Archive

Consortium Contract – Characteristic and key elements:

If I enter into a Consortium contract with third parties , do i get a new partner/shareholder?

According to the first article of the decree no.231/81, of July 28th, the Consortium is an agreement, through which two or more people, singular or collective, who exercise an economical activity compel each other, concertedly, to accomplish a given activity or perform a certain contribution aimed to pursue any of the following objects:

a) The accomplishment of material or legal preparatory actions either from a certain project, or from a continuous activity;

b) The execution of a certain project;

c) The supply to third parties of goods, equal or complementary among themselves, produced by each of the consortium members;

d) The research and exploration of natural resources;

e) The production of goods that can be divided, in kind, between the members of the consortium.

The members of the consortium don’t  exert a common activity, because each one carries on exercising their own, even though it is concerted in the activities of the other members.

When the accomplishment of a contractual object involves the rendering of any contributions, it shall consist of something tangible or of the use of something tangible; cash contributions are only allowed if all the members make the contribution in the same kind.

The Consortium can be internal or external.

A consortium is internal when:

a) The activities or goods are given to one of the members of the consortium and only this member establishes relations with third parties;

b) The activities or goods are supplied directly to the third  parties by each and every member of the consortium, without expressed evocation it.

It is external when the activities or goods are supplied directly to  the third  parties by each and every member of the consortium, with expressed evocation it.

The bodies of the Consortium are:

– Consortium Leader – a mandatory position.

– Guidance and Supervision Council – optional but its existence is advisable.

www.fa-legalonline.com | Civil Law

Construction Services New Licence Law – Major Changes

Law 41/2015, of June 3rd – Major changes to the Decree 12/2004, of January 9th
The Law 41/2015 of June 3rd introduced significant alterations to the license regime, of which some are listed below:

• There is now the need for two licenses and two certificates: License/Certificate of Public Works Contractor and License/Certificate of Private Works Contractor License
• The category of General Contractor/Constructor ceases to exist
• There are now more subcategories – 59 instead of 55 (for the Contractors)!
• Some of the categories/subcategories for the Public Works Contractors License are eliminated
• The entry and staying requirements for public works remain the same, but are reduced for the private works.
• The Licenses and Certificates are issued for indefinite time, however there is now an annual Unofficial Control.
• It is now demanded the payment of an annual fee, considering the largest class owned.
• Definition of less demanding requirements for Businesses established in other States.
• Modification of the value of the rates (Decree 261 – A/2015 of August 27th)

We stress some of the (new and controversial) incumbent duties on the Businesses:

• Public Works Contracts: Have the qualification that includes subcategories in classes, which covers the total value of the construction!
• Assure the reduction of written Private Works Contacts, in the case of works superior to 10% of the value of class 1 and maintain a 10-year-archive.
• Subcontract works to companies duly qualified and reduce written contracts
• Communicate to the Institute of the Public Markets, Real Estate and Construction (IMPIC), in the 15 days following the respective verification:
  i) Alterations in the entry requirements (reputation, technical and economical ability and ownership of an accidents at work insurance);
  ii) Alterations to the headquarters local;
  iii) Being the object of a declaration of insolvency;
  iv) Others
  As a footnote it is still important to stress that the IMPIC is a competent authority to proceed to the issue/reclassification of the processes of licenses and certificates, as well as for the unofficial control of the compliance of the entry and straying requirements.

Construction Services New Licence Law – Major Changes | www.fa-legalonline.com

Non-Habitual Resident – Favored Tax Regime

The  Investment Tax Code, approved by Decree-Law no. 249/2009 of September 23, created the Tax Regime for the Non-Habitual resident though the Income Tax, aiming to attract to Portugal non-resident qualified professionals in activities of high value added or of intellectual and industrial property or know-how, as well as pension beneficiaries obtained abroad.

A citizen can request the enrollment as a non-habitual resident if he satisfies the following conditions:

• To be considered, for tax effects, a resident in Portuguese territory according to any of the established criteria in numbe1 of the article 16 of the IRS Code in the year in which it is intended to begin the taxation as non-habitual resident;
• Not to be considered resident in Portuguese territory in any of the five years prior to the year in which it is intended to begin the taxation as a non-habitual resident;
• To exercise activities of high value added, with a scientific, artistic and technical character in the terms of Ministerial Order no. 12/2010 of January 7^th.

A citizen who is considered a non-habitual resident acquires the right to be taxed as such in the 10 consecutive years (non extendable period) including and starting on the year of his enrollment as a resident in the Portuguese territory, as long as he is considered a resident in each one of those 10 years.

It is stressed that the enjoyment of the right to be taxed as a non-habitual resident, in each year of the period previously referred, depends on being, in that same year, considered resident in the Portuguese territory.

The net income of the Categories A (contractual work) and B (self-employed work) earned in activities of high value added in the terms of the Ministerial Order no. 12/2010 of January 7^th, by non-habitual residents in Portuguese territory, are taxed at the special rate of 20%, if not exercised the option for aggregation.

Concerning the remaining income of the categories A and B (not taking into account the high value added) and the income of the remaining categories, earned by non-habitual residents, the same included and taxed according the the general laws established by the IRS code.

Non-habitual resident | www.fa-legalonline.com

Brazil Lawyer | Partnership held for Brazilian Market

Fa LegalOnline is very pleased to announce the partnership held for Brazilian Market, celebrated with Felipe Kfuri, lawyer and founding partner of the law office Kfuri Advogados, graduated in 1994 by the University of Rio de Janeiro County- UERJ.

Master in Internacional Relationships by the Internacional Relationships’ Institute – IRI- from Pontifical Catholic University in Rio de Janeiro – PUC, 1999.

Main activities performed:

National or international public tender processes to award infrastructure projects, including bidding, electric energy and renewable energy, Concessions to the private sector for roads, railroads, ports and terminals, urban mobility, mining, oil and natural gas.

Was in-house lawyer at Michelin, in Sepetiba Tecon (container terminal); and was lawyer at Machado Meyer Sendacz Ópice Advogados e LOB-SVMFA Advogados – Infrastructure projects.

Currently is a member of the Fiscal Council on Natural gas concessionary companies.

www.fa-legalonline.com | Brazil Lawyer

A Fa LegalOnline has settled several partnerships with law firms in Romania (Bucharest) e and Brazil (Rio de Janeiro), which enables Fa LegalOnline to provide the necessary assistance to the issues related with the following areas of law:

• Civil, Commercial, Corporate, Consumer, Administrative and Sports Law, and others (Romania).
• Public Law, Administrative Law, Regulatory matters, contracts, corporate and others (Brazil)

Partnership held for Romanian Market | Romania Lawyer

Fa LegalOnline is very pleased to announce the partnership held for Romanian Market, celebrated with Epure, Valentin, Romanian lawyer, Admitted to the Romanian Bar in 2002, specialized in Civil, Comercial and Sports Law.

Master in Financial Law, Banking Litigation and Insurances at the Academy of Economic Studies in Bucharest (Romania).

Main activities performed:

Founded his own law firm from 2011 in Bucharest which has been growing through the years.

From 2002 to 2011, worked for known law firms in Bucharest (Margarit, Florov & Partners, A.C.Pop Law Firm, Stefanica & Florea) having as clients many banks from Romania, public authorities (e.g. Municipality of Bucharest), and major public companies (e.g. TAROM, Bucharest Airport).

From 2007-2014 – worked with the Professional League of Football from Romania as member of jurisdictional committees.

From 2012-2014 I was the President of Disciplinary Committee.

We are certain that all conditions are gathered to provide you a service of excellence.

Thank you for your trust!

www.fa-legalonline.com | Romania Lawyer

Fa LegalOnline has settled several partnerships with law firms in Romania (Bucharest) e and Brazil (Rio de Janeiro), which enables Fa LegalOnline to provide the necessary assistance to the issues related with the following areas of law:

• Civil, Commercial, Corporate, Financial Law, Banking Litigation and Insurances, Consumer, Administrative and Sports Law, and others (Romania).
• Public Law, Administrative Law, Regulatory matters, contracts, corporate and others (Brazil)

TRADEMARK| INDUSTRIAL PROPERTY

WHAT IS A TRADEMARK?
A trademark is a sign used to identify products and services, distinguishing them from others alike.

It has a identifying and distinguishing function, being through it that the company is favored and protected in the competition game!

According to the Industrial Property Code, the trademark can be constituted of a sign or group of signals susceptible to graphic representation, namely words, including names of people, designs, letters, numbers, sounds, the shape of the product or of the respective package, given that they are adequated to distinguish the products or services of a company from those of another companies.

The trademark can, in the same way, be constituted by advertising sentences for the respective products or services, as long as they have a distinctive character, regardless of the recognized protection by copyright.

The identification of the products through the trademark allows to reference, in an efficient way, the product for a index of quality and prestige, protects the image and guarantees the personalized (distinct) implementation of a given product or service in the market.

Trademark

Confidentiality agreement

Confidentiality agreement?

Is it important or just a mere formality? What slhould i pay attention to?

Every time there is a necessity to disclose critical information that isn’t public knowledge, the Issuer (the person who discloses the information) should protect that information through a Confidentiality Agreement.
The protected information must be as achievable as possible, in order to avoid signing a general contract until the subject can be, at least, determinable.
In other words, one must set clearly the precise context in which the information will be disclosed (which information is disclosed and to what purpose).
In a confidentiality agreement one should define the conditions in which the disclosure of the given information is allowed, the conditions of access to that information and the conditions in which the disclosure is not allowed!
Furthermore, it is specially relevant the definition of penalty rules in the case of the non-performance of the agreement.
The confidentiality agreement can also regulate other equally relevant questions, such as the transmission of ownership rights or license over the possible existence of intellectual/industrial property rights.

I HAVE RIGHTS, I HAVE FREEDMON!!

The Portuguese Republic is a nation founded on democratic law, based on popular suffrage, pluralism of expression and democratic political organization, respect and guarantee of the accomplishment of the fundamental rights and freedoms and separation and interdependence of powers, aiming at the accomplishment of economical, social and cultural democracy and the further development of participatory democracy.
These are basic examples of every citizen’s freedmon:

The right to freedom and security.

The right to openly express and disclose one’s thoughts through words, images or through any other mean, as well as the right to inform, to inform oneself and to be informed, without hindrance or discrimination.

The freedom of press.

The freedom to conscience, of religion and cult (which is inviolable).

The free intellectual, artistic and scientific creation.

The freedom to lean and teach.

As well as the individual and family freedom, as it provides, namely, to the state, for family protection.

Assure, in respect with individual freedom, the right to birth control, promoting information and access to the methods and means that assure it, and organize juridical and technical structures that allow the exercise of conscious maternity and paternity!

Liberties| Rights  www.fa-legalonline.com

The lawyer is obliged to defend the citizens’ rights, freedmon and guaranties.

Rights, freedmon and guaranties are consecrated in the Constitution of the Portuguese Republic (Title 1) and in the International Conventions and Treaties, which Portugal subscribed, such as the Declaration of Human Rights and the International Covenant on Economic Social and Cultural Rights.
Among the various rights, freedoms and guarantees, the access to effective judicial right and protection stands out, foreseen in article 20 of the Portuguese Constitution, particularly the numbers 1 and 2, according to which “it is assured to all the access to justice and courts for defense of their legally protected rights and interested, being that justice can’t be denied due the insufficient of economical funds” and “we have the right, in terms with the law, to information and legal consultations, to legal representation and to be accompanied by a lawyer before any authority”.
The social responsibility of the lawyer makes him fight for the good administration of justice and assert the individual guaranties of harmony with the Law. And, therefore, it is the lawyer’s obligation to collaborate and act so that the law enforcement is done in a sane, correct, loyal, serious and fair manner.

“”There is a rule of law when the a citizen´s right to justice is assured””

Law enforcement

The Law is a norm or group of juridical norms created through specific processes of the normative act and established by the competent authorities for that purpose.
The juridical norms mandate or prohibit something in agreement with the justice and for the well-being of society in a whole, in a given era or historical contexto.

Ignorance or bad interpretation of the law does not justify the non-compliance not does it free people from the sanctions established in it.
The juridical norms obey to various principles such as the certainty, the proportionality, generality and impartiality.

The law only stipulates towards the future, even though one gives it a retroactive efficiency, it is assumed that the already existent effect of the facts that the law is meant to regulate are reserved.

When the law determines the substantial or formal validity conditions of any facts or it’s effects, it is understood that, in case of doubt, it only considers the new facts; however, when one disposes directly over the content of certain juridical relations, abstracting from their origin, it is understood that the law comprehends the relations already built that remain until the date of entry into effect.