Portugal updates

Banking

Contributed by VdA
Banks, customers and other third parties: rules and regulations
  • Portugal
  • 07 September 2018

Although the 2008 financial crisis triggered further legislation to protect banking clients and investors, the relationship between banks and customers had been a focus of legislators and regulators long before the banking collapse. Rules and regulations in this regard concern deposit compensation, bank-client relationships, consumer complaints, breaches of contract, residential mortgage loans and minimum information duties.

Bank governance and internal controls
  • Portugal
  • 17 August 2018

The Banking Law establishes that the management and supervisory bodies of credit institutions in Portugal are responsible for defining, overseeing and implementing adequate governance to ensure the institutions' effective and prudent management, including the segregation of duties and the prevention of conflicts of interest. Further, banks must disclose information regarding the remuneration of corporate bodies and employees to the Bank of Portugal or the Single Supervisory Mechanism.

Resolution strategies in wake of 2008 banking crisis
  • Portugal
  • 10 August 2018

Following the 2008 banking crisis, the Banking Law was amended to protect depositors of all credit institutions and safeguard the stability of the EU banking system as a whole. Under the law, the Bank of Portugal may apply a number of resolution measures to failing institutions which do not involve obtaining prior consent from their shareholders or a third party. It can also create a resolution fund, which aims to provide financial support for the implementation of measures to help failing credit institutions.

Regulatory architecture: overview of banking regulators and key regulations
  • Portugal
  • 27 July 2018

The Portuguese supervisory system has changed following the recent establishment of a single supervisory mechanism and a single resolution mechanism, which are comprised of the European Central Bank (ECB) and national competent authorities. The ECB is responsible for the overall functioning of the single supervisory mechanism and the single resolution mechanism, as well as having direct oversight of eurozone banks in cooperation with national supervisory authorities.


Competition & Antitrust

Competition enforcement in Portugal – 2017 in review
  • Portugal
  • 11 January 2018

The new Competition Authority president recently completed her first full year in office with impressive results. Since November 2016 the authority has adopted six infringement procedure decisions, one commitment decision and two fining decisions. Further, the transposition of the EU Directive on Antitrust Damages Actions into national law appears to be close to completion. As a result, it seems likely that 2018 will start with the approval of a new legal framework for the private enforcement of competition law.

Competition Authority finds that exchange of information on prospective prices did not infringe competition law
  • Portugal
  • 02 November 2017

The Competition Authority recently ended an investigation into the exchange of prospective prices between pork meat producers, meat processors and slaughter houses with no finding of anti-competitive practice. This is the first Competition Authority decision to validate an information exchange scheme involving (but not limited to) competitors. As such, more straightforward guidance from the authority on how this case differs from prior cases and justifies such a benign approach would have been welcomed.

A busy year: overview of Competition Authority's 2017 activities
  • Portugal
  • 21 September 2017

To date, 2017 has been a busy year for the Competition Authority. During the first half of the year, the Competition Authority made 36 dawn raids on companies operating in several economic sectors. Although no details of the dawn raids have been released, the authority has clarified that it gathered evidence concerning cartel activities and other practices concerning the offering of goods and services with a direct impact on the final consumer.

Margin squeeze win for Competition Authority reversed almost entirely on appeal
  • Portugal
  • 17 August 2017

In a significant defeat for the Competition Authority, the Lisbon Court of Appeal has partially reversed a first-instance judgment and repealed the main fine imposed in a margin squeeze case which involved pharmacies' sales data for prescription medication and consumer health products. The decision re-emphasises the autonomy, for antitrust liability purposes, of separate legal parties in the same economic group.

Fighting bid rigging: Competition Authority's advocacy initiative in public procurement
  • Portugal
  • 27 April 2017

The Fighting Bid Rigging in Public Procurement campaign is a highlight of the Competition Authority's recent advocacy initiatives. The campaign is intended to raise awareness among the state bodies that regularly award public contracts of the most common issues concerning bid rigging in public procurement. It also advises on how to detect illegal practices in the context of public tenders and design tender programmes in a way that inhibits potential collusive tendering.


Employment & Benefits

Appeal court rules on employer's decision to withdraw public holidays
  • Portugal
  • 04 January 2017

A recent Guimaraes Court of Appeal case examined the legality of an employer's decision to withdraw two public holidays from its employees. The court held that the granting of the public holidays to employees amounted to a binding employment practice, as it was general in character, fixed and constant. As a result, the court decided that the employer could not make a unilateral change to the practice that, because of its classification as a custom, had become binding.

Supreme Court of Justice rules on employee dismissal following employer insolvency
  • Portugal
  • 21 December 2016

A recent Supreme Court of Justice decision examined whether the payment due for the termination of an employment contract as a result of a collective dismissal following an employer's declaration of insolvency was a debt of the insolvent estate or the insolvent company. The court decided that the compensation awarded to the employee in the case at hand was a debt of the insolvent company and not the insolvent estate.

Changes to employment support introduced
  • Portugal
  • 14 December 2016

Recent changes to employment law have removed the obligation on unemployed people to present themselves at an employment exchange every two weeks in order to maintain their unemployment benefits. The changes have also introduced a system of personalised employment support, which involves integrated support for the recipients of unemployment benefits.


Energy & Natural Resources

Contributed by Morais Leitão, Galvão Teles, Soares da Silva & Associados
ERSE gets new supervisory duties
  • Portugal
  • 03 September 2018

Pursuant to the State Budget 2017, the liquefied petroleum gas, petroleum-derived products and biofuels sectors, which were previously under the National Fuels Market Authority's supervision, are now subject to the Energy Services Regulatory Entity's (ERSE's) supervision. Minor changes have also been made to the ERSE's consulting bodies.

Merchant solar projects in Portugal: growing interest and challenges
  • Portugal
  • 25 June 2018

With the increasing number of projects being licensed under market rules, renewable energy generators are now faced with energy trading under organised markets, without a traditional power purchase agreement with the off-taker. The new reality of operating without a feed-in tariff is challenging – particularly as regards meeting bankability requirements. However, stakeholders are exploring alternatives.

New rules for obtaining electricity generation permits when request capacity exceeds grid capacity
  • Portugal
  • 12 March 2018

The 2018 state budget amended Article 33-F of Decree-Law 172/2006, which establishes the criteria that applicants must fulfil to generate electricity via renewable and non-renewable endogenous resources on a market basis in order for the licensing authority to grant a generation licence or accept a prior notification. The amendment aims to establish new rules for when the relevant network has insufficient capacity to support the additional load that results from requests submitted to the licensing authority.

Government approves decree-law on private service electrical facilities
  • Portugal
  • 27 November 2017

The government recently approved a decree-law which establishes the legal framework for medium, high and low-voltage private service electrical facilities powered by the public service electric network and temporary and itinerant self-generation facilities. The law will enter into force on January 1 2018 and revoke the Electrical Facilities Licensing Regulation, as amended, but only with regard to the provisions applicable to private service electrical facilities covered by the new framework.

New biomass legal regime introduced
  • Portugal
  • 14 August 2017

The special and extraordinary legal regime for the construction and operation by municipalities, inter-municipal associations and municipal associations of biomass plants for specific purposes was recently approved by way of a decree-law. However, the regime has not been fully implemented, as the government must decide on the terms of the licensing procedures and the remuneration of energy generated by biomass plants licensed under the new regime.


Insurance

Contributed by Morais Leitão, Galvão Teles, Soares da Silva & Associados
Amendments to Insurance Supervision Act
  • Portugal
  • 04 September 2018

A number of amendments were recently made to the Insurance Supervision Act in the context of transposing the EU Markets in Financial Instruments Directive. The main amendments concern the protection of communications to the Portuguese insurance regulator regarding violations, the imposition of fines on insurers that violate the EU Benchmarking Regulation and the rules applicable to insurers' marketing of insurance products linked to investment funds.

Legal basis for processing personal health data for insurance purposes
  • Portugal
  • 07 August 2018

Under the General Data Protection Regulation, the processing of health data for insurance purposes requires the data subject's 'explicit consent', which poses enormous challenges for the insurance industry. Portugal has no specific legislation concerning the processing of health data for insurance purposes. However, it is hoped that the anticipated Data Protection Act will provide specific grounds for the processing of such data in this context.

Implementation of EU Insurance Distribution Directive
  • Portugal
  • 24 July 2018

The EU Insurance Distribution Directive (IDD), as amended, should have been transposed into national law by 1 July 2018, with the date of application of the new rules set for 1 October 2018. Although the IDD has yet to be transposed in Portugal, the government has submitted the proposed text of the new statute to Parliament for discussion.

Supreme Court clarifies late payment of insurance compensation
  • Portugal
  • 03 April 2018

When an insured event takes place, the insurer is bound to compensate the insured for the corresponding loss. However, the law is not entirely clear as to the moment when this payment should occur. Although Portuguese judicial decisions on this subject have thus far been inconsistent, a recent Supreme Court judgment appears to have shed light on the intended scope and meaning of the relevant legal provisions.

General good provisions: freedom of establishment and freedom to provide services
  • Portugal
  • 20 February 2018

The Insurance Supervisory Authority (ASF) recently published a consultation paper requesting comments on the draft regulatory norm, which sets out the general good provisions applicable to insurers acting in Portugal under the freedom of establishment or freedom to provide services. The draft sets out a number of general good provisions which would be applicable to the distribution of all types of insurance and provisions which would apply to the distribution of mandatory insurance and life insurance products.