Judgment of the Court of Appeal of Lisbon of 9 December 2015

Cancellation of Corporate Resolution – Expiry

Pursuant article 59.2, of the Commercial Companies Code, the time limit for bringing an action to cancel a corporate resolution is 30 days, from (i) the date on which the general meeting was closed, or (ii) the third day following the date of submission of minutes of the decision taken by written vote, or (iii) the date on which the partner had knowledge of the decision, if this was on a matter that was not out on the notice of meeting. This time limit is substantive, subject to lapse of rights and, consequently, in the opinion of the Lisbon Appeal Court in the judgment in question, cannot be suspended or interrupted, not being applicable the provision set for in article 144.4 of the Portuguese Civil Procedure Code (CPP) (which corresponds to the actual article 138.4).

The same court was of the opinion that the time limit provided for in Article 373.1(a) of the CPP, which establishes that the interim order terminates and, when enacted, the injunction lapses if the claimant does not bring the action on which the injunction depends within 30 days from the date on which it was notified to the claimant that the decision ordering the injunction has been made final, is of a judicial nature, for which reason its expiry only gives rise to termination of the interim order, without any effect on the right to be examined in the main action.

Thus, because the two time limits consider different realities and specific effects, as the rules governing the lapse of injunctions is absolutely independent from the rules governing the lapse of the main action, the court concluded that outstanding injunction proceedings do not prevent the expiry of the specific substantive time limit for bringing the action for cancellation of a corporate resolution.

Judgment of the Supreme Court of 29 September 2015

Commercial Concession Agreement – Goodwill Indemnity

Being the commercial concession agreement an atypical contract, without its own substantive legal rules, its legal regulation has to be found (i) in the contractual terms adopted by the parties; (ii) in the legal provisions of typical contracts that are not exceptional and with which they present similarities; (iii) in the general rules of contract law and (iv) in the rules established for the standard contractual clauses/adhesion contracts.

Legal theory and case law, in cases justified by the similarity of the situations, have considered applicable to the commercial concession agreement, above all in connection with termination of the contract, rules governing the agency agreement, defending that on termination of a commercial concession agreement, the concessionaire can benefit from goodwill indemnity, if the relevant conditions are met, notably (i) its activity is a major factor for attracting customers, (ii) the principal will benefit, in the future, from new customers brought by the concessionaire and/or an increase in business with existing customers, and (iii) the concessionaire will no longer receive any consideration from these benefit enjoyed by the principal.

The judgment in question considered that, if the customers were not the result of special canvassing work by the concessionaire, but instead the result of the power of attraction of the brand marketed, of national and international advertising thereof, as well as of loyalty programmes launched by the principal, the concessionaire is not entitled to receive the aforementioned goodwill indemnity, once the conditions for the award of such indemnity are not met, namely the condition referred to in (i). The Supreme Court of Justice concluded that “it is not reasonable to compensate the concessionaire for what it did in the past other than to the extent that it is envisaged that this will be directly reflected, in the future, to the benefit of the principal”.