Assembleia da República (Assembly of the Republic)
Law
Creates the specialised court for intellectual property and the specialised court for competition, regulation and supervision and makes the 15th amendment to Law no. 3/99, of 13 January, which approves the Law of Organisation and Functioning of the Judicial Courts, the 4th amendment to Law no. 18/2003, of 11 June, which approves the Legal Framework of Competition, the 5th amendment to Law no. 5/2004, of 10 February, which approves the Law of Electronic Communications, the 2nd amendment to Law no. 25/2008, of 5 June, which lays down measures of a preventive and repressive nature to combat money laundering of illicit origin and terrorist financing, the 7th amendment to Law no. 52/2008, of 28 August, which approves the Law of Organisation and Financing of Judicial Courts, the 1st amendment to Law no. 99/2009, of 4 September, which approves the framework scheme of administrative offences within the communications sector, the 23rd amendment to Decree-Law no. 298/92, of 31 December, which approves the General Regime for Credit and Financial Institutions, the 15th amendment to Decree-Law no. 94-B/98, of 17 April, which regulates the conditions to access and to exercise the insurance and reinsurance activity in the territory of the European Union, the Securities Code, approved by Decree-Law no. 486/99, of 13 November, the Code of Industrial Property, approved by Decree-Law no. 36/2003, of 5 March, the 2nd amendment to Decree-Law no. 95/2006, of 29 May, which establishes the legal regime applicable to distance contracts relative to financial services celebrated with consumers, and the 2nd amendment to Decree-Law no. 144/2006, of 31 July, which transposes into national law Directive no. 2002/92/CE, of the European Parliament and Council, of 9 December.
The Assembly of the Republic decrees, under the terms of sub-paragraph c) of article 161 of the Constitution, the following:
CHAPTER I
Amendment to the Law of Organisation and Functioning of the Judicial Courts
Article 1
Amendment to Law no. 3/99, of 13 January
The articles 34, 51, 57, 78 and 89 of Law no. 3/99, of 13 January, amended by Law no. 101/99, of 26 July, by Decree-Laws nos. 323/2001, of 17 December, and 38/2003, of 8 March, by Law no. 105/2003, of 10 December, by Decree-Law no. 53/2004, of 18 March, by Law no. 42/2005, of 29 August, by Decree-Laws nos. 76-A/2006, of 29 March, 8/2007, of 17 January, and 303/2007, of 24 August, by Laws nos. 52/2008, of 28 August, and 115/2009, of 12 October, by Decree-Law no. 295/2009, of 13 October, and by Laws nos. 40/2010 and 43/2010, both of 3 September, are replaced by the following:
«Article 34
[...]
1 - (Existing paragraph.)
2 - The grounds mentioned in articles 89, 89-A and 89-B are always circulated to the same civil chamber.
Article 51
[...]
1 - ...
2 - Whenever the volume or complexity of the service justifies it, social, family and minors and commerce, intellectual property and competition, regulation and supervision divisions can be created.
3 - When there are no social, family and minors and commerce, intellectual property and competition, regulation and supervision divisions, since there is no exceptional situation as provided for in the previous paragraph, the Court of Appeal of the judicial district or, depending on the case, of the closest district, where such divisions exist, shall hear appeals against decisions in their respective matters.
Article 57
[...]
1 - The provisions of article 37 are applicable to the Courts of Appeal, mutatis mutandis.
2 - (Revoked.)
Article 78
[...]
The following specialised courts can be established:
a) ...
b) ...
c) ...
d) ...
e) ...
f) For intellectual property;
g) For competition, regulation and supervision;
h) [Previous sub-paragraph f).]
h) [Previous sub-paragraph g).]
Article 89
[...]
1 - ...
a) ...
b) ...
c) ...
d) ...
e) ...
f) (Revoked.)
g) ...
h) (Revoked.)
i) Winding-up of European limited liability companies;
j) Winding-up of holding companies;
2 - ...
a) (Revoked.)
b) ...
c) (Revoked).
3 - The competence to which no. 1 refers to covers the respective incidents and inserts, as well as the execution of the decisions.»
Article 2
Amendment to Law no. 3/99, of 13 January
Articles 89-A and 89-B are added to Law no. 3/99, of 13 January, in its present form:
«Article 89-A
Competence
1 - It is the responsibility of the court for intellectual property to hear and determine issues related to:
a) Actions in which the cause of action deals with copyright and related rights;
b) Actions in which the cause of action deals with industrial property, in any of the forms provided in the law;
c) Actions for voidness and voidability provided for in the Code of Industrial Property;
d) Appeals against decisions of the National Institute of Intellectual Property that grant or refuse any industrial property right or that relate to transfers, licenses, declarations of obsolescence or any other proceedings that affect, modify or extinguish industrial property rights;
e) Appeal and review of decisions or any other measures, which may be legally challenged, adopted by the National Institute of Industrial Property, in administrative offence proceedings;
f) Actions for a declaration in which the cause of action deals with Internet domain names;
g) Appeals against decisions of the Foundation for National Scientific Computing, as the competent authority for the registration of .PT domain names, which register, refuse to register or remove a .PT domain name;
h) Actions in which the cause of action deals with trade names or company names;
i) Appeals against decisions of the Institute of Registration and Notary Affairs regarding the admissibility of trade names and company names within the scope of the legal framework of the National Registry of Legal Entities;
j) Actions in which the cause of action deals with the practice of acts involving unfair competition in terms of industrial property;
l) Measures of evidence collection and preservation and of provision of information when requested within the scope of the protection of intellectual property rights and of copyrights.
2 - The competence to which the previous paragraph refers to covers the respective incidents and inserts, as well as the execution of the decisions.
Artigo 89-B
Competence
1 - It is the responsibility of the court for competition, regulation and supervision to hear and determine issues relative to the appeal, review and execution of decisions, orders and other measures in administrative offence proceedings that may be legally challenged:
a) Of the Competition Authority (AdC - Autoridade da Concorrência);
b) Of the National Authority for Communications (ICP-ANACOM);
c) Of the Bank of Portugal (BP);
d) Of the Securities Market Commission (CMVM - Comissão do Mercado de Valores Mobiliários);
e) Of the Regulatory Authority for the Media (ERC - Entidade Reguladora para a Comunicação Social);
f) Of the Insurance Institute of Portugal (ISP - Instituto de Seguros de Portugal);
g) Of other independent administrative entities with regulatory and supervisory functions.
2 - It is also the responsibility of the court for competition, regulation and supervision to hear and determine issues relative to the appeal, review and execution:
a) Of the decisions of the AdC adopted in administrative procedures to which the legal framework of competition, as well as of the ministerial decision in accordance with article 34 of Decree-Law no. 10/2003, of 18 January, refers to;
b) Of other decisions of the AdC where an appeal is possible, under the terms of the legal framework of competition.
3 - The competences referred to in the previous paragraphs include the respective incidents and inserts.»
Article 3
Amendment to the systematic organisation of Law no. 3/99, of 13 January
In section iii of chapter v of Law no. 3/99, of 13 January, the following amendments are introduced:
a) The sub-section with the following title is added: «Sub-section VII, 'Court for intellectual property'», which includes article 89-A;
b) The sub-section with the following title is added: «Sub-section VIII, 'Court for competition, regulation and supervision'», which includes article 89-B;
c) The sub-sections vii, viii and ix are renumbered as sections ix, x and xi, respectively.
Article 4
Amendment to Law no. 52/2008, of 28 August
The articles 42, 57, 74, 110, 121 and 122 of Law no. 52/2008, of 28 August, amended by Laws nos. 103/2009, of 11 September, and 115/2009, of 12 October, by Decree-Law no. 295/2009, of 13 October, by Laws nos. 3-B/2010, of 28 April, 40/2010 and 43/2011, of 3 September, are replaced by the following:
«Article 42
[...]
1 - ...
2 - The grounds mentioned in articles 121, 122 and 122-A are always circulated to the same civil branch.
Article 57
[...]
1 - The Courts of Appeal comprise social, family and minors and commerce, intellectual property and competition, regulation and supervision divisions, without prejudice to the provisions of the following paragraph.
2 - The existence of social, family and minors and of commerce, intellectual property and of competition, regulation and supervision divisions, depends on the volume and complexity of the service.
3 - When there are no social, family and minors or commerce, intellectual property and competition, regulation and supervision divisions, since there is no exceptional situation as provided for in the previous paragraph, the Court of Appeal of the judicial district or, depending on the case, of the closest district, where such divisions exist, shall hear appeals against decisions in their respective matters.
Article 74
[...]
1 - ...
2 - ...
a) ...
b) ...
c) ...
d) ...
e) ...
f) Competition, regulation and supervision;
g) [Previous sub-paragraph f).]
h) [Previous sub-paragraph g).]
i) [Previous sub-paragraph h).]
j) [Previous sub-paragraph i).]
l) [Previous sub-paragraph j).]
3 - ...
4 - The benches referred to in sub-paragraphs j) and l) of no. 2 can also be divided, when the volume or complexity of the service justifies it, into three levels of judicial specialisation, under the terms of article 127.
a) ...
b) ...
c) ...
Article 110
Competence
1 - ...
2 - ...
a) ...
b) ...
c) ...
d) Hear appeals against decisions by administrative authorities in administrative offense proceedings, with the exception of appeals expressly attributed to the bench of intellectual property in article 122 and to the bench of competition, regulation and supervision in article 122-A, and except as provided for in articles 119, 121, 123, 132 and 133, when there are, in the judicial region, the respective benches of specialised competence;
e) ...
Article 121
Competence
1 - ...
a) ...
b) ...
c) ...
d) ...
e) ...
f) ...
g) ...
h) ...
2 - ...
a) ...
b) (Revoked).
3 - The competence to which no. 1 refers to covers the respective incidents and inserts, as well as the execution of the decisions.»
4 - (Revoked.)
5 - (Revoked.)
Article 122
Competence
1 - ...
a) Actions in which the cause of action deals with copyright and related rights;
b) ...
c) ...
d) Appeals against decisions of the National Institute of Intellectual Property that grant or refuse any industrial property right or that relate to transfers, licenses, declarations of obsolescence or any other proceedings that affect, modify or extinguish industrial property rights;
e) Appeal and review of decisions or any other measures, which may be legally challenged, adopted by the National Institute of Industrial Property, in administrative offence proceedings;
f) (Revoked.)
g) Actions for a declaration in which the cause of action deals with Internet domain names;
h) ...
i) ...
j) ...
l) Actions in which the cause of action deals with the practice of acts involving unfair competition in terms of industrial property;
m) Measures of evidence collection and preservation and of provision of information when requested within the scope of the protection of intellectual property rights and of copyrights.
2 - The competence to which the previous paragraph refers to covers the respective incidents and inserts, as well as the execution of the decisions.
3 - (Revoked.)»
Article 5
Amendment to Law no. 52/2008, of 28 August
Article 122-A is added to Law no. 52/2008, of 28 August, in its present form:
«Article 122-A
Competence
1 - It is the responsibility of the benches for competition, regulation and supervision to hear and determine issues relative to the appeal, review and execution of decisions, orders and other measures in administrative offence proceedings that may be legally challenged:
a) Of the Competition Authority (AdC - Autoridade da Concorrência);
b) Of the National Authority for Communications (ICP-ANACOM);
c) Of the Bank of Portugal (BP);
d) Of the Securities Market Commission (CMVM - Comissão do Mercado de Valores Mobiliários);
e) Of the Regulatory Authority for the Media (ERC - Entidade Reguladora para a Comunicação Social);
f) Of the Insurance Institute of Portugal (ISP - Instituto de Seguros de Portugal);
g) Of other independent administrative entities with regulatory and supervisory functions.
2 - It is also the responsibility of the benches for competition, regulation and supervision to hear and determine issues relative to the appeal, review and execution:
a) Of the decisions of the AdC adopted in administrative procedures to which the legal framework of competition, as well as of the ministerial decision in accordance with article 34 of Decree-Law no. 10/2003, of 18 January, refers to;
b) Of other decisions of the AdC where an appeal is possible, under the terms of the legal framework of competition.
3 - The competences referred to in the previous paragraphs include the respective incidents and inserts.»
Article 6
Amendment to the systematic organisation of Law no. 52/2008, of 28 August
In section v of chapter v of Law no. 52/2008, of 28 August, the following amendments are introduced:
a) The sub-section with the following title is added: «Sub-section VI, 'Benches for competition, regulation and supervision'», which includes article 122-A;
c) The sub-sections vi, vii and viii are renumbered as sections vii, viii and ix, respectively.
CHAPTER II
Other amendments
Article 7
Amendment to Decree-Law no. 298/92, of 31 December
Article 229 of the General Regime for Credit and Financial Institutions, approved by Decree-Law no. 298/92, of 31 December, amended by Decree-Laws nos. 246/95, of 14 September, 232/96, of 5 December, 222/99, of 22 June, 250/2000, of 13 October, 285/2001, of 3 November, 201/2002, of 26 September, 319/2002, of 28 December, 252/2003, of 17 October, 145/2006, of 31 July, 104/2007, of 3 April, 357-A/2007, of 31 October, 1/2008, of 3 January, 126/2008, of 21 July, and 211-A/2008, of 3 November, by Law no. 28/2009, of 19 June, by Decree-Law no. 162/2009, of 20 July, by Law no. 94/2009, of 1 September, by Decree-Laws nos. 317/2009, of 30 October, 52/2010, of 26 May, and 71/2010, of 18 June, by Law no. 36/2010, of 2 September, and by Decree-Law no. 140-A/2010, of 30 December, is replaced by the following:
«Article 229
[...]
The court for competition, regulation and supervision is the competent court to hear the appeal, review and execution of decisions or any other measures that may be legally challenged, adopted by the Bank of Portugal, in administrative offence proceedings.»
Article 8
Amendment to Decree-Law no. 94-B/98, of 17 April
Article 231 of Decree-Law no. 94-B/98, of 17 April, with the amendments introduced by Decree-Laws nos. 8-C/2002, of 11 January (previously published as Decree-Law no. 8-A/2002), 169/2002, of 25 July, 72-A/2003, of 14 April, 90/2003, of 30 April, 251/2003, of 14 October, 76-A/2006, of 29 March, 145/2006, of 31 July, 291/2007, of 21 August, 357-A/2007, of 31 October, 72/2008, of 16 April, and 211-A/2008, of 3 November, amended and republished by Decree-Law no. 2/2009, of 5 January, by Law no. 28/2009, of 19 June, and by Decree-Law no. 52/2010, of 26 May, is replaced by the following:
«Article 231
[...]
The court for competition, regulation and supervision is the competent court to hear the appeal, review and execution of decisions or any other measures that may be legally challenged, adopted by the administrative authorities, in administrative offence proceedings.»
Article 9
Amendment to Decree-Law no. 486/99, of 13 November
Article 417 of the Securities Code, approved by Decree-Law no. 486/99, of 13 November, amended by Decree-Laws nos. 61/2002, of 20 March, 38/2003, of 8 March, and 107/2003, of 4 June, amended and republished by Decree-Law no. 357-A/2007, of 31 October, amended by Decree-Law no. 211-A/2008, of 3 November, by Law no. 28/2009, of 19 June, by Decree-Laws nos. 185/2009, of 12 August, 49/2010, of 19 May, 52/2010, of 26 May, and 71/2010, of 18 June, is replaced by the following:
«Article 417
[...]
The court for competition, regulation and supervision is the competent court to hear the appeal, review and execution of decisions or any other measures that may be legally challenged, adopted by the CMVM, in administrative offence proceedings.»
Article 10
Amendment to Law no. 18/2003, of 11 June
Articles 50, 52, 54 and 55 of Law no. 18/2003, of 11 June, which aproves the legal framework of competition, amended by Decree-Laws nos. 219/2006, of 2 November, and 18/2008, of 29 January, and by Law no. 52/2008, of 28 August, are replaced by the following:
«Article 50
Competent court and effects
1 - The decisions adopted by the authority that determine the imposition of fines or other sanctions provided in the law shall be brought before the court for competition, regulation and supervision, having suspensory effect.
2 - Any other decisions, orders or other measures adopted by the authority shall be brought before the same court, with devolutive effect, under the conditions and limits laid down in no. 2 of article 55 of Decree-Law no. 433/82, of 27 October.
Article 52
Appeal of decisions of the court for competition, regulation and supervision
1 - The decisions of the court for competition, regulation and supervision regarding which an appeal is possible, pursuant to the general regime of administrative offences, can be contested by the Court of Appeal with jurisdiction in the area in which the court for competition, regulation and supervision, adjudicating at last instance, has its seat.
2 - There shall be no further ordinary appeals against the Court of Appeal's decisions.
Article 54
Competent court and effects of the appeal
1 - Decisions of the authority adopted in administrative proceedings to which the present law refers to, as well as the ministerial decision in accordance with article 34 of Decree-Law no. 10/2003, of 18 January, can be brought before the court for competition, regulation and supervision, as a special administrative action.
2 - The appeal provided for in the previous paragraph has a merely devolutive effect, unless it is attributed, exclusively or cumulatively with other provisional measures, a suspensory effect via the ordering of provisional measures.
Article 55
Appeal against decisions of the court for competition, regulation and supervision
1 - The decisions adopted by the court for competition, regulation and supervision in the administrative actions to which the present section refers to can be brought before the Court of Appeal with jurisdiction in the area in which the court for competition, regulation and supervision has its seat, and from this court, on points of law, before the Supreme Court of Justice.
2 - ...
3 - ...»
Article 11
Amendment to the Code of Industrial Property
Articles 40 and 46 of the Code of Industrial Property, approved by Decree-Law no. 36/2003, of 5 March, amended by Decree-Laws nos. 318/2007, of 26 September, 360/2007, of 2 November, and 143/2008, of 25 July, and by Laws nos. 16/2008, of 1 April, and 52/2008, of 28 August, are replaced by the following:
«Article 40
[...]
1 - The court for intellectual property is the competent court for the appeals provided for in the previous article.
2 - For the purposes set out in articles 80 and 92 of Regulation (EC) no. 6/2002, of the Council, of 12 December 2001, and in articles 95 and 105 of Regulation (CE) no. 207/2009, of the Council, of 26 February, the court for intellectual property is the competent court.
Article 46
Appeal of judicial decision
1 - The judgement, under the general law of civil procedure, can be brought before the Court of Appeals with jurisdiction in the area in which the court for competition, regulation and supervision has its seat, without prejudice to no. 3 of the present article.
2 - The decisions of the court for intellectual property regarding which an appeal is possible, in accordance with the general regime of administrative offences and articles 80 to 92 of Regulation (CE) no. 6/2002, of the Council, of 12 December 2001, and articles 95 to 105 of Regulation (CE) no. 207/2009, of the Council, of 26 February, can be brought directly before the Court of Appeals with jurisdiction in the area in which the court for competition, regulation and supervision has its seat.
3 - (Previous no. 2.)»
Article 12
Amendment of the Law of Electronic Communications, approved by Law no. 5/2004, of 10 February
Articles 13 and 116 of the Law of Electronic Communications, approved by Law no. 5/2004, of 10 February, amended by Decree-Law no. 176/2007, of 8 May, by Law no. 35/2008, of 28 July, by Decree-Law no. 123/2009, of 21 May, and by Decree-Law no. 258/2009, of 25 September, are replaced by the following:
«Article 13
[...]
1 - The decisions, orders or other measures adopted by the NRA, within the scope of administrative offence proceedings stemming from the application of the legal regime of electronic communications, can be contested by the court for competition, regulation and supervision.
2 - ...
3 - ...
4 - ...
5 - ...
6 - ...
7 - ...
8 - ...
9 - ...
10 - ...
11 - ...
12 - The decisions of the court for competition, regulation and supervision regarding which an appeal is possible, pursuant to the general regime of administrative offences, can be contested by the Court of Appeal with jurisdiction in the area in which the court for competition, regulation and supervision has its seat.
13 - ...
Article 116
[...]
1 - ...
2 - ...
3 - ...
4 - ...
5 - ...
6 - The acts of the NRA practiced under the present article can be brought before the court for competition, regulation and supervision, when practiced within the scope of an administrative offence proceeding, and before the administrative courts, in all other cases.»
Article 13
Amendment to Decree-Law no. 95/2006, of 29 May
Article 38 of the legal regime applicable to distance contracts relative to financial services celebrated with consumers, in accordance with Decree-Law no. 95/2006, of 29 May, and amended by Decree-Law no. 317/2009, of 30 October, is replaced by the following:
«Article 38
[...]
The court for competition, regulation and supervision is the competent court to hear the appeal, review and execution of decisions or any other measures that may be legally challenged, adopted in administrative offence proceedings in accordance with this title.»
Article 14
Amendment to Decree-Law no. 144/2006, of 31 July
Article 94 of the legal regime of insurance or reinsurance mediation, in accordance with Decree-Law no. 144/2006, of 31 July, and amended by Decree-Law no. 359/2007, of 2 November, is replaced by the following:
«Article 94
[...]
The court for competition, regulation and supervision is the competent court to hear the appeal, review and execution of decisions or any other measures, which may be legally challenged, adopted by the Insurance Institute of Portugal, in administrative offence proceedings.»
Article 15
Amendment to Law no. 25/2008, of 5 June
Article 57 of Law no. 25/2008, of 5 June, amended by Decree-Law no. 317/2009, of 30 October, is replaced by the following:
«Article 57
[...]
1 - The court for competition, regulation and supervision is the competent court to judge appeals, reviews and executions of any decision adopted, in administrative offence proceedings, by a supervisory authority of financial entities.
2 - In the case of application of the decisions referred to in paragraph 1 in administrative offence proceedings where the defendant is a non-financial entity, the competent court is the court for competition, regulation and supervision.»
Article 16
Amendment to Law no. 99/2009, of 4 September
Article 32 of the framework scheme of administrative offences within the communications sector, approved by Law no. 99/2009, of 4 September, is replaced by the following:
«Article 32
[...]
1 - ...
2 - The decisions, orders or other measures adopted by ICP-ANACOM within the scope of administrative offence proceedings can be contested by the court for competition, regulation and supervision.
3 - ...
4 - ...»
Article 17
Electronic processing of cases
1 - The processing of cases of the competence of the court for intellectual property is undertaken by electronic means in accordance with article 138-A of the Code of Civil Procedure.
2 - The processing of cases of the competence of the court for competition, regulation and supervision is also undertaken by electronic means, in accordance with the conditions to be defined by ordinance of the member of the Government responsible for the area of justice, and the procedural provisions relative to acts of magistrates and judicial secretariats should be subject to the practical improvements deemed necessary.
Article 18
Setting of competence
The competence of current courts is maintained for pending cases at the date of establishment of the new courts.
Article 19
Repeal
The following are repealed:
a) No. 2 of article 57 of Law no. 3/99, of 13 January, nos. 4 and 5 of article 121, no. 3 of article 122 and articles 167 and 168 of Law no. 52/2008, of 28 August;
b) Sub-paragraphs f) and h) of no. 1 and sub-paragraph a) of no. 2 of article 89 of Law no. 3/99, of 13 January, and sub-paragraph f) of no. 1 of article 122 of Law no. 52/2008, of 28 August;
c) Sub-paragraph c) of no. 2 of article 89 of Law no. 3/99, of 13 January, and sub-paragraph b) of no. 2 of article 121 of Law no. 52/2008, of 28 August.
Article 20
Entry into force
1 - The present law shall take effect from the date of establishment of the court for intellectual property and the court for competition, regulation and supervision, as provided for in the following paragraphs.
2 - The repeal of no. 5 of article 121, of no. 3 of article 122, of articles 167 and 168 of Law no. 52/2008, of 28 August, and that provided for in sub-paragraph b) of the previous article, as well as the provisions of article 89-A, inserted by article 2. of Law no. 3/99, of 13 January, and the amendment made by article 11 to article 40 of the Industrial Property Code shall take effect on the date of establishment of the court for intellectual property.
3 - The repeal of no. 4 of article 121 of Law no. 52/2008, of 28 August, and that provided for in sub-paragraph c) of the previous article, as well as the provisions of article 89-B, inserted by article 2. of Law no. 3/99, of 13 January, in article 122-A, inserted by article 5 of Law no. 52/2008, of 28 August, as well as the amendments laid out in article 1, in the part that amends no. 2 of article 89 of Law no. 3/99, of 13 January, as well as in articles 7, 8, 9, 10, 12, 13, 14, 15 and 16 and 17 of the present law, shall take effect on the date of establishment of the court for competition, regulation and supervision.
Approved on April 6th, 2011.
The President of the Assembly of the Republic, Jaime Gama.
Promulgated on May 20th, 2011.
Let it be published.
The President of the Republic, Aníbal Cavaco Silva.
Ratified on June 9th, 2011.
The Prime Minister, José Sócrates Carvalho Pinto de Sousa.
