APPOINTMENT OF DIRECTORS
According to the Portuguese Companies Code (“CSC”), directors can be appointed in the articles of association or elected by the general or constituent meeting. The director appointed by the State or by a public entity equated to it by law for this purpose, is nominated in accordance with the respective legislation.
The CSC provides for the possibility to estipulate in the articles of association that the election of directors shall be approved by votes corresponding to a specific percentage of the share capital or that the election of some of the directors, not exceeding on e third of the total, shall also be approved by for the election of directors to be approved by a majority of votes granted to certain shares. However, it is expressly forbidden to grant the right to appoint directors to certain types of shares.
Regarding the duration of the mandates of the appointed directors, the law specifies that such duration, which should not exceed 4 (four) calendar years – taking into account that the calendar year during which the directors are assigned is counted as a full year -, can be stipulated in the articles of association. Nonetheless, when such duration is not stipulated in the articles of association, it is understood that the appointment of directors is made for four calendar years with the possibility of re -election.
Although the directors are appointed for a fixed term, when such term is completed, they shall remain in office until the appointment of new directors, except in the following cases: (i) judicial appointment of company directors, with the existing directors in office until the date of such appointment; (ii) removal, at any moment and with immediate effect (unless decided otherwise), of any of the members of the board of directors by resolution of the general meeting; and (iii) resignation of one of the directors, which will only take effect at the end of month following the month in which it was communicated, unless an alternate is elected or appointed.
SPECIAL RULES FOR THE ELECTION OF DIRECTORS
The articles of association stipulate that, for a number directors not exceeding one third of the total, an isolated election, among people listed in proposals subscribed by groups of shareholders, takes place as long as none of such groups holds shares representing more than 20% or less than 10% of the share capital.
Nevertheless, if the election system mentioned in the previous paragraph is stipulated in the articles of association, the general meeting will not be able to (unless the respective lists are not submitted) carry out the election of other directors while the number of directors provided for in the articles of association for such purpose has not been elected.
It is also possible to provide in the articles of association the right of a minority of shareholders, representing at least 10% of the share capital and which has voted against the winning proposal in the election of directors, to appoint at least one director.
The election of such directors is carried out between shareholders who voted against the winning proposal, in the same meeting, and the elected directors automatically replace the least voted people in the winning list or, in the event of a split vote, replace the person placed last in the list.
REPLACEMENT OF DIRECTORS
The replacement of a director takes place in a situation of definitive absence of the director and shall proceed in the following terms: (a) by the calling of alternate s by the president, in accordance with the order in which they appear in the list submitted to the shareholders general meeting; (b) when no alternates exist, by co-optation, unless the directors in office are not sufficient in number for the board to be ab le to operate; (c) if co-optation has not taken place within 60 (sixty) days from the absence, the supervisory board or the audit committee shall appoint a replacement; and (d) by election of a new director.
The co-option as well as the appointment by the supervisory board or by the audit committee shall be submitted for ratification in the first following general meeting.
The replacements made on the basis of the director’s definitive absence last until the end of the period for which the replaced directors were elected for. There will only be temporary replacements in case of suspension of directors.
In the absence of a director elected under the special rules mentioned above, the same is replaced by the respective alternate, and if there isn’t a alternate, a new election takes place, and the special rules, with the necessary adaptations, apply.
APPOINTMENT OF COMPANY DIRECTORS BY THE COURT
Any shareholder may request the appointment of a company director by the court, until the new board is elected:
- In situations when has not been possible to gather the board of directors for more than 60 days, because there are not enough effective directors and the replacements have not taken place; and
- When more than 180 (one hundred and eighty) days occurred from de expiry of the period for which the directors were elected for, without having occurred a new election
In this context, the director appointed by the Courts starts to manage the company as a sole director and the remaining directors end their function upon the judicial appointment.