In 1993, Portugal had no backbone high pressure natural gas pipeline, storage and other infrastructures. From 1993 onwards, such infrastructures were built, and natural gas became one of the most important sources of energy used in Portugal.

According to 2020’s most recent data, the natural gas market has been witnessing an increase in consumption of 7.2% since last year.

Until 2006 the promotion of natural gas and the development of the system’s main infrastructures were handled by the Galp group companies, Transgás – Sociedade Portuguesa de Gás Natural, S.A. (“Transgás”) and GDP – Gás de Portugal, SGPS, S.A. (“GDP”), under concession agreements entered into with the Portuguese State.

The public service concession for the import, transmission and supply of natural gas through the high-pressure pipeline, was granted to Transgás, and the public service concession for the distribution of natural gas through regional pipeline networks, was granted to six different companies, held by the GDP group.

Most importantly, Decree-Law no. 30/2006 of 15 February 2006 (“Gas System Law”) transposed Directive 2003/55/EC, implementing in Portugal the common rules for the EU internal market.

The Gas System Law established (i) a National Natural Gas Distribution Network (RNDGN), licensed or licensed to several operators, to guarantee non-discriminatory and transparent access to the network infrastructures of Liquid Natural Gas (LNG) and RNDGN terminals, (ii) the legal unbundling between the network and infrastructure operators of the National Natural Gas System (SNGN) and the marketers, and (iii) the natural gas supplier and the last resort supplier.

The Gas System Law principles were specified by Decree-Law 140/2006, of 26 July 2006 (“Gas Regulatory Law”), with new rules regarding transmission, LNG facilities’ storage, and distribution and supply services.

As a result of these changes, the natural gas sector was unbundled, and is currently divided into several activities, each one with different operators. Thus, the sector is structured in (i) reception, (ii) storage and regasification, (iii) underground storage, (iv) transmission, (v) distribution, and (vi) supply.

With this briefing, we intend to present an overview on the functioning and organization of the different activities of the Portuguese Natural Gas Sector, as well as on the main players that operate on the market.

In the current context of the coronavirus disease 2019 (Covid-19), it is likely that several businesses will be unable to pay outgoings due to severe cash-flow shortages in the coming months.

According to official data, the sectors of tourism, non-food retail, automotive and components, textile/clothing, consumer durables and leisure and cultural activities will be the most affected by the crisis caused by Covid-19 in Portugal.

The measures implemented can be generally divided into four categories: (i) financial measures - moratorium on credits and financial incentive measures; (ii) tax and contributory measures; (iii) employment - simplified lay-off regime and extraordinary training plan;  and (iv) real estate – moratorium on rents.

The purpose of this briefing is to provide an overview of insolvency proceedings for Portuguese companies, so that creditors and other stakeholders may understand some of the restructuring and insolvency solutions for facing cash-flow difficulties due to Covid-19 and, particularly, in a scenario beyond Covid-19.

In the current context of the coronavirus disease 2019 (Covid-19), it is likely that several businesses will be unable to pay outgoings due to severe cash-flow shortages.

As stated by International Monetary Fund, this crisis is not simply about liquidity, but primarily about solvency at a time when large segments of the global economy have come to a complete stop.

Sectors of tourism, non-food retail, automotive and components, textile/clothing, consumer durables and leisure and cultural activities will be the most affected by this crisis. Other sectors, such as construction and real estate, which were developing positively in 2020, will also suffer a reversal in the upward trend of their activity.

In seeking to mitigate the economic impact of Covid-19, the Portuguese Government approved crisis containment measures – legal, financial, and regulatory – to protect businesses (and individuals) negatively affected by the Covid-19 pandemic.

The measures implemented can be generally divided into four categories: (i) financial measures - moratorium on credits and financial incentive measures; (ii) tax and contributory measures; (iii) employment - simplified lay-off regime and extraordinary training plan;  and (iv) real estate – moratorium on rents. A summary of these measures is detailed below.

1. Financing

1.1. Moratorium on loans

Measures

• It is prohibited to cancel, in whole or in part, the credit facilities and loans granted on or before 27 March 2020, during the period in which the measure is in force. Banks and other financing entities cannot refuse financing that had already been approved;
• For bullet loans in force on or before 27 March 2020, extension of the maturity as well as of any ancillary obligations, including interest and guarantees, namely provided through insurance or in securities;
• For other loans in force on or before 27 March 2020, suspension of payment of instalments, rents, guarantees and interest and automatic extension of the payments schedule. The contractual payment plan for the instalments of capital, rent, interest, commissions, and other charges will be automatically extended for a period identical to that of the suspension. There are no charges other than those that may arise from the variability of the contracted reference interest rate.

Who can benefit?

SMEs that have their headquarters and carry out their economic activity in Portugal and that, as of 18 March 2020, were not in:

• Default of cash payments towards financial institutions for more than 90 days or, if they were, did not meet the materiality threshold established in the Bank of Portugal’s Notice 2/2019 and Regulation (EU) 2018/1845 of the European Central Bank of 21 November 2018;
• An insolvency, suspension, or cessation of payments situation or subject to an enforcement proceeding;
• Default towards the Tax Authority and the Social Security.

Sole owners of businesses, charities and non-profit organizations may also be eligible.

The financing covered by this measure applies to credit operations granted by credit institutions, financing, leasing, factoring and mutual guarantee companies, as well as branches of credit institution with operating in Portugal

Duration

Until 31 March 2021.

1.2. Financial incentive programs

Measures

• According to IAPMEI, requests for incentive reimbursement submitted by companies will be settled as soon as possible, using, if necessary, a transitional upfront payment up to 80% of the incentive;
• Extension (for 12 months) and without interest, of the repayment term of loans granted under QREN or Portugal 2020, in situations of decrease in turnover or reserves or orders over 20% in the two months prior to the request for modification of the repayment plan, compared to the same period in the previous year;
• Eligibility of the expenses incurred with cancelled or postponed initiatives or events, foreseen in projects approved by Portugal 2020 and other funding programs;
• Consideration of the negative impacts of Covid-19 in case of insufficient implementation of actions or objectives established in the grant agreements of Portugal 2020;
• Extraordinary financial incentive to ensure the normalization phase, to prevent the risk of unemployment and the maintenance of jobs (up to one minimum wage per employee);
• Strengthening of the response capacity of IAPMEI and of Turismo de Portugal for the assistance to the impact caused by Covid-19;
• The “Capitalizar” Financial Facility – Covid-19 was created, worth EUR 200 million, to support companies whose activity is affected by the economic effects resulting from the outbreak. This Financial Facility is aimed at companies whose sales have decreased by at least 20% in the last 60 days (compared to the same period last year) preceding the submission of the application to this Financial Facility;
• Extension of the deadline for the submission of applications to calls under “Portugal 2020” incentive program.

Who can benefit?

• Companies that have their headquarters and carry out their economic activity in Portugal. They cannot also have debts to the Tax Authority and the Social Security;
• These credit lines are also available for sectors strongly affected by the Covid-19 pandemic, such as tourism, restauration, and the industrial sector, for instance, textiles and footwear.

Duration

Depending on the incentive program.

Where can you read more about these measures?

Covid-19: Moratorium on credits

Covid-19: Extension of the moratorium on bank credits

2. Tax

2.1. Deferral of the deadlines of the special payment on account, corporate income tax (CIT) and payment on account

Measures

Deferral of the deadline regarding the first instalment of the special payment on account – which should be made in March – to 30 June 2020, with no penalty.

Who can benefit?

Companies subject to special payment on account.

Duration

Until 30 June 2020.

Measures

Deferral of the deadline for submission of the CIT return (“Modelo 22”) for the 2019 tax period from 31 May 2020 to 31 July 2020, with no penalty.

Who can benefit?

Companies subject to Corporate Income Tax.

Duration

Until 31 July 2020.

Measures

Deferral of the deadline regarding the 1st instalment of the payment on account and the 1st instalment of the additional payment on account – which should be made in July – to 31 August 2020, with no penalty.

Who can benefit?

Companies subject to payment on account and additional payment on account.

Duration

Until 31 August 2020.

2.2. Deferral of delivery of VAT and withholding taxes

Measures

Payment of VAT and CIT and personal income tax (PIT) withholdings in three- or six-monthly instalments, interest free.

Who can benefit?

• Companies with a turnover up to EUR 10 million in 2019;
• Companies that have started their activity as of 1 January 2019 or that operate in closed sectors;
• Companies that have been closed under the emergency state decree;
• Companies with a drop above 20% of turnover compared to the average of the 3 months prior to the month of the obligation, compared to the same period of the previous year;
• Self-employed individuals.

2.3. Deferral of the social security contributions

Measures

Companies may only pay a third of the total amount of the Social Security contributions in March, April, and May 2020. The remaining two thirds will be deferred to the 2nd semester of 2020, paid through a three or six-monthly instalments plan, without interest. The remaining two thirds will be paid in equal and successive instalments in July, August, and September 2020 or from July to December 2020.

Who can benefit?

• Companies with a turnover up to EUR 10 million in 2018;
• Companies that have started their activity as of 1 January 2019 or that operate in closed sectors;
• Companies that have been closed under the emergency state decree;
• Companies with a drop above 20% of turnover compared to the average of the three months prior to the month of the obligation, compared to the same period of the previous year.

Duration

July, August, and September 2020 or from July to December 2020.

Where can you read more about these measures?

Covid-19: Fiscal support measures

3. Employment-related matters

3.1. Simplified lay-off (employment contracts may be suspended, or the normal working period can be reduced)

Measures

• Financial support granted by the social security to companies adhering to simplified lay-off, equivalent to 70% of 2/3 of the employee’s gross salary up to EUR 1,905; the remaining 30% being borne by the employer;
• This financial support can be added by a training scholarship, with a maximum amount of EUR 131,64 (half of which to be granted to the employee and the remaining part to the employer);
• If the normal working period is reduced to more than 66% of the normal period (for example, the employee works 80% of the normal working period), the employee receives the number of hours worked (80%), but the Social Security only contributes up to 2/3 (66%) of the salary;

During the lay-off period and in the following 60 days, the employer may not terminate employment contracts by way of collective dismissal nor redundancy of the job position.

Who can benefit?

Employers, which fulfil one of the following conditions:

• Total or partial closure of the company or the establishment resulting from statutory close of facilities and establishments;
• Total shutdown of the company or the establishment activity resulting from the interruption of global supply chains, suspension, or cancellation of orders or reservations;
• Abrupt and steep drop of at least 40% of the turnover in the period of 30 days prior to the filing of the company’s application with the social security services, with reference to the monthly average turnover of the two months prior to this period or comparing to the equivalent last year’s  month.

The employer may not be in default towards the Tax Authority and the Social Security.

Duration

One-month, monthly renewable up to six months.

3.2. Extraordinary professional training measures

Measures

The financial support is granted depending on the training hours for each employee and is limited to 50% of the employee’s gross salary with a maximum limit of EUR 635.

Who can benefit?

Companies facing a business crisis, but which have not benefited from the simplified lay-off.

Duration

One-month.

3.3. Temporary exemption from contributions payment to the Social Security

Measures

Exemption from Social Security contributions by employers (only employers’ contributions).

Who can benefit?

Employers benefiting from the simplified lay-off, extraordinary professional training measures, or extraordinary financial support. Employers must prove that their contributions and tax payments are up to date with Social Security and the Tax Authority.

Duration

During the simplified lay-off period and/or the extraordinary professional training measures.

3.4. Extraordinary financial support to facilitate the payment of salaries in the activity normalization phase

Measures

• Maximum of EUR 635, per employee, to be paid by IEFP – Instituto do Emprego e Formação Profissional;
• A complementary aid may be granted up to EUR 351, per employee, to be paid by IEFP;
• An extraordinary financial support of up to EUR 635, per employee, may be granted and paid by IEFP.

Who can benefit?

Employers benefiting from the simplified lay-off or the extraordinary professional training measures.

Duration

Until 30 September 2020.

3.5. Extraordinary incentives for the normalization phase

Measures

-         Support in the amount of a minimum monthly guaranteed payment (EUR 635.00), paid in one lump sum per worker who has benefited from the simplified lay-off;

-         Support in the amount of two guaranteed monthly minimum wages (1,270 euros), paid in two instalments over six months per worker who has benefited from the simplified lay-off;

Who can benefit?

Companies that are in a position to resume their activity, provided that they have benefited from the simplified lay-off scheme or the extraordinary training plan.

Duration

No deadline is imposed.

Where can you read more about these measures?

Covid-19: Absence from work

Covid-19: New extraordinary measures

Covid-19: Fast track lay-off

Covid-19: Privacy in time of pandemic – taking employees’ temperatures?

Covid-19: New social protection policies

Covid-19: teleworking can persist, but it is no longer mandatory

Covid-19: New measures to support resuming work

Covid-19: Simplified Lay-off and incentives to normalize the activity

4. Real Estate

4.1. Deferral of rents payment

Measures

• Tenants with businesses under lockdown or activity restrictions due to mitigation and containment measures may defer payment of the rents falling into this period to the subsequent 12-month period counting from 1 September 2020, where the deferred amount should be paid in monthly instalments of not less than 1/12 of the total amount together with the relevant rents. No penalty for delay may be claimed to tenants;
• Suspension of early termination of lease agreements by landlords;
• Suspension of expiry of lease agreements at the end of the relevant term (unless accepted by tenants);
• Prohibition of termination of commercial lease agreements on the grounds of business lockdown or activity restrictions.

Who can benefit?

Tenants of commercial lease agreements or other means of commercial exploitation of property.

Duration

Until 30 June 2021, at most.

Where can you read more about these measures?

Covid-19: payment of rents may be postponed

Covid-19: lease agreements regulatory update

The first 2020 solar auction in Portugal was announced on March 27th and has now begun on 15 June 2020, to be completed by the end of the summer. 

The outcome of the 2019 solar auction has shown how competitive the Portuguese solar market can be. There was some uncertainty for a while as the Covid-19 forced the Portuguese Government to postpone new solar energy auctions, but now it's happening! 

This paper provides a guide through its stages and rules, learn about them in the PDF. 

2020 is expected to be a critical year – if not “the” year – of 5G in Portugal. The spectrum auction takes place in April this year and new entrants will be given a chance to dispute the telecommunications market. Find out more on auction prices, spectrum and novel opportunities by clicking on the pdf!

In a near future, most competitive e-businesses will be able to gauge consumers’ needs and understanding what they want even before consumers do. Anticipating consumers’ behavior is crucial for the e-business success.

Click on the pdf to know everything about e-commerce topics. 

After mini-hydro and wind, photovoltaic solar energy could become the third wave of the renewable energy revolution in Portugal. By 2030, the power output promises to grow up to 6.6 GW using this technology. 

Portugal has been one of the most enthusiastic countries regarding renewable energies. In 2016, 28,1% of the energy produced was by renewable sources, compared to 19.2% in 2004. This is the eighth highest percentage among European countries and the fifth highest in the Eurozone. Portugal’s target for 2020 is set at 31%. Portugal has a strong solar energy potential, boosting an annual average of 2,200 to 3,000 hours of sun in the mainland, making it the European country with the highest average of hours of sun exposure. Today, the solar power output in Portugal is of 1.006 GWh. The Amareleja solar plant with its 46MW and annual production of 93 GW is the largest in Portugal. 

In 2017, renewable sources represented 41% of the electricity generated in Portugal. Still, more than 30% of the renewable quota was achieved by the electricity generated by large-scale hydro power plants. Solar energy remains very far from what it could potentially be. The Portuguese Government has, early in 2017, suspended the licensing of any new feed-in tariff photovoltaic plants. The political motive was not increasing the electricity invoice paid by consumers, but the argument passed to the market players was that the market already offered adequate conditions for the deployment of new projects without a feed-in tariff due to the continuing solar panels’ cost reduction. 

The lack of stability on promoters’ remuneration led to the tightening of the financing conditions and to several licensed projects never being built or operated. The lack of grid capacity has been another challenge to the growth of the Portuguese photovoltaics. 

Aiming at solving these challenges, in 2019 the Portuguese government made several modifications on the licensing photovoltaics power plants and changed significantly the solar production ecosystem.

To learn more about this subject, click on the pdf.

#whyportugal

Quick and simple registration systems can save your IP from falling into the wrong hands and ensure your business and your brand are protected in Portugal.

In today's world a business’s brand is as important as its product or services. And the intellectual creations behind it are what gives a business its unique competitive edge. The importance of protecting your Intellectual Property (IP) assets cannot be undervalued. Neglecting to do so can put your business at risk, affecting essential core services and your long-term viability.

Are my IP rights covered in Portugal?

Yes, it has never been quicker or easier to ensure your IP rights are protected on par with other EU Member States and in line with EU directives. Portugal is also member of the World Intellectual Property Organization (WIPO) and party to numerous international agreements, including the Berne Convention, the Universal Copyright Convention, the European Patent Convention and the Patent Cooperation Treaty.

The law covers your industrial property rights – trademarks, patents and designs – and your copyright, which protects literary, artistic and musical works, multimedia creations, videograms and phonograms, computer programs and databases.

To note, while IP rights are territorial, many can be registered at the Portuguese Institute of Industrial Property (INPI) for both national and EU protection, while other EU rights must be arranged direct with the relevant EU European Patent or IP Office. International rights must be handled with the WIPO.

What falls within the category of ‘trademarks’?

From non-generic words, logos, slogans, sounds, etc., your trademarks are your brand – think McDonald’s golden arches or Nike’s “Just do it”. These important business assets distinguish a business, its products and services within the relevant market. We cannot emphasis enough the importance of securing your right to trademark your products, etc., as yours and yours alone.

Registration protects your rights for 10-year periods, without limits on renewal, but to be eligible, signs have to be unique or distinctive, such that they could be easily identified by a third party. ‘Signs’ can be represented graphically, by words, people’s names, drawings, letters, numbers and sounds, for example, as well as the form of the product or respective packaging and even your advertising slogans. What ‘signs’ cannot be is descriptive or just the name of your product or service.

To note, well-known or prestigious trademarks are given a special degree of protection, even if they have not been registered.

How are trademarks registered and where will they be protected?

Any person or legal entity from any country in the world can apply for the registration in Portugal, and you can do it online at https://inpi.justica.gov.pt/, but for entities, all stakeholders must take part. Trademarks registered at the INPI are only protected within Portugal, so if you are looking for EU-wide protection you must register at the EU IP Office.

For international protection in over 100 countries, you have to register with the WIPO. You must have a business, be a national or domiciled in a member country of the Madrid System (International Trademark Registration Treaty), but be aware that each country’s national law governs the registration so your application could be accepted in some and rejected in others.

Trademark applications in Portugal will be denied if they are a reproduction or imitation of a well-known Portuguese trademark, or if they apply to identical or similar products or services that could cause confusion with that well-known trademark. Applications will also be refused if the trademark is identical or similar to a prestigious Portuguese or EU trademark, even if related to different products or services, in a way that takes unfair advantage of the prestigious trademark or causes it injury.

To watch out for at both national and EU levels is the fact that trademarks need to be actively used for five consecutive years, otherwise the registration expires, and once your trademark products are in the EU market, your rights are considered exhausted and you cannot disallow the use of the trademark on the product.

What rights are protected by a ‘patent’?

If you have got a new invention, way of solving a technical issue or even a new way of doing something, protecting it with a patent is paramount. This ensures your right to exclusive use and that others cannot use your ‘invention’ without your express permission for 20 years from the date of application in Portugal. You can also apply for a supplementary protection certificate that extends protection for a further if you are dealing in pharmaceutical and plant protection products.

Portuguese patents protect others from manufacturing, offering or storing an invention with an industrial use without your consent. This includes anything biological in nature or process that produces, treats or uses biological material but does not extend to: discoveries; scientific theories and mathematical methods; materials or substances already in existence; nuclear materials; aesthetic creations; schemes, rules and methods for performing mental acts, playing games or doing business, computer programs and informative presentations. If the commercial exploitation of an invention would be contrary to Portuguese law, public policy, public health and good practice then it is also excluded.

To be covered, your invention has to be novel, capable of industrial application, and it cannot be something that would be obvious to someone with average knowledge in the relevant technical field. Once you have the patent you must exploit the invention within four years from the application date or three years from the date it was granted, whichever is longer, and you have to commercialise the results.

To note, a patent can be used by a third party if you enter into a license agreement or through its sale to a third party.

How and where are patents registered?

As with trademarks, registration is territorial. For protection valid in Portugal you must register at INPI, in person or online at https://inpi.justica.gov.pt/ and for an EU-wide patent (not including Spain and Croatia) you can either do so at INPI or direct with the EU Patent Office but the application must be in either English, French or German. The patent will be automatically validated in all EU Member States and only subject to maintenance fees in one country, but be aware that national laws govern registration in each country. Relevant fees apply and the protection period for both is 20 years.

Once the patented products are placed on the EU market, your rights as the patent-holder are considered exhausted and you cannot disallow acts related with the patented products.

International patents are dealt with by the WIPO, ensuring your patent is protected in over 150 countries with a single application and set of fees. The applicant must be a national or resident of a member country of the Patent Cooperation Treaty. However, it is the national laws that govern the registration in each country.

When does a ‘utility model’ apply?

If you don’t meet the patent criteria, you can always try for a utility model with the INPI with applications in person or online at https://inpi.justica.gov.pt/. With less stringent requirements, a simplified approval process and lower fees, this applies to minor inventions – products or procedures with industrial application – that still require a level of protection.

Utility models, however, don’t cover anything biological in nature and last only six years from the date of application. This can be extended, but only up to a maximum of 10 years.

What protection can secure ‘design’ rights?

Your business’s designs need to be safeguarded, granting you exclusive rights and ensuring third parties can’t copy or commercialise them. Design rights protect visual appearance, shape or configuration for unique two- or three-dimensional forms, and while they don’t have to be 100% ‘new’ they have to include novel combinations or layouts of known elements with a distinctive character.

Once registered in Portugal, designs are protected for five years periods from the application date, renewable for up to a maximum of 25 years. Registered designs also benefit from automatic copyright protection applicable from the date of creation.

You can register for national protection at INPI and EU-wide at the EU IP Office with just a single set of fees to cover all Member States. WIPO registration grants protection in 65 countries, and to qualified you must be a business or be a national or domiciled in a country that is part of the Madrid System. Once again, it is national laws that govern registration in each country and your rights are considered exhausted once the products where the design was incorporated or applied are placed on the EU market.

To note, unregistered Community designs have an automatic three-year protection as from the date of their public disclosure within the EU. This prevents commercial use from any copy of the design by third parties.

How can works be copyrighted?

Once an idea has been physically expressed, then copyright comes into play, protecting literary and artistic works, music, software, architectural works and even databases and computer programs, among others.

Copyright does not have to be officially registered to be protected – its automatic upon the creation of the work. It is highly advisable, however, to register with the relevant authorities worldwide to ensure that you control whether, or under what circumstances, the work can be used by third parties, and gain recourse if used without permission

In Portugal, you may register with the General Inspection of Cultural Activities (IGAC), part of the Ministry of Culture, and you can even delegate the administration of your copyright to a collecting society, like the Portuguese Society of Authors (SPA) or ASSOFT - Portuguese Association of Software. Portugal also is party to international treaties and conventions (such as the Berne Convention) that allows for protection in numerous countries.

Authors or copyright owners of any works covered by copyright have the right to assign or licence their economic exploitation. Protection generally runs for 70 years following the death of the author or from posthumous publication, after which the works enter the public domain and can be used freely. This does not, however, apply to what is known as the ‘moral’ rights to the work. As an author this means you have the right to be recognised as the author of the work and to protect it. ‘Moral’ rights are not assignable, cannot be sold, allocated or waived – even if the author authorises its exploitation – and they continue indefinitely.

What protection is afforded to databases and computer programs?

Databases are covered by copyright if considered an ‘intellectual creation’ under the Portuguese Protection of Databases Law. This lasts 15 years from the end of the calendar year in which the database was created. And there is even implied protection for unregistered databases where substantial investment is involved in obtaining, verifying or presenting its contents.

Computer programs can get the same level of protection as literary works if they fall within the legal criteria of being ‘creative’, as defined in the Portuguese Computer Program Rights Law and you can register the program on the IGAC or ASSOFT. Any unauthorised economic exploitation is considered a violation of the Portuguese Computer Program Rights Law and deemed a criminal offence under the Portuguese Cybercrime Law.

As the program author, you have ‘personal’ rights, meaning you have the right to be recognised as the author of the work and can mention the program’s name. As owner of a program, you have the right to economic exploitation including permanent or temporary reproduction by any means and in any form, make changes and any other modifications as well as reproducing the results and distribution to the public. In addition, you can put originals or copies into circulation and to rent out those copies. Also, a program created by an employee in the execution of their duties or following instructions given by their employer, is considered a ‘collective work’ owned by the company.

To note, anyone with the right to use a copy of the program can, without the authorisation, make a back-up or observe, study or test its functioning, and a licensee or anyone with the right to use it (or on behalf of someone authorized to do so) can perform a decompilation of the parts necessary for interoperability with other programs. This is only legal if obtaining the information is intrinsic to achieving interoperability and if the information is not easily accessible.

Can ‘trade secrets’ be protected and what circumstances do that cover?

Any confidential business information giving competitive advantage to others can be considered a trade secret, and it is your business’s most valuable asset. This includes information obtained from business plans, customer data, recipes and manufacturing processes through to know-how and technical knowledge (potentially patentable). Trade secrets don’t require registration to be protected, it is automatic, but there are certain conditions that need to be met.

The disclosure, acquisition or use of your trade secrets without your consent is illegal if the information is secret, has commercial value due to being secret and has been subject to considerable diligence by the person responsible for the information in order to keep it in secret. It is also illegal if someone, at the time of obtaining, using or disclosing a trade secret, had or should have known that the secret had been obtained directly or indirectly from another person who was using or disclosing it illegally.

It is not illegal however if someone gets your trade secrets through independent discovery or creation, due to the employee’s (or their representative’s) right to the information, through consultation in accordance with national practice or the law or in other circumstances that are considered to be in line with honest commercial practices.

If there has been a breach or well-founded fear that others could cause serious and irreparable damage to your trade secret, the court may, at your request, order the appropriate precautionary measures. The court can also order the prohibition of the use or disclosure of the trade secret, the production, offering, placing on the market or use of the infringing goods, as well as the import, export or storing of the infringing goods for those purposes.

We also advise that whenever you are dealing with the exchange of confidential and sensitive information to business partners, shareholders, employees, suppliers and customers, you enter into a non-disclosure agreement in case unfair competition, abuse of right and other legal rules protecting business secrets do not apply or offer sufficient protection.

 

For help with this and all your IP rights, as well as how we can help ease the process, read our Guide ‘Why Portugal?’.