Executive summary of the main legal issues of general application to companies in 2022.
The purpose is to provide an overview of these changes to make it easier for companies to identify and implement them.
The general regime for the protection of whistleblowers was a hot topic in the national legislative panorama, and companies with 50 or more employees were required to (i) create internal channels for reporting complaints, and (ii) implement rules to ensure they are processed properly.
2. CAPITAL MARKETS, BANKING AND FINANCE
The Portuguese Securities Code was reviewed at the end of 2021 and amended again in 2022. The most significant amendments include the developments regarding public offerings, the legal regime applicable to listed companies, and the disappearance of the open company (sociedade aberta), which means some companies will now be beyond the supervisory scope of the Portuguese Securities Market Commission (CMVM). The introduction of the equity loan is also worth mentioning. Regarding the crypto-assets sector, the European Council approved the Proposal for a Regulation of the European Parliament and of the Council on Markets in Crypto-assets, and amending Directive (EU) 2019/1937 (the “MiCA Regulation”)
The European Commission published the new Vertical Block Exemption Regulation, accompanied by the new Vertical Guidelines, which entered into force on June 1, 2022. This regulation introduced several changes, with a particular impact on companies as regards distribution agreements and their relationships with suppliers or B2B customers. In September, Law 17/2022 of August 17 entered into force, which grants a wide range of new powers to the Portuguese Competition Authority.
2022 was marked by important labor law developments, with an emphasis on the new legal regime for teleworking, which posed many challenges for the human resources departments of companies and their legal advisors.
5. REAL ESTATE
We highlight Constitutional Court Ruling 468/2022 of June 28, 2022, which has a significant impact on shopping center tenants and which declared the unconstitutionality of the rule in the Supplementary State Budget for 2020, which exempted shopping center tenants from paying the fixed or minimum rent until December 31, 2020. We also highlight the ceiling of 2% for rent increases in land and building leases entered into up to December 2022 that contain no provisions on updating rents or that refer expressly to the annual rent coefficient determined by the National Statistics Institute (INE).
As regards public procurement, we highlight (i) the exceptional and temporary regime for price increases with an impact on public contracts, and (ii) the amendments made by Decree-Law 78/2022 of November 7 to several public procurement regimes in the area of research activities. The figures for the qualification categories for public works contractor licenses and private works contractor licenses—and other types of administrative permissions for construction activities—were also updated.
7. RESTRUCTURING AND INSOLVENCY
2022 was marked by the introduction of a broad range of significant amendments, primarily to the Portuguese Insolvency and Company Recovery Code, regarding the Special Recovery Process (“PER”), and insolvency proceedings, aimed both at (i) speeding up company restructuring processes and payment agreements as alternatives to insolvency proceedings, and (ii) simplifying insolvency processes.
As regards tax, we highlight the main changes made by the law that approved the State Budget for 2022, as well as the termination by Sweden of the Convention between Portugal and Sweden for the Avoidance of Double Taxation and the Prevention of Income Tax Evasion (“Portugal-Sweden DTT”). We also summarize the legislation that approved the deferral of tax obligations to support companies as a result of the conflict in Ukraine.
9. INTELLECTUAL PROPERTY, DIGITAL TECHNOLOGY AND RESOURCES, AND DATA PROTECTION
We highlight the publication of the Electronic Communications Law, the purpose of which is to harmonize certain legal aspects of the sector at a European level, such as consumer protection, universal service requirements, and, especially, the reform of the concept of electronic communications service. Geo-blocking practices and discrimination in electronic sales to consumers were also prohibited as of October. Finally, we highlight the approval of the Digital Services Package.
We highlight the entry into force of Decree-Law 15/2022 of January 14, which establishes the organization and functioning of the National Electrical System. We also emphasize the two-year transitional regime for simplifying and accelerating the administrative licensing processes for renewable projects. Also, due to the instability in the energy sector caused by the armed conflict in Ukraine, an exceptional and temporary regime was created to fix prices in the Iberian Electricity Market (MIBEL).