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From 1 January 2019, travelers, who purchase a package or linked travel arrangement by using online means  (e.g. Internet or telephone) or offline from travel agencies (e.g. consumer’s domicile or workplace), will benefit from stronger consumer rights.

Businesses must inform travelers whether they are offered a package or linked travel arrangement, on their key rights through standardized information forms.

Before the purchase, they must provide to Portuguese travelers with a set of information, in Portuguese language, on the main features and characteristics of the package, the total price (including taxes), additional charges or costs, if any, arrangement for payments, among others.

Whenever the travel package or arrangement is purchased by online means, the travel agency must ensure that consumers expressly and intentionally confirm that finalizing the order will imply a payment of the service. If the service provider does not fulfill this obligation, the payment may not be required.

If the telephone is used to enter into a contract, consumers will be bound to contractual terms after signing the offer, or send his/her written approval to the service provider, unless a first approach is made by the consumer.

Businesses usually make available telephone hotlines for customer service purposes, including provision of information. In these cases, consumers may not be charged with additional costs other than basic charges.

This stronger protection is set out by Decree 78/2018, of 15 October 2018, and exclusively applies to travelers, who are consumers. The new rules aim to benefit those travelers, who purchase a package or linked travel arrangement, from an online or offline point of sale, for non-professional purposes only.

The professor and senior consultant Guilherme Machado Dray is now Partner at Macedo Vitorino.

Guilherme has been in the firm since 2015 as Of Counsel, with special focus on employment law and collective bargaining.

With the increasing number of clients, the labour team, now with six lawyers and two trainees, led by Guilherme Dray with the support of senior associate Inês Coelho Simões, has also been restructured and strengthened with the hiring of a new associate, Daniela Verdasca.

For Managing Partner, João Macedo Vitorino, "the nomination of Guilherme Dray is the result of his human qualities and the technical capacity he has demonstrated in the area of practice in which he works and also by the alignment with the culture and goals of Macedo Vitorino."

Guilherme has over 20 years of experience in the public and private sectors. He has performed academic functions, being Professor in the Lisbon University School of Law and researcher at the Centre of Research of Private Law of that University. He was Visiting Professor at Georgetown University, in Washington, and is the author of several scientific publications. He held advisory functions in the Portuguese Government and worked as manager and consultant in consulting firms, mainly in the Media, Telecommunication, and Technology as well as in Building Capacity areas in Portugal and in many other Portuguese-speaking language countries such as Brazil, Angola and East Timor.

The “Startup Visa” is a hosting program focused on foreign investors who intend to develop an enterprise or innovative project in Portugal. Such entrepreneurs may apply for a residence authorization/visa if certain requirements are met. 

This program establishes that only “certified incubators” can be responsible for supporting the development of new businesses, the provision of equipped spaces, and administrative and marketing assistance under an incubation agreement eligible candidates.

The certification process for incubators within the “StartUP Visa” program is now completed and the final list of “certified incubators” is now available at IAPMEI’s website. 

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New amendments to the Portuguese Labour Code have entered into force regarding the legal framework in the event of a transfer of undertaking, or parts of undertaking that constitute an economic entity (“TUPE”).

In the event of application of the TUPE, the employment agreements previously concluded remain in force. However, under the new rules, if the transfer of the employment agreement causes “serious damage” to the employee, namely by the transferee’s evident insolvency or difficult financial situation or, also, if the employee does not trust transferee’s policies regarding work organization, the employee can now:

• Oppose the transfer of his/her employment agreement, maintaining the transferor as the employer of the employee; or
• Terminate the employment agreement, which entitles the employee to a monetary compensation equivalent to 12 days of base salary and seniority allowances multiplied by the employee’s seniority, capped by 12 base salaries and seniority allowances.

Regarding information and consultation to employees, in addition to the information relating to the date and motives of the transfer, its legal, economic and social consequences for the employees, as well as the prospective measures regarding the employees, the transferor and the transferee are now obliged to provide information on the content of the transfer contract, providing the law with a duty of confidentiality for those who obtain this information.

Another relevant change to the TUPE regime relates to the participation of representatives of the Authority for Working Conditions (“ACT”), which may be requested by any party involved in the transfer. The intervention of the ACT aims to promote, namely, the consultation’s material and procedural regularity and validity, and the insurance of respect and compliance with the employees’ rights.

The transferor shall now be jointly and severally liable with the transferee for the due obligations during the two years following the date of transfer of the undertaking, and not for just one year.

These amendments enter into force starting today.

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The recently enacted Law 7/2018 allows creditors to convert into share capital their senior credits over commercial companies with head-office in Portugal.

The following companies may benefit from this scheme:

• Companies with a turnover above €1,000,000;
• State owned companies previously authorized by the Minister of Finance.

Insurance companies, credit institutions, financial companies, investment companies and listed companies are excluded.

The conversion of claims into capital depends on the proposal of creditors whose claims represent two-thirds of the company's liabilities or the majority of senior claims.

For such proposal to be possible, the equity (capitais próprios) of the company must be lower than the share capital and at least 10% of the senior claims (or 25%, if senior loans) must be in default for more than 90 days.

The proposal for the conversion of claims into capital must be accompanied by a report prepared by a chartered accountant and a document containing the proposed share capital increase. The share capital increase may be preceded by a share capital reduction to cover accumulated losses.

After the conversion, the equity of the company must exceed the value of its share capital.

Shareholders will have a pre-emption rights in the subscription of the share capital increase and the shareholders who exercise it may subscribe and pay for the shares that would belong to the shareholders who choose not to exercise the right, in proportion to their respective shares.

The conversion must be approved by the shareholders in a shareholders meeting within 60 days from the proposal’s notice to the company. If the shareholders meeting is not held or the proposal is rejected, the creditors may obtain a judicial order from the relevant court replacing the shareholders meeting resolution on the conversion of claims into capital.

Before the judicial order is issued, any creditor is entitled to submit a proof of claim and request the conversion of its claims into capital.

After the judicial order is issued, the shareholders will be entitled to acquire the new shares by their nominal value, provided that they pay the remaining claims held by the creditors that proposed the conversion.

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The «Why Portugal» platform is a pioneer project developed by Macedo Vitorino which offers economic, political, and legal information online, in an easy to access format.

The «Why Portugal» platform goes further than the «Why Portugal» investment guides published by Macedo Vitorino & Associados since 2014 as well as other national and international investment guides which are available in PDF and paper formats.

«Why Portugal» is available in Portuguese and English and organised in nine chapters, which describe how to set up a business, forms of investment incentives and government grants, how to apply and obtain a Portuguese residence permit or a golden visa, Portugal’s main taxes, acquiring and leasing property, hiring employees, intellectual property, software, patents trademarks and technology and dispute resolution.

The «Why Portugal» platform also includes a database of documents and publications in each chapter which gives easy and quick access to laws, official documents, reports from national and international organisations, official forms and contract templates.

“The project «Why Portugal» aims to be provide useful information to investors about Portugal. We believe that the promotion of investment should start by explaining in a simple and accessible manner the economic, political, social and legal conditions that interest investors. With this new platform we want to give investors access to the tools we use every day, giving away some of our own contract templates and forms.”, stated António de Macedo Vitorino, project coordinator and partner of Macedo Vitorino.

In preparing the «Why Portugal» website we used international sources, such as the World Bank, the World Economic Forum and the European Commission, which provide basic information to international investors about Portugal’s key economic, political and legal information and its competitive advantages when compared to other investment destinations in Europe.

To learn more about «Why Portugal» please go to https://www.macedovitorino.com/en/why-portugal/

This project reinforces Macedo Vitorino’ digital portfolio and online presence, following the launch, in 2016, of «MVStart», a program that aims to support the creation of startups in Portugal.

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The “Startup Visa” is an hosting program focused on foreign investors who wish to develop an enterprise or an innovative project in Portugal. Such entrepreneurs may apply for a residence authorization/visa if: 

• they have a real and effective interest in developing in Portugal an entrepreneurial project, including but not limited to the creation of innovation-based companies;
• the activity carried out through such project aims at the production of international and innovative goods and services;
• the project has potential to create qualified employment (at least 5 jobs in 24 months); and
• one or more “certified incubators” have shown interest in incubating the project.

A list of “certified incubators” will be made available to entrepreneurs on the IAPMEI’s website, during the month of February. These incubators will be responsible for validating the projects, for supporting the development of new businesses, for the provision of equipped spaces and for administrative and marketing assistance under an incubation agreement.

For each application, 5 residence authorizations/visas may be requested. The application can be submitted electronically in Portuguese or in English, to be examined by the IAPMEI. 

The benefits granted to entrepreneurs under the “Startup Visa” shall be in force until the end of the incubation agreement.

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Law 114/2017, which approved the 2018 State Budget (“2018 State Budget”), was recently published. In this newsletter we highlight the most relevant tax changes.

Personal Income Tax (PIT)
The main changes to PIT Code are as follows:

• The special surcharge (sobretaxa) of 3.5% was eliminated;
• Two new tax brackets, covering income between €7,091 and €10,700 and between €20,261 and € 25,000, were introduced and will be subject to lower rates of 23% and 35%, respectively; 
• Minimum threshold for PIT purposes is increased from €8,500 to €8,847.72, and will be linked to the Portuguese Social Support Index in 2018 onwards - business and independent professionals will start benefiting from this minimum threshold;
• Lunch allowances will be exempt up to €4.77, if paid in cash, or €7.63, if paid in “Meal Tickets”;
• "Education Tickets" granted by employers to their employees will be fully taxed as employment income;
• Lease rents paid by students (up to the age of 25) may be deducted in 30%, with certain limits (e.g. €300 per year) if students are displaced more than 50km from the permanent residence of their household;
• Business and independent professionals subject to the simplified tax regime (regime simplificado de tributação) will have to prove 15% of their business and professional expenses, as a condition for benefiting from the 25% PIT relief over their income; in addition, expenses which are only partially related to the business or professional activities, including (i) lease rents, (ii) 1.5% of the tax value of real estate assets or, in case of hotels or local accommodation, 4% of the tax value and (iii) other expenses with the purchase of goods and services, may only be considered in 25%;
• Income arising from services rendered to companies in which, for more than 183 days of the tax period, (i) the taxpayer holds, directly or indirectly, at least 5% of the respective shares or voting rights or (ii) the taxpayer, spouse or unmarried partner, and their ascendants and descendants collectively own, directly or indirectly, at least 25% of their respective shares or voting rights, will be fully taxed;
• Taxation of capital gains arising from the allocation of personal real estate assets to a leasing activity will be deferred until such activity ceases;
• Non-resident taxpayers may opt to be taxed over real estate income at the marginal rates applicable to Portuguese residents, provided that they are residents in another Member State of the European Union or of the European Economic Area subject to a tax information exchange scheme; and
• Capital gains arising from the disposal of shares or similar rights in companies or other entities without head-office or effective place of management in Portugal will be subject to PIT if:
  - During the 365 days prior to disposal, the value of the shares arises, directly or indirectly, in more than 50%, from real estate or rights in rem over real estate located in Portugal; and
  - The relevant real estate assets are not allocated to agricultural, industrial or commercial activities (other than the purchase and sale of real estate).

Corporate Income Tax (CIT)
The main changes to CIT Code are the following:

• State surcharge (derrama estadual) is increased for profits above €35,000,000 (from 7% to 9%) and, consequently, the special advance payment is also increased (from 6.5% to 8.5%);
• Autonomous taxation may not be deducted even if such deduction results from special legislation;
• Irrecoverable debts may be deducted as expense even if recognized in previous tax years;
• Pharmaceutical industry special contributions, like other special contributions, may not be deducted;
• Companies to adopt criteria in the allocation of expenses to permanent establishments located outside Portuguese territory;
• Mandatory assessment of CIT by tax authorities until 30 November in the event of non-delivery of annual tax returns (or until the 6th month after the deadline);
• Automatic extension, for periods of one year, of the option to apply the limitation on deductibility of net financing expenses on a consolidated basis;
• Extension to 2018 of the rules applicable to the taxation of internal works;
• Waiver of the delivery of annual tax returns (modelo 22) by entities that do not earn any income subject to CIT, provided that they are not subject to autonomous taxation; 
• Mandatory disclosure in the annual tax returns (modelo 22) of the buildings held by companies that are allocated to the personal use of their shareholders, members of corporate bodies or any administrative, management or supervisory bodies, or any of their spouses, ascendants and descendants;
• Capital gains arising from the disposal of shares or similar rights in companies or other entities without head-office or effective place of management in Portugal will be subject to CIT if:
  - During the 365 days prior to disposal, the value of the shares arises, directly or indirectly, in more than 50%, from real estate or rights in rem over real estate located in Portuguese territory; and
  - The relevant real estate assets are not allocated to agricultural, industrial or commercial activities (other than the purchase and sale of real estate);
• Companies will be obliged to adopt IT accounting systems and to keep the related documentation for 10 years;

Value-Added Tax (VAT)
The main changes to the VAT Code are the following:

• VAT in respect of irrecoverable debts will be recoverable if the insolvency proceeding ceases due to insufficient assets or if, after final distribution, the debt remains unpaid; 
• Real estate rehabilitation contracts entered directly with the National Urban Rehabilitation Fund will be subject to VAT at the reduced rate of 6%; and
• Threshold of the VAT exemption applicable to the transfer of goods to outside the European Union by non-resident taxpayers is reduced from €75 to €50.

Stamp Duty

The Stamp Duty Code is also amended, including:

• Increase of 0.1% in the rates applicable to consumer loans governed by Decree-Law 133/2009, on top of the increase approved in 2017; 
• Mandatory monthly reporting of transactions subject to stamp duty; and 
• Taxation of the insured, in contributory group insurance, in proportion to the premium.
  

Real Estate Transfer Tax (RETT)
The main changes to RETT Code are as follows:

• Granting of irrevocable powers of attorney for the disposal of shares in closed-end real estate investment funds will be subject to RETT; and
• Statutory limitation to the charge of RETT by tax authorities is increased from 8 to 12 years in case of taxpayers resident in a country, territory or region subject to a clearly more favorable tax regime.

RETT Additional
With regard to the additional to RETT:

• Certain buildings whose owners are housing and construction cooperatives, associations of residents or condominiums, will become exempt of RETT Additional under certain conditions; and
• Married and unmarried couple taxpayers may opt to be jointly taxed under RETT Additional until 120 days after the deadline for payment of the tax; this option will remain in force until they state otherwise.

Tax Benefits
In terms of tax benefits, the following changes should be highlighted:

• Retained/reinvested earnings: the period for reinvestment of retained earnings is increased from 2 to 3 years and the maximum amount is increased from € 5 million to €7,5 million; for micro and small enterprises, the deduction is increased from 25% to 50% of the taxable amount.

• Share capital remuneration: the 7% tax relief is extended to contributions in kind consisting of the incorporation of debts of any nature.

• Recapitalization: cash injections made pursuant to article 35 of the Portuguese Companies Code may be deducted (up to 20%) to the distributed profits and capital gains obtained by individuals in the year of the injections and in the following 5 years.

• Historical stores: buildings recognized by municipalities as establishments of local historical, cultural or social interest and which form part of the national inventory of establishments of this nature will be exempt from Real Estate Tax (RET).

• Urban rehabilitation: tax benefits will apply to urban buildings or apartments completed more than 30 years ago or located in urban rehabilitation areas; subject to certain conditions, the incentives will include, inter alia, RETT exemption, RET exemption during a certain period and flat rate of 5% over capital gains.

• Corporate reorganizations: tax benefits applicable to corporate reorganizations or cooperation agreements (e.g. RETT and stamp duty exemptions) are no longer subject to the approval of the member of the Government responsible for finances; however, companies must keep in their tax documentation files the grounds and evidence of the satisfaction of the exemption conditions.

• Corporate insolvency and recovery: the income, gains and positive variations arising from the payment in kind, the assignment of assets and rights to creditors and the sale of assets and rights of the insolvent will be exempt from PIT and CIT, if the insolvency proceeding ends in liquidation.

In addition to these changes, the Government was authorized to approve new PIT and CIT tax benefits, including (i) exemption of real estate income for taxpayers who join the affordable lease program (programa de arrendamento acessível) or (ii) lower tax rates applicable to taxpayers entering into long-term lease agreements.

By June 2018, the Government should present a bill to implement the conclusions of the report on the assessment of certain tax benefits.

Other amendments

Among other changes, we should also highlight the waiver of bonds required in installments payment schemes if the tax amount due is less than €5,000, in case of individuals, or €10,000, in case of companies.

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The Portuguese President recently ratified the Trade Agreement between Canada and the European Union (CETA), after its approval by the Portuguese Parliament on September 20, 2017.

CETA aims at (i) strengthening the close economic relationship between the parties, (ii) establishing clear, transparent and mutually advantageous rules governing investment, and (iii) reducing custom duties. European companies can now benefit from new opportunities and have secured easier access to Canadian public procurement. On the other hand, CETA creates new opportunities for farmers and food producers (including exports of Portuguese non-food goods to Canada), with an expected reduction of 90.9% in Canadian customs duties, which facilitates products exports such as wine and cheese.

Nevertheless, CETA has met the resistance of several European countries, as it provides for the establishment of arbitration courts to resolve disputes between multinationals and governments that will prevail over judicial courts, the rules of each national legislation and over EU law.

In Portugal, CETA provisionally entered into force on 21 September 2017, being still subject to the approval of all member countries of the European Union to become fully effective.

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An international public tender is expected to be published in both the Portuguese and European Union official journals on the second half of 2017 to select a private partner for the development of a new Hospital Centre in Lisbon (Hospital de Lisboa Oriental, hereinafter the “Hospital”) under a Public-Private Partnership (“PPP”).

The new Hospital intends to replace the hospital units of São José, Curry Cabral, Santo António dos Capuchos, Dona Estefânia, Santa Marta and the Alfredo da Costa Maternity.

The PPP’s project will have as scope the design, financing, construction and maintenance of the Hospital´s infrastructures. Clinical health services and heavy medical equipment shall be borne by the State.

After the publication date of the international public tender, competitors will have a six-month deadline to submit their tender proposals, being subsequently selected 2 to 3 competitors for a negotiation phase. The selection of the candidates will be based on two main criteria:

(i) Price: corresponding to the net present value, as at December 2019, of the private partner’s consideration provided at the tender proposal; and

(ii) The project’s technical quality: with 13 evaluation factors and a total of 88 specific features.

The PPP will have a 30-year term, which includes a 3-year term for the construction of the Hospital and a 27-year term for the maintenance of the infrastructure.

This project is expected to require a €300 million investment from the private partner and it shall have an estimated annual remuneration of €16 million to be paid by the State once the Hospital has been built.

The construction of the new Hospital located in the parish of Marvila is scheduled to start in January 2020, and will have a gross construction area of approximately 180,000.00m², with a total capacity of 875 beds and a 2,945 parking spaces to be operated by the private partner.

The Hospital is due to start operating in 2023.