting economy, and Portugal’s fragile macro-economic stability, especially because of the debt dynamics where Portugal scores 70 points in 100, in line with Italy and ahead of Greece by almost 30 points. Portugal drops seven positions in the employment pillar Skills, but improves in half of the indexes related to the training of its workforce.
The Global Competitiveness Report 2018 highlights Portugal’s reputation as a jurisdiction with business dynamics and as the innovation hub in Southern Europe, leading the region in the growth of innovative companies, scoring 8.3 more points than Spain and 17.9 more than Greece.
Portugal improved significantly in the strength of institutions pillar, moving up 13 positions to 30th place.
Portugal achieves its best performance in crime-related incidences, 12th, road quality, 5th, electrification rate, 1st, inflation, 1st, and the prevalence of non-tariff barriers on product markets, 5th.
In total, Portugal scores 10.2 points above the average of all 140 economies. Portugal closed the gap to 12.4 points to the 10 most competitive economies.
For further information about Portugal’s economy and key legal aspects visit our web-platform «Why Portugal».
Together with the rules on processing of personal data set out by the Regulation 2016/679 of 27 April 2016 (GDPR), which has applied since May 25, 2018, the European Union (EU) establishes new rules on processing of non-personal data.
The European Parliament approved a new regulation – Regulation 2018/1807 of 14 November 2018 –, which seeks to promote free movement of non-personal electronic data within the EU where: (i) the data processing is provided as a service to users with residence or establishment in the EU, regardless of whether the service provider is established or not in the EU, or (Ii) the data processing is carried out, for own needs, by individuals or businesses in the EU.
But, after all, what does “non-personal data” mean? In contrast to "personal data", non-personal data is any information that does not refer to an identified or identifiable natural person (individuals). Examples of non-personal data include aggregate and anonymised datasets used for analysing large volumes of data in the current context of strong development of the Internet of things, Artificial Intelligence, autonomous systems and 5 G.
In order to enable the free movement of non-personal data in the EU, Member States are obliged to repeal all non-personal electronic data localisation requirements established in their local laws until May 30, 2021. If, however, this removal could be detrimental to public security, the Member State should consult the European Commission, which, after examination, may decide whether the Member-State shall keep (or not) the localisation requirements.
The rule will be, however, the free movement of non-personal electronic data in the EU, including data portability to professional users. This may be only limited or prohibited for justified public security reasons.
Considering that non-personal data and personal data may coexist, as there is no obligation to separately store these different types of data, the new regulation applies together with the GDPR. Thus, if, for example, technological developments make it possible to turn anonymised data into personal data, such data is personal data and the GDPR will apply.
This may raise new legal issues (and ethics), particularly where decisions are taken without human interaction, including, among others, issues concerning data access and reuse and the issue of liability along the entire value chain of data processing.
In the future, the European Commission will be in charge of drafting codes of conduct with best practices and information requirements in order to ensure full transparency and interoperability in the so-called “data economy and emerging technologies."