2024-06-07

On May 27th, 2024, the Portuguese Government published three Resolutions on important investments to be implemented in the country, establishing the following:

  1. The location of the new Luís de Camões Airport, in Alcochete, and rules for its construction (Resolution No. 66/2024);
  2. Measures to strengthen the traffic capacity of Humberto Delgado Airport (Resolution No. 67/2024); and
  3. A calendar for the completion of studies on the third Tagus crossing and the high-speed connection between Lisbon and Madrid, by Infraestruturas de Portugal, S. A., (Resolution No. 68/2024).

New Luís de Camões Airport

Luís de Camões Airport will fully replace Humberto Delgado Airport, although both will remain in operation while the construction of the new airport is not completed, to minimize the consequences of disruption to passenger air traffic.

ANA Aeroportos has 6 months to draft the initial report and 36 months to prepare the tenders for New Lisbon Airport, including a public consultation report; an environmental impact assessment; a financial report, and a technical report. 

Reinforcement of the traffic capacity of Humberto Delgado Airport

According to the report of an Independent Technical Commission (CTI), the new airport will not be operational before 2030, requiring the reinforcement of the current capacity of Humberto Delgado Airport to accommodate the growth of passenger traffic in the coming years.

This entails investments in the airport's subsystems: such as taxiways, airstrips, aprons, terminals, and accessibility; as well as an increase in the number of air movements. The Government has set up a monitoring group to work to achieve an annual traffic volume of 40 to 45 million passengers.  It also determined that investments at Humberto Delgado Airport should be limited to only those necessary, considering the temporary nature of the solution.

Third Crossing on the Tagus and High-Speed Rail

Infraestruturas de Portugal, S.A. is obliged to anticipate the conclusion of the studies on the main topological characteristics of the third crossing of the Tagus on the Chelas-Barreiro axis, by the end of 2024, to allow a final decision by the Government.

The emerging costs must receive European funding, through the Portugal 2030 Programme, in the amount of EUR 1,980,000, with the national counterpart being supported by funds to be included in the Activity Plan and budget of Infraestruturas de Portugal, S.A.

The third crossing of the Tagus will be developed in a road-rail model, and eventually a road component.

As for the financing model, and taking into account the multimodality of this infrastructure, as well as the existence of an autonomous concession model for the various crossings of the Tagus, it should be evaluated through a management solution that includes: (i) the construction of a new crossing and (ii) the operation and maintenance of the three crossings of the Tagus, once the term of the current concession has expired.

2024-06-07

On May 27th, 2024, the Portuguese Government finally launched the first electronic tender to purchase biomethane and hydrogen produced by water hydrolysis using electricity generated from renewable energy sources.

The tender establishes the purchase of the following maximum quantities:

  • Biomethane: 150 GWh/year with a maximum price of €62/MWh; and
  • Hydrogen: 127 GWh/year, with a maximum price of €127/MWh.

Transgás, S.A., in its capacity of Wholesale Supplier of Last Resort, will directly contract with producers to purchase the auctioned quantities. These agreements will last for 10 years from the first grid injection and must start within 36 months from the date of the award.

The auction is split into three main phases:

  • Qualification: bidders shall submit the tender application and provide a provisional bond in the amount of 1% of the base price in €/MWh/year, multiplied by the energy the promoter intends to bid for over 10 years;
  • Bidding: the tender is designed under a "descending clock" type, with multiple sequential rounds, and the outcome will be based on the price and quantity offered by the bidders;
  • Awarding: successful bidders will be awarded with a certificate granting the right to sell the biomethane or hydrogen and will be required to replace and provide a new bond in the amount of 1% of the final bid price in €/MWh/year, multiplied by the awarded energy capacity for 10 years.

Any legal entities meeting the tender requirements can take part in the auction if they are registered as producers of renewable or low-carbon gases at the time of the application.

Promoters have until June 12th to request clarifications on the tender documents and must submit their applications by July 26th.

The tender documents can be accessed on the Tender Platform or the DGEG website.

2024-05-06

In our modern days, it has become increasingly common to replace wet ink signatures with electronic signatures. As such, it is important to understand the legal effects of electronic signatures, in what situations they are allowed and what are their requirements, particularly in the labour and employment context.

These are questions usually raised by our Clients.

Within the Portuguese legal framework, electronic signatures are governed by Decree-Law 12/2021 of 9 February, which ensures the implementation of Regulation (EU) 910/2014 into Portuguese law.

Regulation (EU) 910/2014 foresees that qualified electronic signatures have the equivalent legal effect of handwritten signatures and establishes the principle that an electronic signature should not be denied legal effect on the grounds that it is in an electronic form or that it does not meet the requirements of the qualified electronic signature.

(A) Types of electronic signatures and their probative force

The different types of electronic signatures, explained below, correspond to different levels of security and trustworthiness, which has an impact on the probative force of each type of e-signature, particularly important in legal disputes, as follows:

(1) Simple electronic signatures – e.g. handwritten scanned signatures or online drawn signatures with mouse or touchpad.

This type lacks cryptographic security measures, being the least secure form of e-signature.

These signatures have the probative force of a private document subject to the free discretion of the court.

(2) Advanced electronic signatures – e.g. DocuSign or AdobeSign signatures.

To be considered as advanced electronic signatures, they must be uniquely linked to the signatory and capable of identifying him/her. Additionally, these signatures must be created using electronic signature creation data and must be linked to the data signed therewith in such a way that any subsequent change in the data is detectable.

These signatures also have the probative force of a private document subject to the free discretion of the court.  

(3) Qualified electronic signatures – e.g. electronic signature with the Portuguese citizen card or the Digital Mobile Key provided by the Portuguese Government or by the trust service providers Multicert or DigitalSign certificates.

These signatures are created by a secure signature creation device and are based on a qualified certificate for electronic signatures.

Qualified certificates for electronic signatures are provided by qualified providers, whose status is granted by the competent national authority and made official in the "National Trusted List" of each EU member state. Therefore, in order for electronic signatures to be qualified, they must be issued by a qualified certification body.

A qualified electronic signature in an electronic document is legally equivalent to a handwritten signature, i.e., qualified electronic signatures have the probative force of a private document with recognized authorship.

(B) E-signatures in the employment context

In light of the above, it is important to ascertain what types of electronic signatures are valid in the employment context and under what circumstances they can be used.

(1) When should qualified electronic signatures be used?

According to the Portuguese Labour Code, open-ended employment agreements, as a rule, do not require a written form, allowing for their signature with simple, advanced, or qualified e-signatures.

However, several provisions under the Portuguese Labour Code require a written form, such as:

a) Term employment agreements;

b) Employment agreements with foreign employees;

c) Multiple employer agreements;

d) Temporary employment agreements;

e) Part-time work arrangements;

f) Teleworking agreements;

g) Agreements to provide work with exemption from working hours;

h) Disciplinary procedures;

i) Termination of employment by mutual agreement; and

j) Non-competition agreements and permanence agreements.

For these agreements and arrangements, wet ink signatures from both the employer and the employee are required. Therefore, when electronically signed, it is advisable to use a qualified digital signature to confer equivalent legal effects as wet ink signatures.

(2) When should simple or advanced electronic signatures be used?

Simple and advanced electronic signatures are suitable for situations where the law does not mandate a written form, for instance:

a) Communications to employees;

b) Human resources policies;

c) Employee handbooks;

d) Performance evaluations;

e) Promotion letters;

f) Recommendation letters;

(3) In what situations e-signatures cannot be used?

Electronic signatures - even if qualified - cannot be used in legal transactions or documents requiring notarized documentation or notarization of signatures.

Also, if the documents need to be personally delivered to an authority (e.g., documents to be delivered by employees to Social Security to obtain unemployment benefits), only wet signature is allowed.

Overall, electronic signatures serve as a legally valid and efficient method for daily operations, especially for employer companies, emphasizing the importance of understanding their types and legal ramifications.

2024-04-09

Order 3034/2024, published on 21 March, was one of the last directives of the former Portuguese Government Energy Secretary of State which restored the clawback tax on the electricity produced in Portugal, setting new amounts for the advance payment by the producers to the TSO, applicable as from 1 January, 2024.

The new advance payments, in a phased system following the return points of the Spanish energy tax, are now as follows:

  • First quarter: 2.16 €/MWh, per unit of energy injected into the public service electricity grid;
  • Second quarter of 2024: 3.24 €/MWh, per unit of energy injected into the public service electricity grid; and
  • Third and fourth quarters: 4.31 €/MWh, per unit of energy injected into the public service electricity grid.

Although, contrarily from the Spanish energy tax, where the taxable amount is the income generated in the sale of electricity, under the Portuguese clawback mechanism created in 2013 by Decree-Law no. 74/2013, allegedly to correct distortions in the price of electricity on the Iberian wholesale electricity market (it never took into consideration other long time existing tax distortions, such as the different VAT rates in Portugal and Spain, as it should have if we admit the mechanism would react to different taxation regimes), the Portuguese producers are taxed per unit of energy injected into the public service electricity grid.

This difference will have a substantial negative impact on Portuguese producers, as the number of daily hours where the price of electricity in the Iberian market is close to zero, zero or even negative, is alarmingly increasing. Plus, as electricity prices continue to decrease to unthinkable values: in week 14 this year, the electricity average price in Portugal has reached €3,97MWh – a figure close to the amount of the clawback payment per MWh established for the second quarter of 2024.

So, instead of correcting a hypothetical market distortion, the Portuguese clawback tax may well develop a cause of market distortion between Portugal and Spain and become another disincentive for investors to participate in the Portuguese renewables market.

2024-03-28

The new Portuguese Biomethane Action Plan 2024-2040 ("BAP"), published 15 March, establishes a strategy to develop the biomethane market as a sustainable way to reduce greenhouse gas emissions and combat external dependence on natural gas, with the aim of replacing natural gas with biomethane by up to 18.6% by 2040.

The PAB contemplates two phases with different time horizons and a transversal complementary axis to the two phases:

  • A first phase (2024-2026) aims: to develop the biomethane market in Portugal by creating a favourable regulatory framework for the implementation of new projects; encouraging the conversion of existing biogas plants to produce biomethane; allowing the collection of bio-waste by municipalities as set in the Strategic Plan for Municipal Waste 2030; removing of barriers to injection the into the public gas network ("RPG") and to the use in the transport and industry;   

  • A second phase (2026-2040) to ensure the consolidation of the biomethane market and increase the level of production, encourage management entities in the wastewater sector to use and maximize the anaerobic digestion of sludge, and the use of livestock and agro-industrial effluents (manure and slurry) for the production of biomethane, diversify the technological base of production through the use of alternative technologies, speeding up the licensing of gasification and power-to methane units, reinforcing R&D&I funding; and encourage the creation of biomethane communities or virtual pipelines to facilitate the production and injection of biomethane into the gas network.

  • A complementary axis (2024-2040) for the social and environmental sustainability of the growth of the biomethane market and the active participation of society in the development of the sector:  to promote the use of sustainable vehicles and methods for the collection and transport of waste and the incorporation of digestates into agricultural fields; and implement the European strategy to reduce methane emissions into the atmosphere, enabling the agro-industrial and waste sectors to comply with it.

The PAB, as so many sectorial plans approved in recent times, is of a programmatic nature and it does not establish effective implantation measures to achieve any of its goals.  Whether it will be of use for the incoming Portuguese Government to do so is yet to be seen.

This has been done through Order of the Portuguese Energy Secretary of State of 22 February, which adds a period of 10 months for promoters to comply with the following milestones:

  • Solar Auction 2019: obtaining a license or approval to prior notice for the execution of construction works; as well as the operation license.
  • Solar Auction 2020: obtaining the production and operation license; obtaining a license or approval to prior notice for the execution of construction works.
  • Floating Solar Auction 2021: obtaining the production and operation license; obtaining the approval for the execution project by the Portuguese Environmental Agency (APA).
  • Renewable energy power plants with an installed capacity of over 1 MW: obtaining the production and operation license.
  • Renewable energy power plants with an installed capacity equal to or less than 1 MW (UPPs): obtaining the operation certificate.

These extensions apply together with those already approved in 2021, 2022, and 2023, confirming the challenges faced by promoters in obtaining licenses from the Portuguese Energy Ministerial Department (DGEG). This is more so concerning the holders of the grid capacity titles (TRC) that were awarded the 2019 and 2020 auctions in obtaining financing, because of the (sometimes very) low tariffs they committed to, highlighting the shortcomings of the bidding model chosen by the Portuguese Government.

The Portuguese Government has also suspended (Order of Portuguese Energy Secretary of State of 23 February) the termination of the prior registry for renewable gas production units granting their promotors an additional period of 3 months to complete their plants’ construction.

2024-02-23

Not quite yet. The program for the tenders to award the Portuguese low-voltage grid ("LV") concessions was announced today by the Portuguese Government, through its Resolution no. 27/2024. However, it refers to end of October a decision on the number of concessions.

The following dates have been set:

  1. The Portuguese Energy Services Regulatory Authority ("ERSE") has until July 31st, 2024, to provide the municipalities the documentation regarding the assets allocated to the distribution grid;
  2. The municipalities have until October 31st, 2024, to agree on the creation of intermunicipal concessionaires;
  3. The municipalities that choose not to be part of a group of concessionaires have until October 31st, 2024, to confirm this intention, and to publish the technical studies on which this decision was based;
  4. The municipalities included in a group of concessionaries have until March 31st, 2025, to make all resolutions needed to launch the public tenders; an
  5. At last, the group of concessionaries representative has until June 30th, 2025, to launch the public tender procedure.

After the public debate in recent years, in which, for example, ERSE suggested dividing the continental territory into 3 concessions and the National Association of Municipalities suggested a single concession, the number of tenders and concessions will be definitively decided in October 2024, and the tenders will be launched until June 30th, 2025. We will have to wait for the results of the general elections, scheduled for March 10, to see if this program is kept by the next Portuguese government.

2024-02-13

For the first time in Portugal, the Lisbon Labour Court has acknowledged the existence of an employment agreement between a courier and a digital platform.

This landmark decision is the result of a lawsuit filed by the Portuguese Public Prosecutor's Office, following an inspection conducted by the Authority for Working Conditions (Autoridade para as Condições do Trabalho).

Law 13/2023, of 3 April (“Law 13/2023"), which amended the Portuguese Labour Code under the “Decent Work Agenda Law”, introduced new rules concerning the recognition of employment agreements in the context of digital platforms (new article 12-A). The existence of an employment agreement is now presumed when some of the following requirements are met in the relationship between the activity provider and the digital platform:

  1. The digital platform establishes the remuneration for work performed on the platform;
  2. The digital platform exercises management power and imposes specific rules, namely regarding how the activity provider presents themselves, their conduct towards the service user, or the provision of the activity;
  3. The digital platform controls the provision of the activity; and
  4. The platform owns the equipment and work tools used by the activity provider.

The Lisbon Labour Court ruled that all the aforementioned requirements were met, insofar as: (i) the digital platform manages the business between the courier and the service user (client); (ii) the employee provides their activity to the digital platform; (iii) the activity is provided against payment of a delivery fee; (iv) the platform exercises management power over the employee; and (v) the digital platform controls and supervises the provision of the activity, restricting the employee's autonomy.

This court decision could result in heavy contingencies for digital platforms that fail to adapt their business models to the new Portuguese labour rules. It may also have retroactive effects, as it opens the door to labour rights claims that existed before this court ruling.

In addition to the implications of this court decision, the Portuguese Public Prosecutor's Office reported filing more than a thousand lawsuits in the Portuguese labour courts based on similar assumptions. It is foreseeable that these digital platform companies will have to rethink how they employ couriers.

Furthermore, companies providing services through couriers and digital platforms are expected to continue asserting that they are not transport providers, but mere intermediaries between the driver/courier and the customer, which is why these companies are most likely to appeal against these decisions.

For the first time in Portugal, the Lisbon Labour Court has acknowledged the existence of an employment agreement between a courier and a digital platform.

This landmark decision is the result of a lawsuit filed by the Portuguese Public Prosecutor's Office, following an inspection conducted by the Authority for Working Conditions (Autoridade para as Condições do Trabalho).

Law 13/2023, of 3 April (Law 13/2023"), which amended the Portuguese Labour Code under the “Decent Work Agenda Law”, introduced new rules concerning the recognition of employment agreements in the context of digital platforms (new article 12-A). The existence of an employment agreement is now presumed when some of the following requirements are met in the relationship between the activity provider and the digital platform:

1.    The digital platform establishes the remuneration for work performed on the platform;

2.    The digital platform exercises management power and imposes specific rules, namely regarding how the activity provider presents themselves, their conduct towards the service user, or the provision of the activity;

3.    The digital platform controls the provision of the activity; and

4.    The platform owns the equipment and work tools used by the activity provider.

The Lisbon Labour Court ruled that all the aforementioned requirements were met, insofar as: (i) the digital platform manages the business between the courier and the service user (client); (ii) the employee provides their activity to the digital platform; (iii) the activity is provided against payment of a delivery fee; (iv) the platform exercises management power over the employee; and (v) the digital platform controls and supervises the provision of the activity, restricting the employee's autonomy.

This court decision could result in heavy contingencies for digital platforms that fail to adapt their business models to the new Portuguese labour rules. It may also have retroactive effects, as it opens the door to labour rights claims that existed before this court ruling.

In addition to the implications of this court decision, the Portuguese Public Prosecutor's Office reported filing more than a thousand lawsuits in the Portuguese labour courts based on similar assumptions. It is foreseeable that these digital platform companies will have to rethink how they employ couriers.

Furthermore, companies providing services through couriers and digital platforms are expected to continue asserting that they are not transport providers, but mere intermediaries between the driver/courier and the customer, which is why these companies are most likely to appeal against these decisions.

2024-01-29

Last January 10th, 2024,  Council Regulation (EU) 2024/223 of December 22, 2023 ("Regulation 2024") amended and extended the rules in Council Regulation (EU) 2022/2577 of December 22, 2022 ("Regulation 2022") for the granting licenses for renewable energy production.

These are the main highlights of this new regulation:

(1) Member States must ensure that, for projects of overriding public interest, priority is given in the licensing procedure to the construction and operation of renewable power plants and the development of related grid infrastructure;

(2) For other power production projects to benefit from the prevailing public interest there can be no alternative or satisfactory renewable solutions;

(3) Licensing for the repowering of renewable energy plants in renewable energy zones and of the related grid infrastructure necessary to integrate renewable energy into the electricity system cannot exceed 6 months. If the plant’s capacity increase does not surpass 15%, the permit-granting process for the grid infrastructure is reduced to 3 months;

(4) The process of licensing the installation of solar energy equipment and co-located energy assets in existing or future structures may not exceed 3 months, provided that the main purpose of such structures is not the production of solar energy. The installation of such solar equipment is exempt from a case-by-case decision to carry out an environmental impact assessment.

Regulation 2024 will have, once in full force and effect (1st July 2024), an impact on the Portuguese regulatory framework, because:

a) The time DGEG (the Portuguese energy ministerial department) has now to amend the permits of a project to allow its repowering as set out in the National Electricity System Law (Decree-Law no. 15/2022), including the obtaining of the required opinions of external entities, cannot exceed 6 months;

b) Solar energy projects’ not reaching the mandatory thresholds (generating capacity ≥50 MW or the area occupied by panels and inverters is ≥100ha, or, in case it is installed in sensitive areas, has a generating capacity ≥20 MW or the area occupied by panels and inverters is ≥10ha) cannot now be required by DGEG or by APA (the Portuguese environmental agency) to conduct a case-by-case environmental impact assessment, no matter their potential environmental impact and location of the project.

2024-01-12

Portugal took the first relevant step in setting up the Voluntary Carbon Market ("VCM") with the publication of Decree-Law 4/2024 (“VCM Regulation”), following a public consultation between 8 February and 11 April 2023.

The creation of this market aims to prevent greenwashing in the acquisition of carbon credits and to increase investor confidence when the European Union is developing its proposal for regulating VCMs. The VCM Regulation, although already incorporating EU principles, contemplates the eventual need for adaptation to new European legislation that may be approved.

To register projects in the VCM, promoters of greenhouse gas ("GHG") emission reduction projects or carbon sequestration projects in Portugal must submit them at an online platform, which has yet to be created, with a report detailing (i) the start and minimum duration of the project, (ii) the method used to quantify GHG emissions or carbon sequestration, (iii) the identification of possible externalities and the conditions for monitoring GHG emissions. Each project must also be validated by a duly qualified independent verifier using criteria yet to be defined by Ministerial Order.

According to the VCM Regulation, credits are generated by reducing GHG emissions or sequestering carbon, whereby reducing emissions, or sequestering 1 ton of CO2 generates 1 carbon credit. In turn, those unable to reduce their emissions can voluntarily purchase carbon credits. In this way, they compensate for their emissions by financing GHG emission reduction projects.

Credits can take two forms:

  • Future carbon credits, the licenses for which are issued prior to the reduction of GHG emissions or carbon sequestration and are based on an estimate submitted by the promoter; or
  • Verified carbon credits, the licenses for which are issued after an effective reduction in GHG emissions or carbon sequestration.

Projects submitted to the Portuguese VCM cannot be submitted to other similar national or international trading systems.

The Portuguese VCM start of operation is expected in 2024 once the online platform and ancillary legislation are in place, but the current political outlook makes it difficult.