The New Data Protection Regulation in Portugal

The New Data Protection Regulation in Portugal

The General Data Protection Regulation (RGPD) entered into force on May 25, 2018 and replaces the current data protection directive and law. This regulation was approved by the European Union and enforces the rules on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and sets new rules and procedures from a technological point of view.

What are the main aspects of this Regulation?

In recent months, much has been said in the media and in digital networks of this new regulation. But after all, what are its main aspects?

RGPD imposes on the companies the obligation to inform about the legal basis for the processing of data, period of retention of personal data and its transfer. Thus, companies must inform their clients of all their rights, namely, the client should be informed of the reason why the company needs the personal data of the customer, the reason for which the data is processed, the time period by which will be kept and who will be the recipient.

Companies are required to obtain the express consent of natural persons for the processing of personal data. The lack of response is not worth as authorization, consent must be by express statement or other unequivocal act.

On the other hand, consent for the processing of personal data can not be presumed nor can pre-selected options be used on internet sites.

As regards minors, the company must also check the age of the person in order to obtain parental consent, as the case may be.

What are the rights of citizens?

Right away, citizens have the right to know all their personal data that the company obtained and what type of use. Citizens also have the right to request companies to have their personal data not subject to certain processing or uses. They may also request that your information be updated or corrected or deleted.

As for direct marketing and portability, citizens have the right to opt out of receiving direct marketing that uses their personal data; or instead, citizens are still entitled to portability, that is, they can request that their information be passed on to another organization or competitor.

What are the situations which require additional attention?

Enterprises have to be extra careful when processing personal data relate to automated rights and decisions, information on health, race, sexual orientation, religion and political beliefs as they fall within the concept of sensitive data as defined by the Regulation. Depending on the size and context of these specific data processing may be required to appoint a Data Protection Officer.

If you do not comply with the RGPD, what happens?

In case of non-compliance in RGPD, it provides for the imposition of fines in very high amounts. Let’s see.

In the less serious cases of breach of the Regulation, the fine may be worth up to EUR 10 million or 2% of the annual worldwide turnover, whichever is the greater. In more severe cases, the fine may have a value up to 20 million or 4% of the annual turnover worldwide, whichever is higher.

After all, what should I do to comply with the new RGPD?

To comply with the new Data Protection Regulation, companies should establish measures of physical and digital security to ensure that all data and system are secure. That is, companies should demonstrate that there is concern and effective action to protect the personal data of citizens.

Rollback of Tax Debts and Social security contributions

Rollback of Tax Debts and Social security contributions

The General Tax Law, in its article 24, establishes a system of subsidiary liability of the holders of organs of the administration of legal persons, even if only in fact, by the fiscal debts and contributions to the Social Security. Such responsibility has been widely attributed by the Tax Administration and Social Security without often respecting the law and citizens’ rights, often seeing their property and income illegally seized. Here are some general aspects of this legal regime.

Who can be held responsible or reversed?

Are covered by this liability, administrators, directors, managers and other persons exercising, even if only as a matter of fact, administration or management functions in legal persons and similar fiscal ones, as for example, cooperatives and associations.

The mere right management of society (the record as a Manager with the commercial registry) is not enough for the secondary liability of managers for debts to the State for contributions and taxes. If the Manager does not exercise effectively these functions of Manager, means that they don’t have the management (or direction) of society. In this case, the Manager does not control the activity of the company, i.e. does not contact with the suppliers, not decide who pays and how much you pay, don’t hire or fire workers.In short, the Manager does not control the life and the destiny of society. Evidence of de facto management usually involves the presentation of documents or witnesses, demonstrating clearly the manager controls the life of society.

What types of debts that can be reversed?

Can be rolled back tax debts and Social security contributions:

• tax debts incurred through which has been found in the period of Office of the charge or whose legal term of payment or delivery is over after this;

• Tax debts whose legal term of payment or delivery has ended the period of exercise of power.

What are the assumptions of reversal?

The reversal against the subsidiary officers (managers, administrators, etc.) can only be triggered after several previous procedures. Firstly, the tax administration must ascertain whether or not the collateral of the original debtor (company) is sufficient to pay the debt in full.

Only after the tax administration has established that the original debtor does not have sufficient assets to pay the tax debt, must verify with the competent authorities, in particular the competent Commercial Registry with a view to obtaining the identification of the subsidiaries, namely, at the date of occurrence of the events generating subsidiary liability.

What are the Reverted Rights?

Anyone responsible for the tax debt has the right to be heard, in writing, prior to the reversal, even in cases of legal presumption of responsibility.

When the reverted person exercises his right to be heard, the tax authorities are obliged to decide on the arguments or facts presented, in particular those that refer to the non-exercise of the administration or management at the time of the facts, either by renouncing it or by appointment of new management, of which they do not appear.

The Tax Administration must also carry out a careful analysis on whether the taxes that are owed have already been prescribed, in view of the law applicable to the specific case, namely the new limitation period provided for in article 48 of the General Tax Law. Only then will a decision be issued ordering the reversal of the debt against all those in charge.

What are the limits to Reversal of Tax Dividends?

In order for the debt to be reversed against the manager as a subsidiary debtor, it is necessary that the collateral of the principal debtor and the jointly responsible debtors is not sufficient and that the Fiscal Administration proves the de facto exercise of the management, of the legal presumption regarding the fault for the insufficiency of the social patrimony.

In situations where the manager performs his / her duties and during that fiscal year the tax event is formed or the payment period starts, but before the deadline expires, the manager ceases his / her functions (for example, resignation to management), the Tax Administration has to prove that the assets of the company have become insufficient to satisfy the debt due to the manager.

If it is during the exercise of the managerial post that the term for the payment of the tax is exhausted, the manager has to prove that the lack of payment of the tax debt is not his responsibility.

In summary, when managers and directors or managers of companies or other similar legal entities (associations, cooperatives, etc.) are notified by the tax authorities to exercise their right to pre-hear the reversal, they must immediately verify all circumstances and facts that may be invoked for their defense. To this end, it is recommended to consult and follow up with a lawyer to better defend their rights.

Contract: Repair Warranty

Contract: Repair Warranty

Contract Law

With the development of construction activity and real estate in Portugal in recent years, often problems arise with the quality of work performed. We will focus on some important aspects of this problem.

In the contract a person or entity (contractor) has the duty to another person or entity (owner of work) to perform a certain work, with payment of a price. The contracts cover all types of building works as well as manual work, such as the arrangement of a motor vehicle or a washing machine.

What can be considered as a default?

In Portugal, the law protects the owner in what is considered to be defects that the contractor is responsible for.
The owner has the benefit of assuming the contractor’s fault, including acts carried out by their representatives, workers and employees. To remove this presumption of guilt, the contractor will have to prove that he did nothing to cause the defect, that he performed the work in accordance with the construction rules and according to what was negotiated with the owner. Only then will the contractor be liable for the defect of the work.

The contractor will have to prove that the defect in the work was due, for example, to completely abnormal climacteric phenomena (for example torrential rains, unusual winds, earthquakes) or acts done by people who integrated into the contract team (for example, a neighbor who rises and walks on the roof of a work and of a tile) or simply the defect itself is justified by the time deterioration of the materials (for example, the color paint of the walls change over the years when exposed to the south). Otherwise, the contractor will always be responsible for the defect.

Accept or refuse the work, which should make the owner?

Once the work is finished, the owner must check very carefully if the work is well executed. In case of more complicated works, the owner or contractor has the right to hire one or more experts for this verification, paying the expert’s report.

If the work is defective, the owner has the right to refuse payment and demand that the defect be repaired. Alternatively, the owner can accept the work with limitation, that is, the owner receives the work on condition that the contractor is responsible for repairing the defect within a set period.

If the developer does not verify the work, it is considered that it accepts the work without limitation, that is, that the work is correct.

What is the warranty period for the contract?

In order to activate the guarantee of the contract it is necessary to pay attention to several deadlines that are coordinated among themselves.

As for the works on goods in general (car mechanics, furniture cabinet, etc.), the warranty period is two years from the completion of the work and delivery of the goods to the owner. However, the owner is obliged to communicate the defect of the work within a maximum period of 60 days, from the day he discovered the defect of the work. This means that the law requires the owner to be aware of the defects in the work and also to promptly inform the contractor. The owner is not allowed to wait for the end of one year to inform the contractor of a work defect he discovered months earlier.

As for the works on real estate (general construction, painting of walls, etc.), the deadlines are longer. The warranty has a term of 5 years, and the owner must report the defect of work within one year after the date on which he became aware of the defect.

In all the contracts can be established, by written document, a longer term of guarantee of the work.

How to claim the contractor to repair the defect?

The responsibility of the contractor for the defects of the work always depends on the previous written communication of the defect in the periods established by the Law.

It is very important that the owner has two proofs. The first proof is that of sending the written, concrete and detailed communication of the defect of the work (preferably with photographs). The second is proof of receipt by the communication contractor, for example, receipt of the letter signed by the contractor.

Another important detail is that the owner of the work shall require to be made to repair within a certain period. The owner must indicate that he requires the repair of the defect of the work until a certain day, month and year.

And what happens if the contractor fails to repair the defect?

In case the contractor fails to correct the defect within the time limit established in the written communication, the owner must submit the case to the courts within one year of the last day of the period established in the letter.

If the owner does not submit the lawsuit against the contractor at that time, the owner will definitely lose his right to demand repair of the defect. The contractor will thus be without any obligation of repair or compensation.
The strict and timely compliance of all legal procedures and deadlines is essential for the proper resolution of the problems of defects of the work and should be advised by a lawyer experienced in the matter.

CAAD – Arbitration administrative and tax quickly and at low cost to the Citizen

CAAD – Arbitration administrative and tax quickly and at low cost to the Citizen

Citizens are often faced with decisions by unfair and unlawful administrative and tax authorities. The delay and high costs of legal proceedings in the Administrative and Tax Courts in Portugal are known. Often, citizens can not withstand the very serious effects of the delay of several years in obtaining the judicial decision.

What many citizens are unaware of is that they can turn to the Administrative Arbitration Center to obtain resolution of their litigation quickly and at low costs.

What is CAAD?

Arbitration is the way to resolve a conflict without going to court. One or more impartial referees listen to both parties and decide who is right. The decision of the referees has the same value as a decision of a court.

CAAD is an institutionalized arbitration center of a specialized nature created in 2009 to resolve disputes in the administrative and tax areas. Arbitration is a way to resolve a conflict without going to court.

Regarding administrative matters, the CAAD is competent to resolve disputes arising from public employment relationships and contracts concluded by pre-contracted public entities or through an arbitration agreement, if they involve entities that are not pre-linked to the CAAD.

Regarding tax matters, the Tax Regime of Tax Arbitration (RJAT), approved in 2011, provides for the possibility of resolving, by arbitration, disputes that affect the assessment of the legality of tax acts. The Tax and Customs Authority pre-linked to CAAD’s arbitration, which allows taxpayers access to fast, free and low cost arbitration. Thus, disputes between taxpayers and the Tax Authority (Finance) can be resolved through arbitration.

What are the advantages of arbitration through the caad?

The deadline for the decision is only 6 months, which guarantees a much faster decision than in administrative and tax courts.

The average time to resolve disputes at arbitration centers supported by the Ministry of Justice is only 2 to 3 months.

The arbitration proceedings in the CAAD comply with the principle of dematerialization, using a computer platform, which allows access to the file by referees and parties from anywhere in the country and without the need to travel to the CAAD premises in Lisbon. In fact, the CAAD has national territorial competence, it is able to arbitrate processes presented by citizens of the whole country.

Transparency is a fundamental element in trust in administrative and tax arbitration. All decisions made in CAAD arbitrations are published on its website, with identification of the referees.

If one of the parties not satisfied with the decision may appeal to the competent court, in accordance with the law.
Taxpayers may have recourse to arbitration when they disagree with certain decisions of the Tax Authority (Finance Offices and Finance Directorate), such as, for example, the amount that is charged to income tax (IRS or IRC), the amount that is assigned to your dwelling for the purpose of Tax (IMI), the amount that is deducted monthly from the salary (including tax ejection). The taxpayer has the possibility to appoint one of the referees.

How does CAAD arbitrage work?

Arbitration is done by arbitral tribunals that operate in the CAAD. The referees are jurists with at least ten years of administrative or fiscal experience. If necessary, it is also possible to appoint referees experts in management or economics.

These courts consist of:

A referee – if the taxpayer chooses not to appoint a referee and the amount in question does not exceed 60 thousand euros;

Three referees – if the taxpayer chooses to appoint a referee or the amount in question exceeds 60 thousand euros. In this case, one referee is appointed by the taxpayer, another by the Finance and the third (who will be the umpire-president) by the first two.

In order to guarantee the impartiality and independence of the referees, they may not have had any direct or indirect professional relationship with the taxpayer or the finances in the previous two years.

With the arbitration through the CAAD, the Ministry of Justice intends to ensure the rights of taxpayers and citizens in general, to resolve disputes between taxpayers and the Tax Authority or Administrative Entity in a quicker and simpler way, with a reduction in the number of cases settle in court.