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The rules implementing the 2022 State Budget were recently approved.

We’re analyzing labor measures in this article. The main ones are:

Salary and bonuses

• State-owned companies must have instruments (e.g. collective labor agreements, legal or contractual instruments, or internal regulations approved under the State Business Sector Legal Framework) establishing mechanisms for: (i) performance assessment; (ii) performance awards; and (iii) general employee validation. The lawfulness of these acts depends on the prior existence of those instruments.
• Promotions not covered by mandatory changes in remuneration, general career progressions, as well as internal selection procedures for change of level or tier that can result in a pay raise, not explicitly mentioned in a specific rule of the 2022 State Budget Law (LOE 2022), depend on special Government approvals.
• Directors of the bodies and services can, in compliance with the legal requirements and budget sums, allow: (i) remuneration changes by management option; (ii) award performance bonuses.

New hirings

• Public Administration and Finance Government members can open hiring procedures, for open-ended contracts or fixed-term contracts and for general or special careers, as long as: (i) there is relevant public interest in recruitment; (ii) a budgetary responsibility statement is issued by the requesting body, service or entity; and (iii) the Government member leading the service or body carrying out the recruitment agrees.
• Legal persons under public law and public business sector companies can hire permanent workers.

Operating expenses of companies in the state's business sector

• The operating expenses ratio must be equal to or lower than in 2019 or 2021, depending on which is higher.
• In any case, operating expenses should be equal to or lower than in 2021 when it comes to: (i) staff; and (ii) travel, cost aid and accommodation, and the ones associated with contracting of studies, opinions, projects and consulting services.

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Introduction

The new Portuguese Electronic Communications Law ("LCE"), published on August 16, 2022, transposes Directive (EU) 2018/1972, which informs the most recent recast of the sector's regulatory framework establishing the European Electronic Communications Code ("EECC").

In 2004, Portugal transposed the Review99’s Directives (of 2002) into a single act thus creating a national version of an electronic communications code, the transposition of EECC should have been an easy task. Interestingly, as the transposition deadline was practically expired before the pandemic outbreak, the cause of this delay seems to be mostly attributable to the sector's upheavals, such as the 5G auction technology implementation, rather than to COVID-19 lockdowns.

Although it broadly follows its predecessor, the newly enacted LCE is an entirely new piece of legislation, and, as such, some relevant changes were introduced, not only to accommodate all the new features of EECC, but also to reflect the new regulatory policy priorities.

Most of the relevant new features focus on issues regarding consumers vis-à-vis operators’ rights in general, privacy in electronic communications and a thorough overhaul of the sanctions’ framework. We highlight some of them below. 

Consumer rights

Situations in which no early termination costs are charged.  The new LCE defined a few situations where early termination costs cannot be charged, such as unemployment (for reasons not attributable to the consumer), incapacity to work for more than 60 days with a loss of income or a change of address to a place where the operator cannot provide an equivalent service.

Electronic Communications Privacy

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CP, the Portuguese State-Owned Company responsible for the management of trains, concluded a new Company Agreement and respective Career Regulation with the Union, Sindicato Nacional dos Maquinistas dos Caminhos de Ferro Portugueses (SMAQ).

The Agreement is applicable to train drivers, represented by the Union SMAQ, and has already been published in the Bulletin of Labor and Employment.

In short, the new Company Agreement and respective Career Regulation introduce the following changes:

• Salary increase, retroactive to 1 January 2022;
• Removal of an index at the base for all driving career categories;
• Addition of an index at the top for all driving career categories;
• Creation of minimum tenure for index change, with a maximum of four years;
• Elimination of overlapping indices between professional categories and their managers;
• Integration of the Single Agent's Allowance in the retribution;
• Increase of the meal allowance to €7.74;
• Creation of an autonomous indicator scale for workers in the driving career;
• Establishment of a telework regime, under the terms foreseen in the Labor Code, when functions allow it; and 
• Automatic access to the Traction Assistant category.

The new Company Agreement contains a globally more favorable regime for the workers, and also covers workers who are members of SMAQ, as well as workers who are not members of a union that has signed it, within a period of three months, under the terms of the rules set out in the Company Agreement.

This new Company Agreement falls under the principle of collective autonomy and the right to collective bargaining, which are among workers' rights, freedoms and guarantees in Article 56, paragraph 3 of the Constitution of the Portuguese Republic.

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Introduction

Labor Compliance does not limit itself to hard law, but also soft law, which does not arise from strict law and which, in an employment context, may address issues such as equality and non-discrimination, moral and sexual harassment, citizenship at work, etc. Generally, these recommended behaviors arise from codes of conduct, internal regulations and collective bargaining agreements.

Companies are obviously more skeptical when having to implement rules not imposed by law. However, this complementarity between what stems from hard law and what results from soft law is   essential to comply with labor legislation, to close any gaps in the relationship between employee and employer, and to promote good working environments and employee well-being.

We have witnessed the increasing of awareness of companies’ social, moral and environmental responsibility, within the concept of ESG (Environment, Social, and Governance), during the last decades, which has improved the enforcement of equality in the workplace as well as other issues related to citizenship rights, like harassment prevention and implementation of privacy policies and personal data protection.

With the implementation of compliance policies and with the companies ‘concern to promote the "common good", reputational effects are now immediate which causes companies to become more appealing in the labor market, building a good working environment that will undoubtedly lead to the hiring and holding of talent and an increase in productivity.

In practical terms, labor compliance has meant the implementation of codes of conduct against harassment, on gender equality policies, including the tackle on pay gaps, the creation of whistleblowing channels to protect whistleblowers against retaliations in the workplace, as well as the creation of codes of conduct and ethics and compliance programs to prevent money laundering and corruption.

The obligation to adopt these soft law instruments, in some cases, arises from labor legislation or some separate pieces of legislation. In other cases, these policies stem from collective bargaining agreements negotiated between companies and unions.

Digital labor compliance in Brazil

In Brazil, Law 12.846/13, known as the Anticorruption Law, regulated by Decree-Law 8.420/15, on the responsibility of legal entities for engaging in (harmful) acts against the public administration, highlights the importance of the adoption of an adequate Compliance program for Brazilian companies and the enforcement of an effective corporate governance system capable of implementing a culture of prevention and strengthening of transparency and ethics.

The Integrity Program, created by Decree-Law no. 8.420/15 in its chapter IV, article 41, by providing a set of procedures and integrity tools to be applied internally in companies to fight corruption, brought to the Brazilian legal system the first indications of the need to adopt a true Compliance program.

In this sense, Law no. 12.846/13 boosted the adoption of mechanisms inherent to Compliance by organizations, establishing the decrease of sanctions for companies that prove their cooperation in the investigation and analysis of violations, including the application of internal procedures of integrity and audit. The Law also encouraged the implementation of whistleblowing channels and codes of ethics, according to items VII and VIII, of article 7, tools common to the Compliance program.

Main norms and instruments of digital labor compliance programs, while highlithing the LGPD

To ensure the permanence of data and activities within the legal dictates, Compliance was accentuated in the digital environment with the entry into force of the General Law of Data Protection (LGPD), Law no. 13.709/2018, which came to show how important it was to adopt specific (and effective) mechanisms in integrity programs.

The scope of the incidence of LGPD entails the adaptation not only of the sectors related to the gathering of information, but also of the other operations that require the use of data related or relatable to natural persons, having repercussions, also and therefore, on labor relations.

In Brazil, privacy and intimacy are fundamental rights (art. 5, LXXIX, of CF/88), but unlike the GDPR (General Data Protection Regulation of the European Union), LGPD does not expressly mention its applicability to employment relationships, which is indisputable. Employment relationships could not even begin and develop without the processing of personal data collected at various stages of the employment contract of workers or job applicants. The legal gap pointed out allows the Brazilian legal system to be open to comparative law (art. 8 of CLT) and in contrast with the apparent lack of protection, international standards can be used in Brazilian labor relations.

Digital labor compliance plays a fundamental role, making it necessary to review conduct standards established for compliance with other norms, in order to avoid, for example, the collection of expendable data or data which processing may be considered discriminatory.

Privacy by Design e Privacy by Default methods

GDPR introduced us to two new concepts, Privacy by Design and Privacy by Default. LGPD does not explicitly mention those concepts, but has adopted similar ones, when describing the measures that companies must implement to protect data, especially in article 46/2.

Privacy by Design means ensuring data protection from the beginning and can be better understood by looking at its seven informing principles. They are: (i) proactive rather than reactive, preventive rather than corrective; (ii) privacy by design; (iii) full functionality; (iv) end-to-end security; (v) visibility and transparency; (vi) respect for user privacy; and (vii) privacy by default.

One could say that Privacy by Default is an extension of Privacy by Design. The idea of Privacy by Default is that privacy should always be the default setting in any system or even business practice, and that the user should release access to collect more information if preferred, so that applications would collect only necessary information. In other words, the user's decision should always be respected (right to informational self-determination), since the data is the user’s property.

The methods described above allow a beginning of a project already compliant to LGPD, reducing costs with later adaptation to the law.

Possibility of introducing digital labor compliance clauses applicable to employment contracts

LGPD introduced the role of Data Protection Officer – (DPO) in Brazil, a person who acts as a communication channel between the institution, the data subjects and the National Data Protection Authority (ANPD). However, the legislator has preferred to be more flexible regarding the DPO when compared to other legislation, like, for example, the GDPR.

When it comes to data compliance in the workplace, there is no single implementation model to be followed, but there are three pillars that help: prevention, recognition and correction.

Prevention is considered the most important cornerstone, and it is up to the employer to invest most of their resources to ensure the security of their workers' information. The second cornerstone, recognition, is related to the existence of reporting channels as a form of control within the work environment. The correction cornerstone, on the other hand, establishes that any occurring breach must be immediately corrected.

The presumption of unevenness in employer-employee relationships is well known, making it unlikely for consent to be the sole and exclusive legal basis for workplace data processing, unless employees can withdraw it at any time and without adverse consequences, according to Opinion no. 2/2017 on data processing at the workplace, article 29 for data protection (employment group). Performance of a contract and legitimate interest can sometimes be invoked as reasons for data processing in employment relationships, provided that the processing is strictly necessary for a legitimate purpose and respects the proportionality and subsidiarity principles.

It should be noted that small businesses receive differentiated treatment, but are not exempt from complying with the provisions of the legislation at stake. The easing of the legislation for small businesses, in summary, refers to the simplification of data processing and the communication of security incidents (communication that can be made from the model made available by the National Data Protection Authority itself - according to Resolution CD/ANPD no. 2, January 27, 2022, which regulates the application of LGPD for small treatment agents).

Portugal - 

Digital compliance and data protection

"Compliance" is the mechanism used to achieve compliance (conformity) and to be compliant, so it can be both a means (to achieve compliance) and an end in itself (to be compliant).

Compliance can be legal, technological, administrative, among others, and is transversal to any organization, regardless of its public or private nature, area of activity and even size.

The compliance procedure, when directed to the cyberspace and digital environment, is nothing more or less than what we call digital compliance. In other words, the adoption of a set of rules, processes and procedures by companies to protect their data, which is one of their most valuable/ strategic assets.

For this reason, it is fundamental to integrate digital compliance into the business strategy of organizations. Any business activity necessarily implies processing operations of personal and non-personal data, which must be done in compliance with European and national legislation.

Regarding protection of non-personal data, the European Parliament adopted Regulation no. 2018/1807 of November 14, 2018, which was intended to promote the free movement of non-personal electronic data in the European Union. As opposed to "personal data," non-personal data is information that does not directly relate to an identified or identifiable natural person (individual). Examples of non-personal data are aggregated and anonymous data sets used for big data analysis, in the current context of the strong expansion of the "internet of things", artificial intelligence, autonomous systems and 5G.

Regarding personal data protection, it is applied in Portugal the EU Regulation no. 2016/679 of April 27, 2016, which approved the GDPR and the Law no. 58/2019 of August 8, that ensures the enforcement of GDPR in Portugal.

Portuguese law, moreover, contains provisions on the protection of personal data specifically applicable to employment, including rules on the use of biometric data and on the means of remote surveillance, which are regulated.

To enable the implementation of these laws and regulations, international standards norms are created and modified, creating a correspondence between technical and legal norms.

ISO 27001 norm is one example.

The norm intends to enable public and private organizational environments to meet the data protection standards required by the GDPR, while seeking to summarize the union between the law, the information security and management and the information technology, which represents an evidence of digital Compliance.

In Portugal, with the pandemic scenario experienced recently, cyber-attacks have become more frequent, motivated by the exponential growth in Internet traffic and the adoption of telecommuting.

Given this, and in addition to the concern of complying with the legislation on data protection, digital compliance has been an increasing concern for companies, which seek to protect themselves, their employees, customers, suppliers and all those who interact with the company.

Portuguese anti-corruption strategy 2020-2024 (MENAC)

In Portugal, many measures have been taken to prevent and repress corruption and fraud in recent years.

However, the realization that only a long term vision, bringing together efforts and generating dynamics within the different powers of the State, the different areas of governance and the private and social sectors, would be able to confront the phenomenon of corruption, determined the need to design a National Anti-Corruption Strategy 2024 ("Strategy"), which enshrined as a priority the prevention and detection of "corruption risks in the public sector, through, among other measures, the adoption of Regulatory Compliance Programs in the Public Sector, based on the experience of the private sector" (Priority 2), as well as the need to "Engage the private sector in the prevention, detection and repression of corruption" (Priority 3).

Based on these priorities, some pieces of legislation were passed, namely, Decree-Law no. 109-E/2021, of December 9, which created the National Anti-Corruption Mechanism (MENAC) and the General Regime for the Prevention of Corruption (RGPC).

MENAC assumes the nature of an independent administrative entity, whose mission is to promote transparency and integrity in public action and to ensure the effectiveness of policies to prevent corruption and related offences.

MENAC holds powers of initiative, control and sanction, and is responsible, in particular, for: (i) developing, along with the Government, programs and initiatives for the creation of a culture of integrity and transparency, covering all areas of public management and all stages of education; (ii) developing campaigns for the prevention of corruption; (iii) collecting and organizing information on the prevention and repression of corruption and related crimes; (iv) issuing guidelines and directives for the design and terms of execution of regulatory compliance programs; (v) evaluating the application of RGPC; (vi) monitoring compliance with the norms set forth in RGPC.

In short: the creation of MENAC, stemming from the Strategy, intends to prevent and detect corruption risks in the public sector, and to engage the private sector in the prevention, detection, and repression of corruption.

The future of work and the right to privacy

With the increasing use of new technologies such as artificial intelligence, the so-called "Internet of Things" (IoT) and big data analysis, concerns about privacy, data protection and digital risks have increased significantly.

The digital revolution and its impacts on the labor market are likely to create risks to privacy and the protection of personal data, particularly in teleworking and remote working, as well as on digital platforms.

In fact, the new information and communication technologies place new means of surveillance of work activity at the employer's disposal, allowing more intrusive and permanent control, as well as almost unlimited processing of personal data.

This reality highlights the importance of protecting the right to privacy and the protection of personal data.

In Portugal, the Constitution of the Portuguese Republic provides for the right to privacy (Article 26) and the right to the protection of personal data (Article 35).

At the European level, the protection of privacy results from the European Convention on Human Rights (Article 7) and the Charter of Fundamental Rights of the European Union (Article 8).

The protection of personal data, in turn, results from the GDPR, which contains a specific rule regarding data processing in employment (article 88), as well as from Law no. 58/2019, which provides for specific situations of personal data processing, particularly in the context of employment relationships (article 28).

On a strictly labor level, it is also important to take into account articles 14 to 22 of the Labor Code, which include the right to privacy (article 16) and the protection of personal data (article 17).

Taking into account, in any case, the increased risks arising from the increment and massification of new technologies, the Green Paper on the Future of Work, approved by the Portuguese Government in 2021, established new recommendations regarding privacy in the workplace, namely:

–      Prevent and strictly regulate the practice of employment background checks, preventing the evaluation of the job applicant's profile and professional curriculum from being made using personal data of the applicant that have no direct connection with the type of activity for which he/she is applying and that interfere with his/her personal or intimate sphere;

–      Prevent the use of tools that allow monitoring e-mails, websites visited, the amount of messages sent and calls/meetings held, originating a significant risk of remote surveillance of workers in real time, as well as enabling the creation of behavioral profiles.

The Future of Work is all about protecting the privacy and personal data of all parties involved, in particular workers.

Conclusion

In conclusion, to ensure the effectiveness of a Compliance program, it is essential to assess the risks involved and re-evaluate them continuously, since business is also in constant transformation, as well as technology, in order to prevent or mitigate damages resulting from the misuse or abuse of employee data.

In Brazil, regarding digital labor compliance, it appears that, although LGPD does not expressly establish provisions applicable to labor relations, the treatment of personal data is fundamental in the various stages of the employment contract, revealing itself, therefore, as a delicate area for its implementation and effective compliance. It can even be seen as an opportunity for the Brazilian legal system to open itself up to comparative law, namely, to the GDPR.

In Portugal, GDPR and national law that ensures its enforcement (Law 58/2019) have specific provisions for the employment context, which apply alongside the Labor Code, and whose compliance is indispensable to the implementation of a Compliance program.

Stakeholders have demanded parity of care in data handling, since liability for damages resulting from incidents is joint and several, and moreover, compliance with data subjects' data is a corporate value and strategic asset of organizations. 

It is important that professionals in the labor area pay special attention to the obligations imposed by legislation and prepare to adapt their work routines/practices to data protection requirements, mainly through a risk management system to be integrated into an efficient digital Compliance program in the labor context.

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Proposed Law no. 79/XXIII/2022, which amends the Labor Code, has been approved.

The Proposal, containing several measures, will be discussed and voted on in Parliament.

The main changes are:

Definition of "economic dependency”

There is “economic dependency" when the work provider is a natural person who performs an activity for the same beneficiary directly and without the intervention of a third party and obtains more than 50% of the output of that activity from the beneficiary in a calendar year (article 10/2).

Collective rights for the economically dependent

The economically dependent are now entitled to: (i) representation of their socio-professional interests by trade union associations and by workers' committees, even if they cannot be members; (ii) negotiation of collective labor regulation instruments, specific to the self-employed, through trade union associations; (iii) application of existing negotiated collective labor regulation instruments applicable to workers (10-A).

Digital platforms - presumption of employment

There is a new presumption of employment for work performed on digital platforms when certain requirements are met: the remuneration is fixed by the platform operator; the operator directs the form of action and presentation of the provider; the operator controls the activity provided, namely through electronic means; the operator restricts the autonomy of the provider with regard to the organization of the work, in particular the choice of working hours or periods of absence, the possibility of accepting or refusing tasks, the use of subcontractors or substitutes or through the application of penalties for the beneficiary operating on the platform; it restricts the possibility of choosing clients or providing activity to third parties via the platform; the work equipment and tools used belong to the digital platform operator. Presumption may be rebutted by the platform operator (Article 12-A).

There was a reinforcement of the accessory sanction for "false" service provision contracts, determining, in case of relapse: (i) the deprivation of the right to support, subsidies or benefits granted by a public entity or service, or from European funds; and (ii) the deprivation of the right to participate in public tenders or public procurement (12/3).

Algorithms and Artificial Intelligence

On the use of algorithms, artificial intelligence and related matters, collective bargaining agreements cannot exclude legal provisions unless they are are more favorable to workers (3/3).

Equality and non-discrimination also apply in the case of decision making based on algorithms or other artificial intelligence systems (24/3).

Broadening of the concept of “discriminatory behaviors”

Discrimination in pay related to the attribution of attendance and productivity bonuses, as well as unfavorable allocations in terms of evaluation and career progress (25/6 and 7) are considered to be “discriminatory behaviors”.

Adoption and foster care leave

Adoption processes and foster families are considered as justified absences from work that do not entail the loss of any rights and are considered as effective work, except for remuneration (65/1, k)).

Duty to inform the employee

The employer must now inform the employee about new aspects: (i) identification of the user, for temporary workers; (ii) right to continuous training; (iii) in the case of intermittent work, the information provided for in the legally established framework; (iv) parameters, rules and instructions on which the algorithms or other artificial intelligence systems are based (106/3).

Trial period

180-day trial period applicable to workers with a permanent contract who are looking for their first job and the long-term unemployed is reduced and/or excluded depending on whether the duration of the previous fixed-term employment contract, with a different employer, was 90 days or more (112/5).

The possibility of reducing the trial period according to whether the duration of the professional internship with positive evaluation, for the same activity and different employer, was equal to or greater than 90 days, in the last 12 months, was established (112/6).

The notice period for terminating the contract during the trial period, after more than 120 days, is now 30 days (114.º/3).

Duty to communicate to CITE (Commission for Equality in Employment) the termination of the contract during the probationary period extends to the caregiver worker (114/5).

It is mandatory to communicate to ACT (Authority for Working Conditions) the termination of the contract during the trial period applicable to open-ended contracts of first-time job seekers and long-term unemployed, within 15 days (114/6).

The new rules now state that although the termination does not depend on just cause, it cannot be abusive, according with article 334 of the Civil Code (114/7).

Fixed-term contracts

Rules on the succession of fixed-term contracts were strengthened to prevent abuse of this form of contracting, namely by preventing the new admission or assignment of a worker under a contract (fixed-term, temporary or service provision) which is executed in the same job, for the same purpose or the same professional activity (143/1).

The obligation to communicate to CITE, with a minimum of five working days' notice, of the reason for non-renewal of a fixed-term employment contract, extends to the care worker (144/3).

Compensation for termination of a fixed-term employment contract (fixed or uncertain) was extended to 24 days per year (344/2).

Temporary work

If the maximum duration of a contract for the use of temporary work has been reached, the succession in the same job of a temporary worker or of a worker employed for a fixed term, concluded with the same employer or company that has a group or control relationship with it, or maintains common organizational structures, is forbidden before a period equal to one third of the duration of the contract has elapsed, including renewals (179/1).

If a user contract is signed or renewed with an unlicensed temporary work company (ETT), the integration is done with an open-ended contract in the user company (180/5).

The duration of successive temporary work contracts in different users, concluded with the same employer or company that is in a dominating or group relationship with it, or maintains common organizational structures, may not exceed four years. Once this limit is exceeded, the contract is converted into an open-ended employment contract for temporary assignment (180/4 and 5).

Collective labor relations and collective bargaining

Trade union activity is allowed in the company even when there are no unionized workers, subject to specific applicable conditions and as long as the normal functioning of the productive activity of the company is not affected (460/2).

The choice of collective agreement is not possible if the worker is already covered by an extension decree (497/5) and the issuing of the extension decree rules out the application of an agreement that may have been chosen (515/5).

In the event of termination of a collective agreement, the party to which it is addressed may request arbitration by the President of the Economic and Social Council for review of the grounds for the termination, which suspends its effects, preventing the agreement from coming into force (500-A).

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Introduction

The advancement of technologies and the adoption of globalized and shared economic models have created new forms of provision of work, which is a challenge, regulation-wise.

Work performed on digital platforms is one of these new realities. It is characterized by the decentralization of activities and people, algorithmic management of work, and flexibility in labor relations. As a rule, it involves three parties: the platform provider, the supplier, and the claimant.

Facing these new work models, based on information and communication technologies and the use of digital platforms, the Law is trying to give new answers to regulate this new way of working.

The Green Paper on the Future of Work, which was prepared by the Portuguese Government and published in March 2022, is an example of how these concerns are gaining the attention of policy makers.

In this newsletter, specialists from MACEDO VITORINO (Lisbon, Portugal) and DENISE FINCATO (Porto Alegre, Brazil) briefly present recent legislative initiatives and court decisions regarding the regulation and framework of work performed on digital platforms, under a comparative perspective, involving the legal systems of Portugal, Brazil and Italy.

EU Directive Proposal

A Proposal for a Directive regulating the working conditions of digital platform workers and clarifying the status of these workers was long overdue. That Proposal arrived on December 9, 2021 and is now to be negotiated between the Council (Member-States) and the European Parliament. If approved, it should be transposed within 2 years at the latest.

The Directive creates a list of control criteria to determine whether the platform is (or is not) an employer, and, if at least 2 criteria are met, the platform is legally presumed to be an employer. The criteria that should be taken into account are the following: (i) supervision of work performance by the platform; (ii) restriction of freedom of choice of working hours and/or
periods of absence; (iii) obstacles to performing work for third parties; (iv) imposition of conduct rules and appearance; and (v) fixing remuneration levels (article 4). Under Article 5 of the Proposal, the platform can rebut the legal presumption of employment, and it is up to the platform to prove that there is no employment relationship.

The Proposal intends to increase transparency in the use of algorithms by platforms as well, ensuring human monitoring and the right to challenge automated decisions (article 6).

In addition, the Proposal strengthens the powers of the inspection authorities and obliges platforms to comply with a set of information duties regarding the way work is provided, the number of employees and the contractual conditions applicable (articles 11 and 12).

Finally, article 18 establishes the protection of platform workers against unlawful dismissal. With this, we can say that we will soon have a Europe fully prepared for the Digital Age.

Portugal

Recently the Portuguese Government, in the scope of the "Righteous Work Agenda", approved a bill that amends the Labor Code and that meets the provisions of the above-mentioned Directive Proposal, i.e., creates a presumption of employment relationship for work developed in digital platforms (article 12-A).

The presumption is based on the existence of a set of indicators, which include: (i) the digital platform operator sets the remuneration for the work performed on the digital platform or sets maximum and minimum limits for the remuneration; (ii) the digital platform operator processes the payment between the users and the activity provider of the platforms; (iii) the activity provider does not act in their own name, but provides its activity within the digital platform operator's organization; (iv) the communication between the users and the activity provider is carried out and managed by the digital platform operator; (v) the digital platform operator monitors the quality of the results achieved by the activity provider by providing its users with an assessment or rating of the activity; (vi) the digital platform operator monitors in real time the activity performed by the activity provider, including through a continuous geolocation system and algorithmic management; (vii) the digital platform operator exercises powers over the activity provider, including disciplinary powers, and may exclude the activity provider from future activities by deactivating the account when its assessment is considered insufficient. The presumption may be rebutted by the platform operator.

The proposed law, which has not yet been approved, does not cover special regimes that have their own rules already, as such as TVDE, which maintains, for example, the “operator”, who limits the recognition of the employment relationship between drivers and platforms.

In Portugal, Law no. 45/2018, of August 10, provides the legal regime for the activity of paid individual transport of passengers in unmarked vehicles from an electronic platform. Innovatively, the Portuguese law introduced a fourth actor in the process. In addition to the electronic platform, the driver and the passenger, there is the TVDE operator, which is the one who provides the remunerated passenger service and, in turn, concludes the contract with the drivers.

This law put an end to the "regulatory void" existing in the Portuguese legal system, establishing a set of requirements for the exercise of the economic activities in question. The start of business, both of TVDE operator and the platform operator, are subject to licensing by IMT, Institute of Mobility and Transport.

When it comes to drivers, the law defines a mandatory pre-qualification system, which includes a written contract that regulates their relationship with the TVDE operator, to which the presumption of employment contract in article 12 of the Labor Code applies.

Brazil

In Brazil, there is no specific norm regulating work relations in digital platforms. There are several bills in progress, some establishing and others excluding the presumption of employment relationship (according to articles 2 and 3 of the Brazilian Consolidation of Labor Laws - CLT), which can be described by four essential elements: subordination, personal nature, habituality and rewarding.

The recognition of the employment relationship involving the recent hiring models between app drivers and technology platform provider companies is still a new theme in the Brazilian Superior Labor Court (TST). Although some "Classes" of TST have already issued decisions recognizing the employment relationship between the driver and Uber, others have issued decisions in a different sense, showing that there is no consolidated understanding on the subject in the Brazilian Labor Court.

During the COVID-19 pandemic in 2020, digital platform service providers in the country organized the "Breque dos Apps" (Break of the Apps), a kind of national strike of service providers, which included organized groups in several cities in Brazil. The protests were attended by service providers who shut down their apps for a few hours. Among the demands that guided this mobilization were the increase in the minimum amount per trip, the request for benefits such as meal vouchers and insurance (life, accident, and theft insurance), the end of application blocking and the provision of protective equipment against the COVID-19 virus, such as masks and alcohol-gel.

In January 2022, Law No. 14/297, which regulates specifically the protection of people who provide service through digital platforms during a pre-fixed period qualified as a "public health emergency state" was passed. Among the measures, the law provides that platforms must have accident insurance plus worker compensation, as well as an obligation for service providers diagnosed with Covid-19 to receive financial assistance from the platform for an initial period of 15 days. If companies fail to comply with protection rules there can be sanctions ranging from warnings to the payment of fines.

On April 22, 2022, the Brazilian Ministry of Health published an ordinance declaring the end of the Public Health Emergency State of National Importance (Espin). This ordinance will directly affect some labor rules that were temporarily modified due to the exceptional situation faced in the last two years. Among them are obligations imposed on companies and workers' rights that have been made more flexible and, in this same sense, the termination of Law no. 14/297-22.

The challenge of regulating platform work lies in finding a balance: on the one hand, it is important to protect those who perform their work activity through telematic means; on the other hand, it is important to stimulate companies that, based on free initiative and technological advance, seek to develop their activity based on digitalization.

The Brazilian scenario still presents itself as legally insecure in the face of the development of labor relations in platforms, either due to the inexistence of specific legislation or due to jurisprudential divergence, a fact that generates legal insecurity for workers in the new economy.

Italy

In 2015, Tribunale di Milano ruled on a dispute between several entities representing the taxi drivers' category and UBER POP (procedure no. 16612). Considering that the service provided through Uber's digital platform grants the possibility, to those who do not have a cab driver's license, to perform a paid transportation service, using the company's application (which acts as an intermediary between drivers and customers), the Court of Milan considered that UBER POP's activity was a case of unfair competition, according to art. 2598 no. 3 of the Italian Civil Code.

Codice Civile, in the third paragraph of art. 2598, establishes that whoever makes use, directly or indirectly, of any means that do not comply with the principles of professional suitability and that can cause damage to a company belonging to another, is practicing acts of unfair competition.
On the other hand, article 82 of the Italian Highway Code defines the limits of the use of the vehicle in favor of third parties, sanctioning the prohibition to use the vehicle for purposes other than those indicated in the registration documents.

Recently, Decree-Law no. 143 of December 29, 2018, which regulates, in addition to the cab sector, noleggio con conducente (NCC), created new rules for the non-regular public transport system, such as the fact that NCC are required to return to headquarters after each trip. Unlike cabs, which stop in specially marked public areas, NCC can operate throughout the country, without having marked parking areas.

The law, however, did not regulate Uber at all and, nor, in general, digital platform work.

This provision will now be up to the legislator, who will have to consider the very recent EU directive.

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On 6 May 2022, the Portuguese Government enacted Decree-Law 31/2022, which regulates covered bonds issued by Portuguese credit institutions (New Covered Bonds Law) and replaces the old covered bonds law, approved by Decree-Law 59/2006, of 20 March 2006. The New Covered Bonds Law implements Directive (EU) 2019/2162 and Directive (EU) 2021/2261.

Without bringing significant changes, the New Covered Bonds Law simplifies the mortgage-backed bonds and public sector debt backed bonds and establishes a single type of bond independent of the cover asset.

Eligible cover assets include:

• Assets that fulfil the requirements set out in the European Union legislation on prudential requirements applicable to credit institutions for exposures in the form of covered bonds;
• Credits granted to public undertakings which do not meet the above requirements; or
• Other high-quality cover assets which are secured by first ranking security over assets located or registered in the European Economic Area.

Holders of covered bonds and counterparties of derivative contracts hold preferential rights which are secured by cover assets in case of insolvency of the credit institution.

In line with the Directive, bonds should have a cover pool liquidity buffer to cover the maximum cumulative net liquidity outflow over the next 180 days.

Covered bonds programs are subject to prior authorization by the Portuguese Securities Market Commission (Comissão de Mercado de Valores Mobiliários - CMVM), which has 90 days to review the application.

To ensure the authorization, the issuer must have:

• An appropriate operational program that defines the issuance procedure;
• Appropriate policies, processes, and methodologies for the protection of investors in the context of the approval of the loans included as cover assets; and
• An administration and monitoring structure to ensure that the cover assets comply with the applicable requirements.

The New Covered Bonds Law will enter into force on 1 July 2022 and is expected to make the financing of credit institutions more flexible and allow the issue of bonds which will qualify as European covered bonds.

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The new Decree-Law 30-A/2022 published today at the Portuguese official gazette implements the measures recently announced by the Portuguese Government to accelerate the entry into operation of renewable energy production projects.

Renewable energy plants, storage facilities, and production units for self-consumption are temporarily exempted of operating license or operating certificate whenever the grid operator confirms the existence of conditions for connection to grid. The operating license or operating certificate may now be requested within three years and the DGEG (Direção Geral de Energia e Geologia) may waive the need for a previous inspection.

The installation of generating plants and self-consumption units (“UPACs”) must follow minimum technical rules, to ensure the protection of natural resources, soil, water, territory, and the preservation of biodiversity, also requiring a minimum distance of 1km from population centers.

The installation of generating plants (UPACs included) with a capacity of 20 MW or more, or wind farms with at least 10 towers, are required to submit a project proposal to involve the local population.

The injection in RESP (Rede Elétrica de Serviço Público), the Portuguese public grid, of all production from existing wind power generating plants, is now allowed without administrative limitations is allowed.

Environmental impact assessment of generating plants, storage facilities, UPACs and projects to produce hydrogen by electrolysis of water, not located in sensitive areas, is no longer mandatory when their production process is free of hazardous materials and pollution, which shall be assessed on a case-by-case basis by the licensing entity.

The new rules are immediately effective for a period of 2 years, until April 19, 2024.

In addition to the above measures, Decree-Law 30-B/2022 established incentives of up to €400,000 per company to support gas-intensive industries affected by natural gas price increases resulting from the war in Ukraine.

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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.