On May 27th, 2024, the Portuguese Government finally launched the first electronic tender to purchase biomethane and hydrogen produced by water hydrolysis using electricity generated from renewable energy sources.

The tender establishes the purchase of the following maximum quantities:

• Biomethane: 150 GWh/year with a maximum price of €62/MWh; and
• Hydrogen: 127 GWh/year, with a maximum price of €127/MWh.

Transgás, S.A., in its capacity of Wholesale Supplier of Last Resort, will directly contract with producers to purchase the auctioned quantities. These agreements will last for 10 years from the first grid injection and must start within 36 months from the date of the award.

The auction is split into three main phases:

• Qualification: bidders shall submit the tender application and provide a provisional bond in the amount of 1% of the base price in €/MWh/year, multiplied by the energy the promoter intends to bid for over 10 years;
• Bidding: the tender is designed under a "descending clock" type, with multiple sequential rounds, and the outcome will be based on the price and quantity offered by the bidders;
• Awarding: successful bidders will be awarded with a certificate granting the right to sell the biomethane or hydrogen and will be required to replace and provide a new bond in the amount of 1% of the final bid price in €/MWh/year, multiplied by the awarded energy capacity for 10 years.

Any legal entities meeting the tender requirements can take part in the auction if they are registered as producers of renewable or low-carbon gases at the time of the application.

Promoters have until June 12th to request clarifications on the tender documents and must submit their applications by July 26th.

The tender documents can be accessed on the Tender Platform or the DGEG website.

In our modern days, it has become increasingly common to replace wet ink signatures with electronic signatures. As such, it is important to understand the legal effects of electronic signatures, in what situations they are allowed and what are their requirements, particularly in the labour and employment context.

These are questions usually raised by our Clients.

Within the Portuguese legal framework, electronic signatures are governed by Decree-Law 12/2021 of 9 February, which ensures the implementation of Regulation (EU) 910/2014 into Portuguese law.

Regulation (EU) 910/2014 foresees that qualified electronic signatures have the equivalent legal effect of handwritten signatures and establishes the principle that an electronic signature should not be denied legal effect on the grounds that it is in an electronic form or that it does not meet the requirements of the qualified electronic signature.

(A) Types of electronic signatures and their probative force

The different types of electronic signatures, explained below, correspond to different levels of security and trustworthiness, which has an impact on the probative force of each type of e-signature, particularly important in legal disputes, as follows:

(1) Simple electronic signatures – e.g. handwritten scanned signatures or online drawn signatures with mouse or touchpad.

This type lacks cryptographic security measures, being the least secure form of e-signature.

These signatures have the probative force of a private document subject to the free discretion of the court.

(2) Advanced electronic signatures – e.g. DocuSign or AdobeSign signatures.

To be considered as advanced electronic signatures, they must be uniquely linked to the signatory and capable of identifying him/her. Additionally, these signatures must be created using electronic signature creation data and must be linked to the data signed therewith in such a way that any subsequent change in the data is detectable.

These signatures also have the probative force of a private document subject to the free discretion of the court.  

(3) Qualified electronic signatures – e.g. electronic signature with the Portuguese citizen card or the Digital Mobile Key provided by the Portuguese Government or by the trust service providers Multicert or DigitalSign certificates.

These signatures are created by a secure signature creation device and are based on a qualified certificate for electronic signatures.

Qualified certificates for electronic signatures are provided by qualified providers, whose status is granted by the competent national authority and made official in the "National Trusted List" of each EU member state. Therefore, in order for electronic signatures to be qualified, they must be issued by a qualified certification body.

A qualified electronic signature in an electronic document is legally equivalent to a handwritten signature, i.e., qualified electronic signatures have the probative force of a private document with recognized authorship.

(B) E-signatures in the employment context

In light of the above, it is important to ascertain what types of electronic signatures are valid in the employment context and under what circumstances they can be used.

(1) When should qualified electronic signatures be used?

According to the Portuguese Labour Code, open-ended employment agreements, as a rule, do not require a written form, allowing for their signature with simple, advanced, or qualified e-signatures.

However, several provisions under the Portuguese Labour Code require a written form, such as:

a) Term employment agreements;

b) Employment agreements with foreign employees;

c) Multiple employer agreements;

d) Temporary employment agreements;

e) Part-time work arrangements;

f) Teleworking agreements;

g) Agreements to provide work with exemption from working hours;

h) Disciplinary procedures;

i) Termination of employment by mutual agreement; and

j) Non-competition agreements and permanence agreements.

For these agreements and arrangements, wet ink signatures from both the employer and the employee are required. Therefore, when electronically signed, it is advisable to use a qualified digital signature to confer equivalent legal effects as wet ink signatures.

(2) When should simple or advanced electronic signatures be used?

Simple and advanced electronic signatures are suitable for situations where the law does not mandate a written form, for instance:

a) Communications to employees;

b) Human resources policies;

c) Employee handbooks;

d) Performance evaluations;

e) Promotion letters;

f) Recommendation letters;

(3) In what situations e-signatures cannot be used?

Electronic signatures - even if qualified - cannot be used in legal transactions or documents requiring notarized documentation or notarization of signatures.

Also, if the documents need to be personally delivered to an authority (e.g., documents to be delivered by employees to Social Security to obtain unemployment benefits), only wet signature is allowed.

Overall, electronic signatures serve as a legally valid and efficient method for daily operations, especially for employer companies, emphasizing the importance of understanding their types and legal ramifications.

Order 3034/2024, published on 21 March, was one of the last directives of the former Portuguese Government Energy Secretary of State which restored the clawback tax on the electricity produced in Portugal, setting new amounts for the advance payment by the producers to the TSO, applicable as from 1 January, 2024.

The new advance payments, in a phased system following the return points of the Spanish energy tax, are now as follows:

• First quarter: 2.16 €/MWh, per unit of energy injected into the public service electricity grid;
• Second quarter of 2024: 3.24 €/MWh, per unit of energy injected into the public service electricity grid; and
• Third and fourth quarters: 4.31 €/MWh, per unit of energy injected into the public service electricity grid.

Although, contrarily from the Spanish energy tax, where the taxable amount is the income generated in the sale of electricity, under the Portuguese clawback mechanism created in 2013 by Decree-Law no. 74/2013, allegedly to correct distortions in the price of electricity on the Iberian wholesale electricity market (it never took into consideration other long time existing tax distortions, such as the different VAT rates in Portugal and Spain, as it should have if we admit the mechanism would react to different taxation regimes), the Portuguese producers are taxed per unit of energy injected into the public service electricity grid.

This difference will have a substantial negative impact on Portuguese producers, as the number of daily hours where the price of electricity in the Iberian market is close to zero, zero or even negative, is alarmingly increasing. Plus, as electricity prices continue to decrease to unthinkable values: in week 14 this year, the electricity average price in Portugal has reached €3,97MWh – a figure close to the amount of the clawback payment per MWh established for the second quarter of 2024.

So, instead of correcting a hypothetical market distortion, the Portuguese clawback tax may well develop a cause of market distortion between Portugal and Spain and become another disincentive for investors to participate in the Portuguese renewables market.

The new Portuguese Biomethane Action Plan 2024-2040 ("BAP"), published 15 March, establishes a strategy to develop the biomethane market as a sustainable way to reduce greenhouse gas emissions and combat external dependence on natural gas, with the aim of replacing natural gas with biomethane by up to 18.6% by 2040.

The PAB contemplates two phases with different time horizons and a transversal complementary axis to the two phases:

• A first phase (2024-2026) aims: to develop the biomethane market in Portugal by creating a favourable regulatory framework for the implementation of new projects; encouraging the conversion of existing biogas plants to produce biomethane; allowing the collection of bio-waste by municipalities as set in the Strategic Plan for Municipal Waste 2030; removing of barriers to injection the into the public gas network ("RPG") and to the use in the transport and industry;   

• A second phase (2026-2040) to ensure the consolidation of the biomethane market and increase the level of production, encourage management entities in the wastewater sector to use and maximize the anaerobic digestion of sludge, and the use of livestock and agro-industrial effluents (manure and slurry) for the production of biomethane, diversify the technological base of production through the use of alternative technologies, speeding up the licensing of gasification and power-to methane units, reinforcing R&D&I funding; and encourage the creation of biomethane communities or virtual pipelines to facilitate the production and injection of biomethane into the gas network.

• A complementary axis (2024-2040) for the social and environmental sustainability of the growth of the biomethane market and the active participation of society in the development of the sector:  to promote the use of sustainable vehicles and methods for the collection and transport of waste and the incorporation of digestates into agricultural fields; and implement the European strategy to reduce methane emissions into the atmosphere, enabling the agro-industrial and waste sectors to comply with it.

The PAB, as so many sectorial plans approved in recent times, is of a programmatic nature and it does not establish effective implantation measures to achieve any of its goals.  Whether it will be of use for the incoming Portuguese Government to do so is yet to be seen.

This has been done through Order of the Portuguese Energy Secretary of State of 22 February, which adds a period of 10 months for promoters to comply with the following milestones:

• Solar Auction 2019: obtaining a license or approval to prior notice for the execution of construction works; as well as the operation license.
• Solar Auction 2020: obtaining the production and operation license; obtaining a license or approval to prior notice for the execution of construction works.
• Floating Solar Auction 2021: obtaining the production and operation license; obtaining the approval for the execution project by the Portuguese Environmental Agency (APA).
• Renewable energy power plants with an installed capacity of over 1 MW: obtaining the production and operation license.
• Renewable energy power plants with an installed capacity equal to or less than 1 MW (UPPs): obtaining the operation certificate.

These extensions apply together with those already approved in 2021, 2022, and 2023, confirming the challenges faced by promoters in obtaining licenses from the Portuguese Energy Ministerial Department (DGEG). This is more so concerning the holders of the grid capacity titles (TRC) that were awarded the 2019 and 2020 auctions in obtaining financing, because of the (sometimes very) low tariffs they committed to, highlighting the shortcomings of the bidding model chosen by the Portuguese Government.

The Portuguese Government has also suspended (Order of Portuguese Energy Secretary of State of 23 February) the termination of the prior registry for renewable gas production units granting their promotors an additional period of 3 months to complete their plants’ construction.

For the first time in Portugal, the Lisbon Labour Court has acknowledged the existence of an employment agreement between a courier and a digital platform.

This landmark decision is the result of a lawsuit filed by the Portuguese Public Prosecutor's Office, following an inspection conducted by the Authority for Working Conditions (Autoridade para as Condições do Trabalho).

Law 13/2023, of 3 April (“Law 13/2023"), which amended the Portuguese Labour Code under the “Decent Work Agenda Law”, introduced new rules concerning the recognition of employment agreements in the context of digital platforms (new article 12-A). The existence of an employment agreement is now presumed when some of the following requirements are met in the relationship between the activity provider and the digital platform:

1. The digital platform establishes the remuneration for work performed on the platform;
2. The digital platform exercises management power and imposes specific rules, namely regarding how the activity provider presents themselves, their conduct towards the service user, or the provision of the activity;
3. The digital platform controls the provision of the activity; and
4. The platform owns the equipment and work tools used by the activity provider.

The Lisbon Labour Court ruled that all the aforementioned requirements were met, insofar as: (i) the digital platform manages the business between the courier and the service user (client); (ii) the employee provides their activity to the digital platform; (iii) the activity is provided against payment of a delivery fee; (iv) the platform exercises management power over the employee; and (v) the digital platform controls and supervises the provision of the activity, restricting the employee's autonomy.

This court decision could result in heavy contingencies for digital platforms that fail to adapt their business models to the new Portuguese labour rules. It may also have retroactive effects, as it opens the door to labour rights claims that existed before this court ruling.

In addition to the implications of this court decision, the Portuguese Public Prosecutor's Office reported filing more than a thousand lawsuits in the Portuguese labour courts based on similar assumptions. It is foreseeable that these digital platform companies will have to rethink how they employ couriers.

Furthermore, companies providing services through couriers and digital platforms are expected to continue asserting that they are not transport providers, but mere intermediaries between the driver/courier and the customer, which is why these companies are most likely to appeal against these decisions.