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NEWSLETTER I CORPORATE LAW
CONTENTS
CORPORATE LAW NEWSLETTER I 4TH QUARTER 2017
I AMENDMENT TO LEGAL FRAMEWORK OF ARI (RESIDENCE PERMIT FOR INVESTMENT ACTIVITIES)
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II NATIONAL LEGISLATION
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III NATIONAL CASE LAW
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CORPORATE LAW NEWSLETTER
I AMENDMENT TO LEGAL FRAMEWORK OF ARI (RESIDENCE PERMIT FOR
INVESTMENT ACTIVITIES)
Law no. 102/2017, of 28 August makes the fifth amendment to Law no. 23/2007 of 4
July, which approves the legal framework for the entry, permanence, exit and removal of
foreigners into and out of national territory and transposes Directives 2014/36/EU of 26
February, 2014/66/EU of 15 May 2014 and 2016/801 of 11 May 2016.
With regard to legal framework of ARI, the aforementioned Law no. 102/2017 of 28
August, introduces a significant change in the type of investment eligible, consisting of
the transfer of capital amounting to 500,000 euros or more, intended for the acquisition
of investment or venture capital fund units aimed at the capitalisation of small and
medium-sized enterprises that, for this purpose, have submitted a demonstrably viable
capitalisation plan, as previously provided for, now amended as follows:
Capital transfer of at least 350,000 euros, intended for the acquisition of
investment or venture capital fund units aimed at the capitalisation of companies,
incorporated under Portuguese law, whose maturity, at the time of investment, is
at least five years and which have at least 60% of the investment value
implemented in companies headquartered within national territory;
In other words, this type of investment will now focus on the acquisition of units of a
value equal to €350,000 or more in securities investment and/or venture capital funds
legally set up in Portugal, whose investment policy consists of the acquisition of equity or
the purchase of companies’ subordinated debt, at least 60% of the Fund’s investments to
be made in companies based in Portugal. It is also to be noted that, at the time of
acquisition of the fund units by the investor applying for ARI, it is necessary for the Fund
issuing such units to also have a maturity period of at least five years before the period
of disinvestment.
In addition to this amendment, a new type of investment eligible for ARI was introduced:
Transfer of capital of at least 350,000 euros, intended for the setting up a
company with registered office at within national territory, in conjunction with the
creation of five permanent jobs, or for reinforcement of the share capital of an
existing company with registered office within national territory, with the creation
or continuation of jobs, with a minimum of five permanent jobs and for a
minimum period of three years.
ARI is granted to citizens of third countries (outside the EU) after they have made one of
the eligible investments provided for in the Law and complied with other legal
requirements, for an initial period of one year, renewable for successive two-year
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periods, if the requirements for granting the permit remain in place and the holder
demonstrates that they have remained within national territory for the minimum periods
required by law (7 days in the first year and 14 days during the periods corresponding to
subsequent renewals), granting the holder the following entitlements:
Permission to reside in Portugal;
Free access to the Schengen Area with no need for a visa;
Right to Family Regrouping;
Possibility of working in Portugal with no need for a work visa and/or starting and
developing their own business in Portugal;
Access to the health and education system on the same terms as Portuguese
citizens;
Access to justice;
Possibility of applying for a permanent residence permit after 5 years of holding
an ARI;
Possibility of applying for Portuguese nationality by naturalisation after 6 years of
holding an ARI.
II NATIONAL LEGISLATION
Law no. 109/2017 - Diário da República no. 227/2017, Series I of 2017-11-24
Reduces potential conflicts of interest and reinforces the criteria for assessment of standing,
making the forty-fifth amendment to the Legal Framework of Credit Institutions and Financial
Companies, approved by Decree-Law no. 298/92, of 31 December.
Resolution of the Assembly of the Republic no. 256/2017 – Diário da República no.
225/2017, Series I of 2017-11-22
Recommends the revision of the legal framework for gold and silver working and assayers.
Ordinance no. 344/2017 - Diário da República no. 218/2017, Series I of 2017-11-13
Defines, pursuant to the provisions of Article 60.2(c) and Article 89.4 of Law no. 23/2007 of
4 July, as amended by Laws nos. 29/2012 of 9 August, 56/2015 of 23 June, 63/2015 of 30
June, 59/2017 of 31 July and 102/2017 of 28 August, the certification system provided for
therein of incubator centres to receive foreign entrepreneurs intending to develop an
entrepreneurship and/or innovation project in Portugal.
Resolution no. 988/2017 - Diário da República no. 216/2017, Series II of 2017-11-09
Law for Preventing and Combating Money Laundering and Terrorism Financing - Procedures
pertaining to compliance with the obligation to disclose the start of business and the real
estate transactions concluded.
CUATRECASAS A AA A Ordinance no. 333-B/2017 - Diário da República no. 212/2017, 2nd Supplement of 2017-1113 Ordinance that regulates the New Legal Framework for Gold and Silver Working and Assayers, approved by Decree-Law no. 120/2017 of 15 October.
CMVM Regulation no. 3/2017 – Diário da República no. 200/2017, Series II of 2017-10-17 Law no. 69/2017, of 11 August regulate debt recovery funds. The regulation develops the system provided for in this Law, establishing the contents and format of the document with fundamental information intended for potential unit holders.
Decree-Law no. 126-C/2017 - Diário da República no. 193/2017, 1st Supplement, Series I of 2017-10-06 Creates the 200M Coinvestment Fund.
Decree-Law no. 120/2017 - Diário da República no. 179/2017, Series I of 2017-09-15 Amends the legal framework for gold and silver working and assayers, approved by Law No. 98/2015, of 18 August. III NATIONAL CASE LAW
Judgment of the Constitutional Court, 1st Section, Judgment no. 771/2017 of 16 November, Case no. 225/2017, Rapporteur Mª DE FÁTIMA MATA-MOUROS The provision that establishes that the application from the provisional court-appointed administrator requesting the insolvency of the debtor must imply the debtor’s recognition of its insolvency situation and exemption from its hearing, is unconstitutional.
The provision that establishes that, once the insolvency of the debtor has been requested by the provisional court-appointed administrator, the provisions of Article 28 of the CIRE, mutatis mutandis, must immediately apply, in other words, the application from this administrator requesting the debtor’s insolvency must imply its recognition of its situation of insolvency and the exemption from its hearing, interpretatively arising from Article 17-G.4 of the CIRE, is deemed unconstitutional.
Indeed, by making the application for insolvency of the debtor equivalent to its application for insolvency and by advancing the insolvency procedure towards a declaration to be submitted within a very brief time limit, the legislature prevented any possibility of the debtor raising in court the facts and the reasons that could lead to a different conclusion with regard to its insolvency situation.
CUATRECASAS A AA A This is accompanied by other limitations that may arise for the debtor from application submitted by the provisional court-appointed administrator, namely rejection of the possibility of the debtor administrating the insolvent estate and of requesting exoneration from the remaining debt.
Under these terms, this interpretation represents a restriction on the fundamental right to defence in court, not guaranteeing the debtor a defence of its position by means of an equitable process.
Judgment of the Court of Appeal of Coimbra, of 17 October 2017, Case no. 2582/17, Rapporteur ARLINDO OLIVEIRA The resolution by which the members of statutory boards of a public limited company were elected being suspended, they shall remain in office and may call the general meeting of shareholders.
As there is no legal regulation for termination of the office of the chair of the presiding board of the general meeting, the extensive interpretation of the rule that determines that administrators remain in office until new appointments are made shall apply.
Thus, following the suspension of the resolution by which the members of statutory boards of a public limited company, namely the chair of the presiding board of the general meeting, were elected and no others having been elected in their place, they shall remain in office and, in the performance of their duties, they may call the general meeting of shareholders.
Judgment of the Court of Appeal of Évora, of 12 October 2017, Case no. 503/12, Rapporteur MOISÉS SILVA The employer and the company in a relationship of reciprocal participation, controlling or group relationship are jointly and severally liable for debts to employees, outstanding for more than three months.
Accordingly, a group company means a company that, directly or through other companies, totally controls another company, there being no other shareholders, and forms a group with the second company.
However, considering that the private limited company owns the entirety of the share capital of the employer company, which is also a private limited company, the first company is jointly and severally liable for debts to employees, outstanding for more than three months. Indeed, its joint and several liability with the employer company is not based on the fact that the shareholders are the same in the two companies, but instead on the group relationship existing between the two companies.
CUATRECASAS A AA A Judgment of the Court of Appeal of Lisbon, of 28 September 2017, Case no. 449/11, Rapporteur ANABELA MOREIRA DE SÁ CESARINY CALAFATE A lack of information that is not of significance for decision-taking shall not be a ground for annulment.
Resolutions not preceded by the provision of minimum information to a partner are subject to annulment, however, if the lack of information has no significance for decision-taking, such omission shall not be a ground for annulment.
In this case, as it was no claimed that the information requested by letter was necessary for a vote on the decision on redemption of the shares of one of the shareholders, and indeed no document in question would provide any information clarifying his use of a credit card to withdraw cash and make direct payments of personal expenses, in addition to the fact that it was not claimed at any time that the respondent company had determined in writing the possibility of making such use thereof, such omission shall not be a ground for annulment.
Judgment of the Court of Appeal of Guimarães, of 28 September 2017, Case no. 1396/14, Rapporteur MARIA DOS ANJOS SOUSA MELO NOGUEIRA The joint owner of the private share, being neither common representative nor administrator of an estate, may not exercise duties associated with the private share, for which reason they may not bring any proceedings to challenge corporate resolutions.
The joint owners of a private share must exercise the rights associated with that share through a common representative and that common representative, when not appointed by law or testamentary disposition, is appointed and can be dismissed by the joint owners, the decision of the joint owners being taken by a majority thereof.
Accordingly, the joint owner of a private share, not being a common representative nor administrator of an estate, may not, him or herself, exercise the rights associated with the private share. In the present case, the plaintiff is a joint owner of two private shares in the company, which she received through a bequest from her late father, who left these private shares jointly and in equal parts and as part of the elective share of his estate to her and her brother.
However, the right to a declaration of cancellation of corporate resolutions that the plaintiff seeks to exercise cannot be exercised by each of the joint owners considered individually, for which reason there is an illegal situation that prevents judgment on the merits of this case.
