According to the new guidelines, the base amount of the fine is set between 0% and 30% of the turnover related to a breach of competition law, and only when it is not possible to determine that value, will the Competition Authority take into account the undertaking's total turnover.
The new leniency regulation establishes which elements must be submitted to the PCA and enables undertakings to submit an initial application through a marker system and a summary leniency application.
The Portuguese Government approved the terms and conditions applicable to the sale of the share capital of ANA - Aeroportos de Portugal, S.A. (ANA) by private negotiation by Resolution of the Council of Ministers 94-A/2012, where the tender specifications (caderno de encargos) may be found.
Investors selected during the preliminary stage may now have access to the relevant information and carry out the necessary due diligences to submit their binding offers, which are due in mid- December 2012.
The choice of the buyer will be based not only on the price offered but also on the quality of the strategic project.
The IMF has issued the fifth review of the Portuguese Economic Adjustment Program. The report concludes that good progress has been made although the program has now entered a more challenging period.
The Portuguese Government has established the legal framework for the privatization of ANA - Aeroportos de Portugal, S.A. (ANA), holder of the airport management services' concession.
The privatization will occur through the disposal of up to 100% of the share capital by (i) a private negotiation and (ii) a public offer of up to 5% of the share capital, addressed to the ANA's employees.
The collection of bids is now in progress. The criteria for selection of the investors for submission of binding proposals will include the target price and the absence of any legal constraints of the company interested.
The Portuguese Government may subject the future sale of ANA's shares to a lock-up period and before it occurs has the power to suspend and cancel this privatization for reasons of public interest.
The Portuguese Government has established the legal framework for the 3rd and 4th stages of TAP's privatisation. Meanwhile, it has also selected Synergy Aerospace to present a binding offer to buy or subscribe TAP's shares until 7 December.
The 2013 State Budget Proposal (Budget Proposal) confirms most of the fiscal measures already announced, but contemplates some positive measures, such as the VAT cash accounting system and additional tax incentives for the reinvestment of profits.
Following the Government Program and the Memorandum of Understanding and by Decree-Law No. 25/2012 of 6 February, the Government suspended indefinitely the allocation of power injection in Public Service Power Grid for energy produced from special arrangements.
The Portuguese Government and the majority of the Social Partners reached an agreement in areas as economic growth, competitiveness and employment. Among the measures to promote the economic growth, significant changes in the labour law area are included, as follows:
1) Possibility of establishing an individual bank of hours (2 hours per day with a 150 hours limit per year);
2) Extinction of the compensatory rest as result of overtime;
3) Reduction, in 50%, of the amounts to be paid as result of overtime (25% in the first hour, 37,50% in the following hours, and 50% when the work is performed in a mandatory rest day or public holidays);
4) Closure of the establishments/stores in business days between public holidays and the weekend and consideration of those days as holidays;
5) Elimination of the extra annual holidays (3 days) for non-absenteeism;
6) Simplification of the procedures and the grounds to dismiss as a result of the redundancy due to job extinction and by ineptitude;
7) Review of the compensation schemes in the event of the termination of the employment contract by setting a maximum amount and elimination of a minimum amount;
8) Setting up a compensation fund; and
9) Elimination of the obligation to comply with some formalities before the Portuguese Authority for Labour Conditions in connection with work conditions (internal regulations, working hours, agreement of exemption of working hours, among others).
New rules on unemployment benefit will also be implemented, namely the reduction of its maximum value and respective duration, the possibility to accumulate the unemployment benefit with the salary, as well as its enlargement to the independent workers.
Pursuant to the document made available, the majority of the measures agreed will be proposed by the Government to the Portuguese Parliament in order to approve the necessary amendments to the Portuguese Labour Code. It is expectable that the new rules will come into force on the second semester of 2012.
In order to promote the restructuring of the companies and the simplification of the insolvency procedure, the Council of Ministers has approved the sixth amendment to the Insolvency Code.
This proposal creates a prior insolvency procedure aimed at restructuring companies in economic difficulties or eminent insolvency by way of an out-of-court arrangement with the debtor's creditors: the recovery procedure.
During the recovery procedure, the negotiations may not exceed 3 months, period during which the pending enforcement actions against the debtor are suspended.
If the parties do not reach an arrangement during that period, the procedure will terminate if the debtor is not insolvent after conclusion of the negotiations. Otherwise, the interim insolvency administrator appointed by the court will request the court to order the insolvency to be effective within three business days.
If the parties, with the approval of the majority of the creditors, reach an arrangement for the debtor's recovery, the recovery procedure will be concluded in a short period of time after being sanctioned by the court.
The arrangement will bind all the creditors, including those which are not party to the agreement, provided that the compliance with the legislation on settlement of debts to the Tax and Social Security Authorities and some safeguard conditions of the minority creditors are ensured.
Concerning the insolvency procedure, the proposed revision intends to simplify the formalities and proceedings by reducing deadlines (for instance, the deadline for the debtors present themselves to the insolvency is reduced to 30 days) and some stages (for instance, the incident qualifying the insolvency will be only applicable when there is evidence that the insolvency status was committed with intent) and by adapting the procedure on a case by case basis. In some cases, the court may waive to convene the assembly of creditors, for the appraisal of the report, and in other cases, it may decide to suspend the assembly of creditors for more than once during a maximum period of 15 days.
Concerning the simplification of the formalities, the insolvency procedure will be noticed at the internet site "CITIUS", which will replace the prior notification made in the official gazette "Diário da República".
On the other hand, the proposed revision intends to strengthen the liability of the debtor and management bodies when they are intentionally liable for the insolvency condition and to reinforce the organizational powers of the court concerning the procedure.
The proposal also defines the scope of powers and liability of the insolvency administrator.
As part of the compliance with administrative cooperation policy adopted within the European Union in the field of taxation, the Portuguese Government has updated its list of countries, territories and regions subject to a clearly more favourable tax regime through the approval of the Ministerial Order number 292/2011, of 8 November.
This Ministerial Order changed the Ministerial Order number 150/2004, of 13 February, which approves the list of countries, territories or regions subject to a clearly more favourable tax regime, following the implementation of the mechanisms provided not only by the Council Directive 77/779/EEC, of 19 December, but also by the Council Directive number 2008/55/EC, of 26 May.
Both of these Directives aim to strengthen the mutual assistance by the competent authorities of the Member States, especially in what is concerned with direct taxation, taxes on insurance premiums, recovery of claims relating to certain contributions, rights, taxes and other measures.
The main point of the updated list of countries, territories or regions subject to a clearly more favourable tax regime is the exclusion of the Republic of Cyprus and the Grand Duchy of Luxembourg.
Formerly, holding companies towards the Luxembourg Law (Law of July 31, 1929 and Grand Ducal Decision of 17 December 1939, nowadays repealed) were covered by the initial list of countries subject to a clearly more favourable tax regime.
The scope of this measure will be increased if the provisions contained in the Proposal for 2012 Budget Law - which sets a general worsening of the applicable regime to relations between resident companies and companies with headquarters in the so called "tax heavens": (i) there will be not possible to deduct the expenses with the payments to entities subject to a preferential tax regime when the taxpayer knows their destination, especially in case of special relationships between the taxpayer and the beneficiary or the intermediate entity, and, (ii) the corporate tax rate applicable to the income obtained or arising from these entities will increase to 30%; (iii) personal Income tax rate shall be of 30% on the investment income paid to, or received from, offshore-entities.
In this context, we should also mention Council Directive 2011/16/EU, of 15 February, on administrative cooperation in the field of taxation which provides the reinforcement of the mutual assistance obligations between tax administrations of all member states of the European Union. Portugal shall bring this Directive into force through the laws, regulations and administrative provisions from 1 January 2013.
© 2011 Macedo Vitorino & Associados