Portugal is a semi-presidential republic, with three branches of government:
The judicial system is divided into civil and administrative courts.
Civil courts have general jurisdiction in civil and criminal matters and all matters not assigned to other courts, and are organised as follows:
Administrative courts settle disputes arising out of administrative and tax matters, and comprise:
Other courts include:
Portugal has a code-based civil law justice system, under which case law is typically resorted to for interpretation purposes.
Decree-Law 138/2014 of 15 September sets forth certain restrictions and mechanisms aimed at preserving strategic assets in relation to foreign direct investments in strategic infrastructure and services, notably those related to energy, communications, transportation, national security and defence, whenever investments are made by entities from outside the European Union/European Economic Area. Foreign investment is only subject to control by the Portuguese government when it meets the following criteria:
If the investor/target and type of investment fall within these criteria, the Minister responsible for the sector related to the relevant strategic asset may propose to the Council of Ministers that the government opposes a transaction whenever the acquisition of control poses a real and substantial threat to national security or to the security of supply of basic services considered fundamental to the country.
The Minister responsible for the sector related to the relevant strategic asset has 30 days from the date of the transaction, or the date the transaction becomes known, to open an investigation to determine the risk that such acquisition may present to national security or to the security of supply of basic services considered fundamental to the country. If they determine that such a risk is present, the Minister must immediately notify the Minister of Foreign Affairs, the Minister of Defence and the Minister of Homeland Security.
During the investigation, the person/entity that acquired the strategic assets is obliged to provide all information and documentation requested by the Minister. The Minister may enact a ministerial order listing the documents and information that may be required in an investigation.
When all documents and information have been received by the Minister that determined the investigation, the government has 60 days to oppose the transaction based on a proposal of the Minister responsible for the sector related to the strategic asset. Opposition to a transaction needs to be substantiated and grounded.
If the government does not make a decision within 60 days, the transaction is deemed approved.
Foreign investors who intend to acquire a strategic asset may request prior confirmation from the Minister responsible for the sector related to the strategic asset that the transaction will not be opposed by the Portuguese government. This request must be accompanied by a description of the terms and conditions of the transaction.
Apart from the trigger, the process and review are relatively similar to an investigation initiated by the government. Any Minister responsible for a sector related to a strategic asset may enact a ministerial order listing the documents and information that may be required in the case of voluntary prior assessment.
The government has 30 days to decide; if it does not decide within this timeframe, the prospective transaction is deemed to be unopposed.
Transactions subject to opposition by the government are null and void.
In certain cases, the authorities may impose certain conditions or otherwise require assurance regarding the following:
Any decision of opposition to a transaction is subject to appeal. If applicable, injunctions are available to the foreign investors or their counterparties under the law of administrative process.
Most companies in Portugal are limited liability companies, of which there are two main types:
The choice between SAs and Ldas typically depends on the following aspects, amongst others:
Ldas can be incorporated by a single shareholder (under specific requirements) or by two or more shareholders, and the respective share capital is divided into “quotas”. Ldas are not subject to any minimum share capital requirements. All quotas require registration with the Portuguese Commercial Registry Office.
SAs can be incorporated either by a single shareholder (provided the shareholder is a corporate entity) or by a minimum of five shareholders, with the respective share capital being represented by shares. The minimum share capital of an SA is EUR50,000 and shares are subject to registration with the company itself. SAs require the appointment of a statutory auditor.
The quotas in an Lda and the shares in an SA are used as a measure to determine the current or potential rights (such as voting or dividends) and obligations of the shareholders.
In terms of liability, each shareholder is liable towards the company for the amount of subscribed share capital, whereas only the company’s assets are liable for the company’s debts.
In terms of the transferability of shareholdings, Ldas are typically less flexible than SAs. Other than transfers to spouses, ascendants and descendants (unless otherwise provided in the respective by-laws), all transfers of quotas require the company’s consent. Conversely, in SAs all share transfers are typically free, with restrictions on transferability only being admitted in specific cases under law. They must be included in the by-laws, respective share certificates and the company’s share ledger in order to be effective against third parties.
Typically, Ldas are more suitable for start-up companies or family companies, as they have reduced operational costs, while SAs are more commonly used for mid-sized/larger companies and joint ventures.
The first step consists of applying to the National Companies Registrar for an admissibility certificate authorising the company’s name (Certificado de Admissibilidade de Firma), which requires an indication of the registered office, share capital and corporate purpose for such effect. The company name may also be obtained from a pre-approved list of names, which circumvents the Registrar’s current stringent authorisation procedure but is subject to an online registration procedure.
After obtaining the certificate, the company’s incorporation deed needs to be provided in order to register the company with the Portuguese Commercial Registry, through a notarial deed or private contract executed by the shareholders or legal representatives, containing the following information:
Despite efforts to reduce the bureaucracy, the process remains time-consuming: investors should expect approximately ten days for the registration to be concluded.
Alternatively, investors may resort to an expedited 24-hour incorporation procedure, with pre-approved template documents, although these usually require subsequent time-consuming adjustments of the by-laws and registration thereof with the Portuguese Commercial Registry Office, due to insufficient content and inadequacy for the purpose or structure envisaged by the investors.
The following acts are subject to mandatory registration before the Commercial Registry Offices:
Companies are required to have at least one Annual General Meeting for approval of the annual accounts, to be held within three months of the accounts’ closing date of the previous year.
Companies are also required to register the respective ultimate beneficial owner(s).
Other reporting obligations may apply, depending on the shareholder structure of the company and its respective activity/corporate purpose.
The main governing body for Ldas is the shareholders' meeting (Assembleia Geral), aggregating all shareholders. The shareholders' meeting is responsible for appointing the management body, which may be comprised of one or more managers (gerentes), who undertake to pursue the company’s corporate interest and follow the resolutions of the shareholders. In Ldas, the appointment of a supervisory board/auditor is optional.
In SAs, the board of directors (Conselho de Administração) is the main corporate body, and is composed of directors appointed by the shareholders' meeting. SAs are mandatorily supervised by a statutory supervisory board or a sole auditor. SAs may have sole directors if the share capital does not exceed EUR200,000; otherwise the SA will require a minimum of two directors.
Despite being limited liability companies, shareholders therein may still be held liable for damages (under applicable law or if foreseen in the by-laws) whenever they do not pursue the company’s best interest. Moreover, certain resolutions focusing on promoting private benefits for certain shareholder(s) may be considered void.
Directors or managers may also be held liable for damages caused to the company, the shareholders and/or creditors due to failure to comply with their obligations to act with skill, care, diligence and loyalty in the pursuit of the company’s best interests.
Although it is not directly contained under Portuguese law, the concept of piercing the corporate veil has been raised before Portuguese courts, but the courts remain extremely cautious in the application of the concept due to its subsidiary nature.
The employment relationship is ruled by law, collective bargaining agreements, employment agreements and labour practices that are not contrary to the principle of good faith.
The most important sources of labour legislation are the Portuguese Labour Code, the Labour Code Regulation and the Legal Framework for the promotion of Safety and Health at Work.
Case law decisions are not legally binding but do play a relevant part within judicial procedures.
General Requirements Applicable to Employment Contracts
Generically, labour contracts in Portugal have no special requirements, except for specific categories of contracts, namely term contracts or employment contracts under telework schemes, which must be concluded in a written form.
There are two basic types of labour contracts:
Permanent employment agreements are not required to be in writing, although parties do typically enter into written agreements.
Fixed-term Employment Contracts
Fixed-term employment contracts can only be used to satisfy a company's temporary needs, and only for as long as necessary to meet those needs.
Fixed-term contracts may also be based on other limited reasons – eg, for the hiring of a person who has been unemployed for a very long time, for the launch of a new business activity or new establishment, or for a company employing fewer than 250 employees.
Duration of Employment Contracts
Fixed-term employment contracts cannot exceed two years. They can be renewed up to three times but the total duration of the renewals cannot exceed the initial duration of the employment contract.
Employment Contracts Under Telework Schemes
The implementation of a telework scheme also depends on a written agreement, which may be included in the initial employment contract or in a separate agreement.
Duty of Information
Regardless of the form of employment contract, the employer must inform the employee, in writing, of the material terms of the employment contract and the duties for which the employee has been hired, within 60 days of work beginning.
Maximum Working Time
Regular working hours may not exceed eight hours per day and 40 hours per week.
Maximum working hours may be determined on average within a reference period, as follows:
Exemption From Work Schedule
The following groups of employees may be exempt from the working hour requirements by written agreement:
Exempt employees are not subject to the normal working hour limits and can agree any working hour schedule with the employer. Such exemption does not affect these employees' entitlement to daily rest, weekly rest days or public holidays.
Overtime worked by non-exempt employees during normal working days entitles the employee to the following additional payments:
Overtime worked during a weekly rest day or on a public holiday entitles the employee to an additional 50% of their regular rate of pay for each overtime hour or fraction thereof. Overtime rendered on mandatory weekly rest days entitles the employee to one day of paid compensatory rest, to be taken on one of the three business days following the day on which overtime was rendered.
Employment contracts can terminate due to the following reasons:
Labour law prohibits employers from dismissing employees except for disciplinary "just cause", unsuitability, collective dismissal or, in some limited circumstances, extinction of the work position.
Employees may not be dismissed simply by giving the employee notice (or for discriminatory reasons, etc); termination may only occur through a mutual termination agreement between the parties.
Disciplinary "just cause" is defined as a wilful conduct by the employee which, owing to its gravity and the effect of such conduct, makes continuation of the employment relationship immediately and practically impossible.
Collective Redundancy – Grounds
A collective redundancy is understood as the termination of employment contracts by the employer, simultaneously or successively over a three-month period, affecting at least two or five employees, depending on whether the company has fewer or more than 50 employees, and whenever such termination is due to the closing of one or various sectors or equivalent structures or a reduction of personnel due to market, structural or technological reasons.
Collective Redundancy – Procedure
Collective redundancy is initiated with an announcement, in writing, to the Workers' Committee or, in its absence, the Inter-union or Union Committees or, in the absence of any organised structure of worker representation, to each of the employees affected by the dismissal. In this latter case, the employees may appoint a representative committee of no more than three or five members within five working days of receiving such communication, depending on whether the redundancy affects up to five or more employees.
On the date of the announcement, the employer must also send a copy to the relevant service of the Labour Ministry, along with all relevant documents.
Following the receipt of the above-mentioned announcement, the employer and the employees must enter the information and negotiation phase, with the purpose of reaching an agreement on the scale and effects of the measures being adopted and on other measures that reduce the number of workers being made redundant.
Having reached an agreement, or in the absence thereof, the employer must do the following, at least 15 days after the announcement of the dismissal:
The final decision must be issued with a notice regarding the following anticipated dates of termination:
The amount of severance pay depends on each employee's hiring date:
In fixed-term employment contracts, severance amounts to 18 days of base salary and seniority payments for each year of service and fraction thereof.
Employees are guaranteed the right to:
Employers are prohibited from:
Trade unions have the right to do the following:
Trade union representatives are covered by some protective rules concerning work hours, absences, relocation, suspension and dismissal for cause, to carry out their duties.
Employees also have the right to set up works councils, which are entitled to:
The protection provided to workers' representatives is the same as for trade union representatives.
An individual will be considered resident in Portugal if they spend more than 183 days in Portugal in any given 365-day period, or if they have their main and habitual residence in Portugal.
For Portuguese resident taxpayers, the Portuguese tax regime provides for a categorisation of the income sources, with employment income being taxed under the Category A rules at progressive rates, as follows:
Companies are required to withhold tax at source on employment income.
Portuguese-sourced employment income derived by non-residents will be taxed in Portugal at a flat rate of 25%, when this is permitted by the relevant treaties.
Employment Income Under the Non-habitual Resident Regime
Portugal has introduced a special tax regime for taxpayers that have not been resident in Portugal for the previous five years and become resident in Portugal. Once granted, the non-habitual resident (NHR) regime will last for ten years, and allows taxpayers to obtain a host of different tax benefits – namely exemptions on certain types of foreign income. The following applies to employment income:
Social Security Charges
Social security is payable on employment income at the following rates:
Social security is levied on the base salary and a number of other regular payments. However, it should be noted that certain bonus payments, stock option plans and other forms of variable incentives for employees may not currently be subject to social security contributions, provided that all relevant conditions are met.
Portugal has enacted a typical corporate income tax system.
Resident companies and non-resident companies maintaining a permanent establishment (PE) in Portugal are subject to corporate income tax (IRC) and a state surcharge (derrama estadual). For resident companies, the IRC is levied on worldwide income, including capital gains. Municipalities may also levy a municipal surcharge (derrama municipal) on the annual taxable income of corporations.
A company is deemed resident in Portugal when its legal seat or place of effective management is in Portugal.
The standard IRC rate is 21%. As mentioned, a state surcharge may apply, at the following progressive tax rates:
IRC is charged on net taxable income, consisting of business/trading income, passive income and capital gains. Only realised income and capital gains and losses are relevant for the computation of taxable income, although there are certain exceptions to this rule.
A foreign tax credit for tax paid abroad is usually available.
The IRC Code also provides for a simplified tax regime for companies with taxable income of up to EUR200,000, whereby the taxable income is simply calculated using a percentage of the annual turnover.
Participation Exemption Regime
Dividends received from qualified resident and non-resident subsidiaries and capital gains realised from the transfer of a participation in qualified resident and non-resident subsidiaries are exempt from IRC. To claim the benefit, the following requirements must be met:
Withholding Tax Rates
Portugal imposes withholding tax (WHT) on payments to non-Portuguese companies or individuals. The rates thereof are reduced when the beneficiary owner of the income is resident in a country or territory with which Portugal has entered into a double tax treaty.
The non-treaty rate on income paid to non-Portuguese beneficiaries is typically 25% or 35%.
However, the following special rules relating to WHT should be noted.
Dividends paid by a Portuguese company to a non-resident holding company will not attract WHT, provided that all the following criteria are met:
Capital gains on the sale of shares and qualifying securities of Portuguese entities are exempt from tax when derived by qualifying non-resident companies that do not hold the qualifying assets through a PE in Portugal. To qualify for the capital gains exemption, the non-resident company may not:
As with the exemption for dividends:
The regime does not apply to a sale of shares if, at any given time in the year prior to the sale, the company issuing the shares derives more than 50% of its value from real estate located in Portugal, unless the immovable property is used for carrying out an agricultural, industrial or commercial activity.
Interest and royalties
Following the transposition to Portuguese legislation of the Interest and Royalties Directive (IRD), interest or royalty payments to companies resident in an EU member state or Switzerland are exempt from tax on the receipt of interest or royalties if the requirements set forth in the IRD are fulfilled.
This exemption may be denied if the non-resident company does not have up-to-date beneficial ownership registration, or if it reflects an arrangement or series of arrangements that have been put in place for the purposes of obtaining a tax advantage that defeats the object and purpose of the elimination of double taxation.
Income tax treaties
At the time of writing, Portugal has 78 treaties to avoid double taxation in force and effect, with at least two new treaties currently being negotiated (Australia and Mauritius).
Being part of the EU, Portugal has transposed the EU VAT Directive and the various regulations relating to the EU’s common VAT system.
The Portuguese VAT rates are:
Non-Portuguese resident businesses with local operations that require a local VAT registration will have to comply with Portuguese rules on accounting, the issuance of invoices, rates, record keeping, filings, etc.
For many years but particularly from 2014 onwards, Portugal has been making significant attempts to introduce a very competitive system of tax credits and incentives. Whilst it is not possible to go into detail on these special tax regimes, the following should be highlighted:
It is important to note that the Portuguese patent box regime will become even more attractive under proposed legislation that should be enacted from 1 January 2023. In simplified terms, the current regime foresees that only 50% of the profits on income related to the exploration or disposal of patents, industrial designs or software is subject to corporate income tax. If the proposed legislation is enacted, only 15% of the profit will be subject to tax.
The updated patent box, together with the tax incentive scheme for business R&D (SIFIDE) tax credits and the financial incentives regime relating to R&D investment, make Portugal one of the most attractive countries in the world from which to carry out R&D activities.
A group consolidation regime is available to affiliated companies when the parent company is a Portuguese tax resident or a tax resident in another EU member state. In order for group consolidation to apply, there must be a dominant company holding at least 75% of the share capital of the subsidiaries, directly or indirectly, and that holding must allow the dominant company to own at least 50% of the voting rights in the subsidiaries.
Once that threshold is met, certain additional criteria must be fulfilled, as follows:
Where group consolidation applies, the tax group is not a taxpayer. Rather, each of the companies within the group remains an autonomous taxpayer. Transactions between group companies are not disregarded for tax purposes. The taxable income of the group derives from the aggregation of the taxable income of all the group companies, allowing losses in one company to set-off the income of another company of the group.
Any tax losses incurred by a group member company prior to entering the group are ringfenced and are available to set-off the taxable income of that company only.
The group consolidation allows the interest expense limitation rules to be applied on a group-wide basis.
Portugal does not have thin capitalisation rules.
Portugal imposes an interest expense limitation rule, which was amended with the transposition of the Anti-Tax Avoidance Directive (ATAD).
Companies may only deduct net financing expenses up to the higher of:
This interest limitation rule applies to Portuguese tax resident companies and non-resident companies that maintain a PE in Portugal. Financing expenses that exceed the limit are not deductible, but may be carried forward and claimed as a deduction in the following five fiscal years if no limitation exists in any of the carry-forward years.
The law provides several exclusions from the interest deduction limitation rule, covering companies that are subject to the supervision of the Portuguese Central Bank or the Portuguese Insurance and Pension Fund Supervisory Authority, including securitisation vehicles. Portuguese branches of other EU financial companies or insurance companies that are resident in a member state of the EU are also covered.
Transfer pricing rules apply, with OECD Guidelines and Commentary being accepted as a source of interpretation and guidance. The Portuguese transfer pricing legislation does not significantly diverge from the OECD rules.
Portugal has several longstanding anti-avoidance rules, which have been modified over the years, more recently via the transposition of the ATAD. In this respect, Portugal is a traditional European country, with all the following anti-avoidance rules in place:
Similar to the European Merger Control Regulation, the Portuguese Competition Act (Law 19/2012 of 8 May 2012) considers the merger of previously independent undertakings and the acquisition of control of share capital or parts of the assets of other undertakings, including the creation of a joint venture that would perform on a lasting basis as an autonomous economic entity, to be concentration operations.
Such concentrations are subject to merger control review by the Portuguese Competition Authority (PCA) if any of the following conditions/thresholds are met:
Further to the notification being presented by the filing parties, the PCA has 30 business days to issue its decision, or 90 business days for cases requiring an in-depth investigation. These time limits can be suspended by the PCA in several circumstances (eg, if additional information is requested from the parties or if commitments are offered).
Parties are obliged to suspend the implementation of the concentration until the PCA has issued a clearance decision. Breach of this standstill obligation entails a fine of no more than 10% of the turnover of the undertaking in breach, with the Portuguese Competition Act also establishing that any act or transaction implementing the concentration prior to clearance from the PCA is unenforceable.
However, public takeover bids can be implemented, provided that, in general, the acquirer does not exercise the voting rights in the target entity until clearance is obtained.
Identical to the Treaty on the Function of the European Union (TFEU), the Portuguese Competition Act prohibits agreements or concerted practices that restrict competition, including cartels – ie, agreements or concerted practices between competitors to co-ordinate in the market or to affect the relevant parameters of competition by, inter alia, fixing or co-ordinating the sale or purchase prices or any other transaction conditions, including intellectual property rights, by attributing production or sale quotas, market or client sharing (including bid rigging), by import or export restrictions and through anti-competitive actions against other competitors.
The Portuguese Competition Act is applicable to competition law enforcement, specifically in terms of prohibited practices on the Portuguese territory or whenever these practices have or may have an effect there.
In Portugal, cartels are administrative (not criminal) offences sanctioned with fines not exceeding 10% of the offending undertaking's turnover in Portugal in the year preceding the decision.
Individuals can also be liable in antitrust offences (ie, board members, as well as any individuals responsible for the management or supervision of the areas of activity where the breach occurred). The fine in question cannot exceed 10% of the individual's annual income deriving from the exercise of their functions in the undertaking concerned.
To the extent that the antitrust offence has occurred during or as a result of those processes, a ban of up to two years may be imposed on the right to take part in tendering processes for public works contracts, public service concessions, the leasing or acquisition of movable assets or the acquisition of services or procedures involving the award of licences or authorisations by public entities.
Undertakings or individuals connected to the cartel may apply for total immunity or a fine reduction if they provide valuable information about the cartel, with the Portuguese Competition Act also establishing the possibility of cases being settled prior to the final decision being issued by the PCA.
Mirroring the TFEU, the Portuguese Competition Act also prohibits undertakings in a position of dominance from abusing such position.
Abusive conduct includes:
Differing from the TFEU, the Portuguese Competition Act also specifically prohibits the abuse of a situation of economic dependence. Such specific infringement may include any of the types of conduct previously mentioned as being potentially abusive under the abuse of dominance rules, as well as the full or partial rupture of an established commercial relationship, in view of past commercial or trade practices in the relevant market and contractual conditions.
Regarding anti-competitive agreements and concerted practices, the Portuguese Competition Act is applicable to competition law enforcement, including on breaches deriving from the above-mentioned unilateral conducts that might occur on the Portuguese territory or whenever these practices have or may have an effect there.
The patent is the industrial property right that protects inventions. An invention is a technical solution to solve a specific technical problem, including products, processes and new processes for obtaining already known products and substances.
The primary legislation governing patents in Portugal is the Industrial Property Code (IPC).
Length of Protection
The patent has a duration of 20 years from the date of application, subject to the payment of annuities.
Nevertheless, it is possible to request a Supplementary Protection Certificate (SPC), which can extend the term of a medicinal or plant protection patent by up to five years, with the possibility of a further six-month extension in some circumstances.
The protection granted by the National Registered Patent is limited to the Portuguese territory.
National applications are made (in person, via postal service or online) through the Portuguese Institute of Industrial Property (Instituto Nacional da Propriedade Industrial – INPI).
Applying for a patent takes at least 21 months.
To apply for the patent the following requirements should be considered:
It is possible to submit a Definitive Patent Application or a Provisional Patent Application, which is often used to ensure the priority of a patent application for someone who does not yet have all the requisite elements to file a Definitive Application.
The steps of the application process are as follows:
If granted, a patent gives its holder an exclusive right of exploitation of the invention in the Portuguese territory. In this way, the patent holder has the right to prevent third parties from manufacturing, offering, storing, marketing or using the patented product, or importing or possessing it, for any of the mentioned purposes, without the holder's consent.
In the case of patent infringement, the patent holders benefit from several enforcement proceedings, namely:
The remedies set out in the IPC are mostly in line with Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004, on the enforcement of intellectual property rights. The legal remedies available against patent infringement are:
A trade mark is a sign capable of identifying and distinguishing the goods or services of a company from those of another company. It may consist of a sign or a combination of signs capable of being represented by words (including personal names), designs, letters, numbers, sounds or the shape of a product or its packaging.
Trade mark protection is acquired through registration.
The primary legislation governing trade marks in Portugal is the IPC.
Length of Protection
Trade mark registration lasts for ten years from the application date and is indefinitely renewable for further ten-year periods, subject to the payment of fees. This renewal may be requested within the six months preceding the expiration date, or during a grace period of six months following it, upon the payment of late renewal fees. The registration of a trade mark becomes invalid if it is not renewed. However, the holder may request the revalidation within one year from the date of the publication of the notice of expiry in the Industrial Property Bulletin, subject to the payment of a fee.
Portugal has a first-to-file system, meaning that registration is granted to whomever files the application first.
On average, the registration of a trade mark in Portugal takes four months.
The application is filed (online or through the postal service) at the INPI.
The steps of the application process are as follows:
Registration gives holders the right to use the trade mark during trade. If a third party uses an identical or similar trade mark to designate identical or similar goods or services in the marketplace without authorisation, the trade mark holders benefits from several enforcement proceedings, including the following:
The remedies set out in the IPC are mostly in line with Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004, on the enforcement of intellectual property rights. The legal remedies available against trade mark infringement are:
Designs are defined as the appearance of the whole or part of a product resulting from the features of the lines, contours, colours, shape, texture or materials of the product itself or its ornamentation. Its technical or functional characteristics are not considered.
Designs are eligible for protection if they fulfil these two requirements, among others:
A registered design is also eligible for protection under copyright law from the date on which the design was created, or defined, in any form.
The main legislation governing trade marks in Portugal is the IPC.
Length of Protection
The protection period is five years following the application date, and can be renewed for consecutive equal periods of time up to a maximum of 25 years.
The rights granted by the INPI are only valid in Portugal.
The steps of the application process are as follows;
Design registration entitles the holders to use the design and to prevent third parties from using it without consent. This includes, in particular, the manufacture, offer, placing on the market, import, export or use of a product in which the design has been incorporated, or to which it has been applied, as well as the storage of this product for the same purposes.
In cases of infringement, the design holders benefit from several enforcement proceedings, including:
The remedies set out in the IPC are mostly in line with Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004, on the enforcement of IP rights. The legal remedies available against design infringement are:
According to Portuguese law, a work must be an original literary, artistic or scientific creation, expressed in any way or form, known at present or that may be created in the future in order to be protected by copyright.
Portuguese copyright law is governed by the Portuguese Copyright and Related Rights Code.
Length of Protection
As a rule, copyright lasts 70 years after the author’s death, even if the original work was published or came up after its author’s death.
When the validity of the copyright expires, the work enters the public domain and can be used freely.
Protection of copyright is automatic and acquired immediately after the work's completion. The registration of copyright is merely optional, having a declarative effect, leading to the presumption that the registered right-holder is entitled to the relevant right.
The registration can be made at the Inspeção-Geral das Atividades Culturais (IGAC).
The legal protection conferred by copyright includes:
In cases of infringement, the copyright holders benefit from several enforcement proceedings, including the following:
The remedies set out in the IPC are mostly in line with Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004, on the enforcement of intellectual property rights. The legal remedies available against copyright infringement are:
Other diplomas contain specific remedies and supervision on the enforcement of copyrights, such as Law 82/2021 of 30 November, which establishes the procedures for the monitoring, control, removal and prevention of access in the digital environment to content protected by copyright and related rights, and the administrative procedure to be applied in the event of illegal disclosure of content protected by copyright and related rights.
The national legislation governing software is Decree-Law 252/94 of 10 October, which transposed into national law Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, repealed by Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs.
Computer programs (software) are protected as literary works as long as they fall within the legal criteria of being “creative”.
In Portugal, the legal protection of computer programs lasts for 70 years.
Software registration is not mandatory but it grants the registrant a presumption of ownership of the right over the work.
The registration of software may be carried out at the Associação Portuguesa de Software (ASSOFT) or at IGAC.
Databases are protected under Law 122/2000 of 4 July, which implemented Directive 96/9/EC on the legal protection of databases.
A database is defined as a collection of independent works, data or other materials that is arranged in a systematic or methodical way and is individually accessible by electronic or other means.
On the one hand, databases that constitute intellectual creations by the selection or arrangement of their contents are protected by copyright.
The right over the database granted to the intellectual creator expires 70 years after their death.
Database registration is not mandatory, but it grants the registrant a presumption of ownership of the right over the work. The registration of databases may be carried out at IGAC.
On the other hand, a sui generis legal protection is available to makers of databases, provided that there has been substantial financial, material or human investment in the obtaining, verification or presentation of the contents.
If the requirements for the sui generis protection are verified, a database is granted automatic protection for 15 years, starting either from the creation date or from when the database was first made publicly available.
Trade secrets are governed by the IPC, which transposed into the national legal system Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.
"Trade secrets" refers to information that meets the following cumulative three conditions:
The protection extends to products whose design, characteristics, functioning, production process or commercialisation significantly benefit from trade secrets unlawfully obtained, used or disclosed.
Trade secrets are protected without registration.
They can be protected for an unlimited period of time, as long as the legal elements required for trade secret protection are fulfilled.
The legal framework for personal data protection in Portugal derives from the application of the following:
Several other dispersed diplomas contain specific data protection rules, such as:
Portugal has also adopted international instruments relevant to data protection, including:
The GDPR applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the European Union, regardless of whether the processing takes place in the EU or not.
The GDPR applies to the processing of personal data of data subjects who are in the EU by a controller or processor that is not established in the EU, where the processing activities are related to:
Portuguese Law 58/2019 of 8 August is also applicable to processing carried out outside Portugal when:
However, on 3 September 2019, the Portuguese Data Protection Authority (Comissão Nacional de Proteção de Dados – CNPD) issued a Decision (494/2019) declaring several provisions of Law 58/2019 of 8 August unenforceable, namely Article 2(2), which established the territorial scope of the Law.
The CNPD considered that the rule provided by Portuguese law that national jurisdiction applies to data processing “carried out within the scope of an enterprise established in the national territory” jeopardised the application of procedural rules and the distribution of powers between supervisory authorities, where cross-border processing is concerned.
In fact, the GDPR introduced the so-called "one-stop shop" mechanism, which ensures the possibility of remaining in contact with a sole supervisory authority in cases of processing common personal data in several countries. The competent Data Protection Authority is the one of the EU member state in which the main establishment is located.
However, under Law 58/2019, the CNPD would have jurisdiction over the data processing that a processor carries out in Portugal, regardless of whether or not its main establishment is in another member state of the EU.
For similar reasons, the rule stated in subparagraph b) of article 2(2) also compromises the application of the one-stop shop mechanism provided for in Article 56 of the GDPR.
Therefore, to ensure the full effectiveness of EU law, particularly the provisions of Articles 56 and 3(3) of the GDPR, the CNPD disregarded Article 2(2) of Law 58/2019 as it considers it to be incompatible with the provisions therein (the courts have not yet ruled on this matter).
The agency in charge of enforcing data protection rules in Portugal is the CNPD, an independent administrative body with powers of authority throughout the national territory.
Law 58/2019 appoints the CNPD as the Portuguese supervisory authority, giving it the following powers (besides the provisions established in the GDPR):
The following legal reforms are expected in the tax field.
Following the COVID-19 pandemic, a new telework regime and new rules on the duty to abstain from contact were recently approved by the Portuguese government and are already in force. Since the new legal framework for remote work has raised some doubts, some new regulation on this matter is expected.
A change to the Portuguese Competition Act is still expected, which would result from the anticipated incorporation into Portuguese law of Directive 1/2019 of the European Parliament and of the Council (known as the ECN+ Directive).
A reinforcement of the PCA’s powers is expected, not only at the level of its investigation tools (eg, enhanced access to evidence in digital format) and range of fines, but also derived from the increment of the co-operation level among all EU competition authorities (the European Commission and the competition authorities of the EU member states).
Data Protection and IP
The following reforms are expected: