Portugal: What happened in 2021 and significant events in 2022

The Year to Come and Year in Review summarise a selection of major developments you should be aware of from 2021, and a selection of key developments expected in 2022.

Updates in

27

key areas in 2021 and 2022

"With the progressive return to a “new normal”, 2021 slowly left behind Covid-19 restrictive measures to welcome changes in structural laws suited to our new reality. 2022 will be a decisive year, with important political decisions and very substantial reforms ahead to get Portugal ready for the future. More about these reforms is reflected in our Year to come/Year in review publication."

Diogo Plantier Santos, Real Estate Partner

Diogo

Portuguese law highlights in 2022

European Electronic Communications Code and Digital Single Market

The implementation of Directive on the European Electronic Communications Code and the Directive on copyright and related rights in the Digital Single Market should be finally completed.

EU Preventive Restructuring Directive and EU Whistleblowing Directive

Entry into force of the proposals that implement the EU Preventive Restructuring Directive and EU Whistleblowing Directive. Both will impose changes across multiple areas.

Capital Markets, Banking and ESG Developments

Highly relevant developments are expected in the Capital Markets, Banking and ESG frameworks.

New regulation to empower the Competition Authorities: Legislative proposal no. 99/XIV/2 was submitted this year. It implements Directive (EU) 2019/1 that aims to empower the competition authorities of the Member States to be more effective enforcers and ensure the proper functioning of the internal market. This new framework will amend the current Competition Legal Framework (Regime Jurídico da Concorrência) and the Competition Authority Statutes (Estatutos da Autoridade da Concorrência), to ensure that the Portuguese Competition Authority has additional guarantees of independence, as well as the power to investigate and decide on fines.

Discussions in Parliament are still continuing, although the Government is intending to accelerate approval of this proposal. Due to the vacatio legis provided for most of the provisions, we can expect this new framework to be fully in force in 2022.

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Credit Servicers, Credit Purchasers and the Recovery of Collateral Directive: In 2018, the European Commission presented a proposal for a directive to develop secondary markets for non-performing loans (NPLs) by removing restrictions to the transfer of NPLs by credit institutions to non-credit institutions, while at the same time safeguarding consumer’s rights. This proposal also intends to increase the efficiency of debt recovery procedures by creating a new framework for extrajudicial enforcement of claims. The proposal was recently approved and was published on 28 November 2021. We can expect developments and discussions during 2022, considering the directive must be implemented by Member States in 2023.

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New framework for banking activity on the horizon: In April 2021, the Portuguese Banking Regulator (Banco de Portugal) issued a final report containing the conclusions of the public discussion on the draft of the Banking Activity Code. The Code aims to substitute, systemise and update the former Legal Framework of Credit Institutions and Financial Companies (Regime Geral das Instituições de Crédito e Sociedades Financeiras), as well as implement the EU “Banking Package” Directives (CRD V and BRRD II) and (partially) the Directive on the prudential supervision of investment firms.

The Portuguese Ministry of Finance is examining the draft and we may expect it to be presented and discussed in Parliament in 2022.

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Expected new framework on Collective Investment Undertakings: A revision of the current framework of collective investment undertakings (Regime Geral dos Organismos de Investimento Coletivo) is being discussed, although no legislative draft has yet been made publicly available. We expect new developments, including the publication of a draft, to occur during 2022.

Implementation of the EU Collective Redress Directive: Directive (EU) 2020/1828 represents a significant milestone for the development of representative actions to protect the collective interests of consumers. This Directive aims to ensure that consumers have access in all Member States to at least one injunctive and redress measure, and establishes rules to guarantee that the respective proceedings mechanism is efficient and effective, including in cross-border situations.

Member States will have to implement the Directive into their national laws by December 2022.

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Implementation of the Transparent and Predictable Working Conditions Directive: Directive (EU) 2019/1152 sets out the minimum rights that every worker in the EU who has an employment contract or employment relationship is entitled to. The Directive sets forth important rules regarding the maximum duration of the probationary period, parallel employment, minimum predictability of work, on-demand contracts, transitions between forms of employment, mandatory training, and collective agreements, as well as information obligations and other procedural amendments. Member States must implement this Directive by August 2022.

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New framework for the National Electric System (NES): A new draft for the organisation and operation of the NES is currently under public consultation. The main objective is to ensure the NES is ready for the new challenges imposed by the Portuguese climate neutrality target for 2050. It also implements EU Directives 2019/944 and 2018/2001 which entail major changes to the regulatory framework. The key topics in this draft legislation include (i) the administrative control of NES activities, (ii) network planning, (iii) the introduction of competition mechanisms for NES’s activities, (iv) the participation of consumers in energy production and in the consumer markets, and (v) the improvement and increase of new developments such as repowering, hybridisation and storage, which are key in complying with targets and tackling grid scarcity. The deadline for feedback to the consultation closes soon and new developments are expected in 2022.

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European Green Deal - The “Fit for 55 Package”: On 14 July 2021, the European Commission published its “Fit for 55” package to help the EU meet its climate targets. It encompasses a suite of legislative initiatives across various sectors, including energy, transport and construction, and fundamentally overhauls the EU’s climate policy framework with the aim of putting the EU on track to reach its 2030 climate target of 55%. 2022 should also bring important legislative initiatives at EU level on, among others, emissions trading systems (ETS), energy taxation and efficiency, and renewable energy. These will result in changes to the Portuguese regulatory framework.

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EU sustainable finance package: In April 2021, the European Commission adopted a comprehensive package to support greater investment in sustainable activities. This is an instrumental measure to make Europe climate neutral by 2050. This package comprises (i) a EU Taxonomy Climate Delegated Act, that clarifies which economic activities most contribute to meeting the EU’s environmental objectives, (ii) a proposal for a Corporate Sustainability Reporting Directive, that aims to improve the sustainability information of companies while making it clearer and more accessible to the public, and (iii) six amended Delegated Acts on fiduciary duties, investment matters and product governance rules, with a view to guarantee that financial firms include sustainability in their procedures and their investment advice to clients. These new frameworks are expected to come into force in 2022.

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Implementation of the Directive on Copyright and Related Rights in the Digital Single Market: Directive (EU) 2019/790 of the European Parliament and of the Council, of 17 April 2019, concerns copyright and related rights in the Digital Single Market and amends Directives 96/9/EC and 2001/29/EC. The deadline for the implementation of this Directive was 7 June 2021 and the law proposal is currently awaiting public consultation in Parliament.

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Revised framework for cross-border conversions, mergers and demergers: Directive (EU) 2019/2121 represents a significant step in harmonising company law and cross-border company mobility in the EU.

Substantial changes in Portuguese legislation are expected with the inclusion of the cross-border conversions and demergers frameworks, as well as amendments to the current cross-border mergers framework. The Directive introduces relevant procedures for regulating the frameworks, mainly in relation to shareholders, employees and stakeholders.

Although the deadline for implementation is January 2023, discussions are expected to begin in 2022.

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Implementation of EU Preventive Restructuring Directive: Legislative proposal no. 115/XIV/3, that aims to implement Directive (EU) 2019/1023, was recently submitted to Parliament. Several amendments to the Portuguese Insolvency and Company Recovery Code (Código da Insolvência e da Recuperação de Empresas) are expected, including in the legal framework of special revitalisation (PER) and insolvency proceedings.

Besides the impact that this will have on restructuring and insolvency matters, this proposal will also make changes to the Portuguese Companies Code (Código das Sociedades Comerciais). These concern the inapplicability of certain frameworks during any corporate restructuring proceedings provided in the Portuguese Insolvency and Companies Recovery Code. According to the proposal, the following provisions shall not apply in the context of such corporate restructuring proceedings: (i) the regime applicable to the subcapitalisation scenario, (ii) the requirements for the share capital increase, and, in particular, (iii) for the share capital increase by incorporation of reserves, as well as some provisions regarding the reduction of share capital, mainly the requirements for (iv) the calling of the general assembly, (v) the resolution, and (vi) the protection of creditors regime.

This proposal may be subject to changes as a result of the public discussion and voting in Parliament. We can expect a new framework to be in force in 2022.

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Implementation of the EU Whistleblowing Directive: Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law is due to be implemented by December 2021. The corresponding law proposal no. 91/XIV/2 was recently submitted.

The new framework enhances protection of whistleblowers who report or publicly disclose a breach. Consequently, companies with more than 50 employees will be required to introduce or update their internal reporting channels through which persons with a working relationship to the company can report on breaches.

We expect further developments before the framework comes into force.

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Implementation of the European Electronic Communications Code Directive: Directive (EU) 2018/1972 of the European Parliament and of the Council, of 11 December 2018, aims to review the legal framework applicable to electronic communications. The deadline for the implementation of this Directive was 21 December 2020, the Portuguese Government having approved a draft proposal of law, which is now pending approval in Parliament.

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Portuguese law highlights in 2021

Employment

Employment was a key topic in 2021, with the approval of additional measures related to Covid-19 and the creation of a new framework for teleworking.

The Cyberspace Security Regime

The cyberspace security regime is finally being regulated. and some experimental measures have also been adopted to promote the digital transition.

Reforms in the public sector

Reforms in the public sector, mainly related to the Recovery and Resilience Plan, the territorial management instruments, expropriations and administrative easements, mining, and amendments to the public contracts framework, as well as a new climate framework.

Approval and future implementation of the National Strategy on Anti-Corruption: The Portuguese National Strategy on Anti-Corruption 2020-2024 was approved on 6 April 2021. To implement the new measures the Portuguese Government has proposed amendments to existing legislation (e.g., the Portuguese Criminal Code, Criminal Procedural Code, and the law on criminal liability of public officers). The key topics in the proposed amendments include (i) a clear regulation on whistleblowing and its different consequences depending on the stage of the proceedings, and (ii) the responsibility of companies in corruption crimes, in particular, the relevance of adopting and implementing internal compliance programmes.

This proposal is regarded as one of the Government’s priorities and is currently under Parliamentary scrutiny.

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Amendment to the Portuguese Securities Code: On 12 November 2021, the legislative proposal no. 94/XIV/2 was approved by the Parliament. It aims to revise the Portuguese Securities Code, providing several changes such as: (i) the elimination of any requirements that are additional to the ones set out in EU legislation, (ii) the elimination of the sociedade aberta framework, (iii) the possibility to issue multiple-vote shares, (iv) simplification of the participation and voting framework in general meetings, (v) inclusion of a certificate of legitimation framework, (vi) simplification of takeover bids framework and (vii) simplification of the shareholdings disclosure framework. This proposal also aims to increase the powers of the Portuguese Securities Regulator (Comissão do Mercado de Valores Mobiliários), so that the Regulator may supervise the suitability, qualification requirements of the members of corporate bodies and investigate the origin of funds used to acquire qualifying holdings.

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Additional employment measures related to Covid-19: Employment was one of the main areas of focus for Covid-19 legislation in 2021. The frameworks created in 2020 in response to the pandemic, notably the “simplified furlough scheme” (lay-off simplificado), the “extraordinary incentive to return to normal business activity” (incentivo extraordinário à retoma progressiva de atividade), the “support mechanism for a progressive recovery” (apoio extraordinário à retoma progressiva de atividade), and the “exceptional and transitory work reorganisation regime” (regime excecional e transitório de reorganização do trabalho) were continuously amended. In addition, during 2021, several economic sectors and territory regions went through operational restrictions.

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New framework for teleworking and right to disconnect: Several legislative proposals aimed at creating a new framework for teleworking were recently approved. This framework creates a new right to teleworking for parents with children up to three years old or eight years old in certain conditions, and for informal caregivers. It also deems the employer responsible for ensuring the necessary equipment and systems for the execution of work are available, and ensuring there is interaction with the employee. This framework also introduces the employee’s right to disconnect, for which the employer must abstain from contacting the employee during their resting period, save for situations of force majeure.

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Special regime on Expropriations and Administrative Easements for the Economic and Social Stabilisation Programme: Decree-Law no. 15/2021, of 23 February, established a special regime which aims to streamline the execution of the Economic and Social Stabilisation Programme, by simplifying and speeding up the processing of expropriation and administrative easement procedures that are needed to implement the Programme.

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Amendment to the Legal Framework for Territorial Management Instruments: Decree-Law no. 25/2021, of 19 March, amended the Legal Framework for Territorial Management Instruments (approved by Decree-Law no. 80/2015, dated 14 May). Among others, the amendment grants municipalities the necessary conditions to complete the adoption of the soil classification and qualification rules in municipal or inter-municipal plans, and extends this deadline until 31 December 2022.

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Regulation of the Mining Law with regard to mineral deposits: Decree-Law no. 30/2021, of 7 May, regulates the Mining Law (Law no. 54/2015, of 22 June) with regard to mineral deposits. This Decree-Law aims at ensuring the competitiveness of the extractive sector, establishing the conditions for the award of mining rights at different stages. It also aims at ensuring environmental, economic and social sustainability in the mining activity, notably by creating a mandatory phase of public participation prior to the award of rights to disclosure and use geological resources.

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Special measures and amendment to the Public Contracts Code: Law no. 30/2021, of 21 May, approved special public procurement measures and amended the Public Contracts Code, as well as the Code of Procedure in the Administrative Courts and Decree-Law no. 200/2008, of 9 October, which approves the legal regime applicable to purchasing centres. In terms of the special measures, this Decree-Law introduced a simplified public procurement regime for projects financed or co-financed by European funds. It also introduced measures related to housing and decentralisation, information technology and knowledge, health and social care, the implementation of the Economic and Social Stabilisation Programme and the Recovery and Resilience Plan, fuel management under the Integrated Management System for Rural Fires (SGIFR) and agri-food goods.

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Guidelines for the financial circuit applicable to the Recovery and Resilience Plan: Order no. 193/2021, of 15 September, established the guidelines for the financial circuit applicable to the Recovery and Resilience Plan (RRP). Among other points, it establishes that the funds for the financing of projects on a loan basis approved within the RRP framework are made available to the General Direction of Treasury and Finance, which in turn enters into loan contracts with the direct beneficiaries or intermediaries of the RRP.

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New climate framework: On 5 November 2021, after long discussion, a new climate framework was approved in Parliament. This new framework recognises the existence of a climate emergency and sets out guidelines for future climate policies.

It establishes that the Parliament shall approve, on a five-year basis and within a 30-year horizon, national targets for the reduction of greenhouse gas emissions. These assume that Portugal will reduce – in relation to 2005 values – emissions by at least 55% by 2030, between 65% and 75% by 2040 and at least 90% by 2050 and foresees the possibility of reaching the climate neutrality target, set for 2050 in the 2019 national strategy. It also provides other specific targets, such as the progressive elimination of fossil fuels by 2030, and the full elimination of fossil natural gas in the Portuguese energy system by 2040. Other measures are the prohibition of new hydrocarbon exploration or exploitation concessions in Portuguese territory and, more broadly, the necessity of strategic environmental assessments in any new legislation or large scale public investments.

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Entry into force of Regulation on the prudential requirements of investment firms: On 26 June 2021, Regulation (EU) 2019/2033 came into force in all Member States. This Regulation established new prudential and reporting frameworks for investment firms.

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Creation of Technology Free Zones (TFZs): Decree-Law no. 67/2021, of 30 July, sets out the scheme for, and defines the governance model of the promotion of technology-based innovation through the creation of TFZs. These are test sites, located on site, that enable promoters to test innovative technology, products, services and processes in a safe way, with the support and monitoring of the respective competent authorities.

TFZs are yet to be created by Order in Council, this being part of the investment/reform included in the Portuguese Recovery Plan (digital transition of businesses).

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New cyberspace security framework: Decree-Law no. 65/2021, of 30 July, regulates the legal regime of cyberspace security approved by Law no. 46/2018, of 13 August, which implements Directive (EU) 2016/1148 (Network and Information Security Directive), and reinforces the obligations on cybersecurity certification arising from Regulation (EU) 2019/881 of the European Parliament and of the Council, of 17 April 2019 (Cybersecurity Act). It sets out the security requirements for networks and information systems, and also outlines incident notification requirements.

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