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Update over the Portuguese recent main legal corporate amendments

Introduction

During the last semester of 2017, relevant amendments were approved under the Portuguese corporate legislation. We highlight hereunder the scope and guidelines of the most relevant legal amendments recently published.

Legal Prohibition of Bearer Shares

The issuance of bearer shares by Portuguese Companies has been prohibited since last May 4th, as it results from Law no.15/2017, published on May 3rd, 2017, in the Portuguese Official Gazette, which amended the provisions of the Portuguese Commercial Companies Code ("Código das Sociedades Comerciais") as well as the Securities Code ("Código de Valores Mobiliários").

The above mentioned law expressly prohibits the issuance of bearer shares as of May 4th, and furthermore it expressly foresees a transitory regime applicable to the existing bearer shares issued by Portuguese companies. As regards to the latest, it should be noted that the transitory regime foreseen in Law no. 15/2017, May 3rd, demands from companies the mandatory conversion of the existing bearer shares into registered shares ("ações nominativas") within the period of six months following the entry into force of the above mentioned law.

Pursuant to the new legal provisions, upon the expiry of the six months period:

  • bearer shares can't be transferred anymore and
  • the right to participate in the distribution of profits associated to bearer shares, will be suspended.

Additionally, and taking into account the six months deadline established by Law no. 15/2017, May 3rd, it is also expressly foreseen that further legal rules applicable to the above mentioned mandatory required conversion of bearer shares into registered shares shall be ruled in detail and approved by the Government within a maximum period of one hundred and twenty days from the new law's entry into force (i.e., from May 4th, 2017).

On the date this article is written, those rules applicable for conversion have not been approved nor published yet. Nevertheless we may say that it is expected that such rules will imply more detailed requirements namely regarding the Shares Registration Book or the Shares certificates.

Several companies from different industries have already requested corporate legal assistance in order to clarify them over the implications resulting from this new legal rule, as well as to start with the execution of the legal corporate actions that will have to be performed and executed in case of conversion of bearer shares into registered shares, such as amendments to the By-Laws (any and all By-Laws will have to expressly foresee the nominative nature of shares), Shares Registration Book or to the Shares certificates, to ensure that all requirements are fulfilled and furthermore that includes all data information legally required.

It should be noted that this legal amendments result from the European main goal to prevent the money laundering and terrorism financing. The above mentioned law is based on the Directive (EU) 2015/849 of the European Parliament and of the Council of May 20th, 2015, which demands from each Government member of the European Union the introduction and adoption of measures to prevent the abusive use of bearer shares or warrants on bearer shares. The bearer shares prevents and creates difficulties to the intended goal of identifying easily and clearly the ultimate beneficiary of those shares.

Prior to this legal prohibition, the issuance of bearer shares allowed shareholders of the companies incorporated as private limited companies by shares ("sociedade anónimas") to maintain their anonymity as shareholders, without prejudice of fulfilling with compliance obligation applicable to particular cases such as qualified participation, no registration regarding their identity or percentage of shares hold was required, differently from companies limited by quotas ("sociedades por quotas") that required already the disclosure of the full complete identity of each of the quota holders under the commercial registration, including the reference to the nominal value of the quotas respectively held by each of them.

Legal Regime of the Beneficial Owner Central Registry

Although at the time this article is drafted it has not been published yet, it should be noted that a Law Proposal for the Legal Regime of the Beneficial Owner Central Registry has already been approved in its general terms, unanimously, on May 11th, 2017, but it still needs to be approved in the speciality.

The need of ruling the creation of the Beneficial Owner Central Registry results from the implementation of UE Directive 2015/849 of the European Parliament and of the Council of May 20th, 2015. This UE Directive requires the creation of a data centre registration to protect sufficient, accurate and actual information regarding the actual beneficiaries of companies, legal entities, and funds.

Pursuant to the Portuguese Law Proposal, by means of the creation of the Beneficial Owner Central Registry, the Government intends to promote the identity of the natural persons who control companies or legal entities permitting the access to their identity data information and promoting and assisting the fulfilment of the obligation to prevent the money laundering and terrorism financing.

As regards to companies, they will have to mandatorily maintain an update registration of the identity data information of the shareholders/quota holders. We highlight some of the Companies registration obligations that result from the Portuguese Law Proposal that is expected to be very soon published:

  • On the incorporation date, all documents required to formalize and execute the company's incorporation will have to include the full identity of the natural person who owns, directly or indirectly, the shares or who has the effective control of the company.
  • Companies will have to maintain an updated registry with the identification data information regarding (i) the shareholders, mentioning their relevant shares; (ii) the natural persons who own, directly or indirectly, the shares and (iii) those who, by any means, have the effective control of the company.
  • The non-maintenance by a company of the mentioned updated registry will be considered an administrative offence which may give rise to the payment of a penalty that it is expected to be in the amount from € 1,000.00 up to € 50,000.00.

The Law Proposal also foresees the creation of the Beneficial Owner Central Registry ("RCBE") which shall be managed by the Portuguese Institute of Registry and Notarial Services. Companies, as well as other entities legally foreseen, will have to fulfil with reporting duties regarding their beneficial owners. The regime foresees several consequences for the non-fulfilment and non-compliance with reporting and rectification obligations.

Capital increase by means of conversion of loans granted by shareholders ("suprimentos")

Additional relevant amendments to the Portuguese Commercial Companies Code were added by Decree-Law no. 79/2017, dated from June 30th, which amends also the provisions of the Portuguese Insolvency and Corporate Recovery Code currently in force.

The amendments introduced by the above mentioned Decree-Law are part of several legal measures that have been approved by the Portuguese Government under the main goals previously defined and undertaken in order to promote the increase of the Portuguese economy plus the employment offer, as well as to reduce the high level of external debt and to promote and to develop better conditions for companies investment, which implies namely to reduce several difficulties and restrictions that companies have been recently facing and dealing with financing, either by means of resorting to loans from third parties or by using their own equity capital.

It is definitively recognized that companies' investment assumes a main role in promoting a strong and sustained recovery and increase of the Portuguese economy.

Based upon the above mentioned objectives, several measures and reforms were defined by the Portuguese Government to support companies' capitalization.

The legal provisions of Decree-Law no. 79/2017, dated from June 30th result from the execution of the "capitalization program" ("Programa Capitalizar") as part of the legal reforms and changes package previously approved by the Portuguese Government, as per the Council of Ministers' Resolution no. 42/2016, dated from August 18th.

The approved "capitalization program" corresponds to a strategic program that sustains the companies' capitalization, in order "to promote the investment and to increase the economy, aiming to promote better balanced financial structures, by means of reducing the liabilities of economically viable companies, despite having high levels of external debt, and to promote better financing conditions applicable to micro, small and medium size companies."

Bearing in mind the above mentioned objectives, we highlight as the main amendment added by Decree-Law no. 79/2017 to the current legal regime applicable to Portuguese companies:

  • The simplified mechanism and procedures created applicable to the increase of the share capital of a company by means of converting "suprimentos" (loans granted by shareholders to the company), which effectiveness is subject solely to the non-opposition of the companies' shareholders.

The new applicable legal regime foresees that any shareholder of a limited liability company (sociedade por quotas) who, individually or jointly with others shareholders, holds the majority of the voting rights that are legally required for the approval of any amendment to the company's articles of association, will be entitled to notify and to instruct the company's directors ("gerentes") to execute the increase of the company's share capital by means of the conversion of the "suprimentos" registered in the last approved Company's accounts balance sheet.

Pursuant to the applicable legal regime, the company's directors, based upon those instructions, shall notify in writing, within a maximum of ten days, any and all shareholders who have not participated nor subscribed the share capital increase, in order to inform them that the effectiveness of the increase of the share capital is subject to the non-opposition from those shareholders and which shall be executed in writing within the ten days period following the date of the above mentioned written notice provided to them, over the intended increase of the share capital by means of the loans' ("suprimentos") conversion.

The share capital shall be considered as increased on the date the management of the company represents and confirms in writing that it has been concluded and that no other contributions are required to be provided under the law, nor by the company's articles of association nor under any resolution approved.

Additionally, it is foreseen that in case of the share capital increase by means of the conversion of "suprimentos", the execution of the shareholders' contributions to the company that is legally subject to accounts audit, may be confirmed by means of a declaration issued by the accountant or the public certified accountant, representing and confirming that the relevant amount is recorded and registered in the company's accounting books, as well as its respective origin and execution date.

This declaration is subject to the filling obligation plus to the information disclosure requirements foreseen under the provisions of the Commercial Companies Code, whereas it shall be sufficient to publish the reference to the respective deposit in the commercial registry.

It should be noted that, prior to this amendment, the execution of a share capital increase by conversion of "suprimentos" required to obtain a report issued and signed by an independent public certified accountant over the credits, for purposes of verification and confirmation of the contributions, as "suprimentos" were qualified as contributions in kind, having the nature of credit rights.

Electronic minutes book

In addition, we note that Decree-Law no. 79/2017, dated from June 30th, added also amendments that intend to promote the required conditions to execute the electronic minutes book.

It is expressly mentioned and clarified that the legal required written form demanded for any and all legal corporate actions foreseen under the Portuguese Commercial Companies Code can be also fulfilled by means of replacing the written or signed documents by other means – support or identification means, such as electronic signature, – provided that such means guarantees equal levels of intelligibility and durability.

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The above mentioned legal amendments are solely part of a range of legal measures implemented by the Government in order to promote the increase and development of the national economy and investment. It is definitively recognized that it is relevant to promote simplified mechanisms for companies financing as they assume a main role in the economy development. Furthermore the prohibition of companies having bearer shares to represent the share capital plus the Beneficial Owner Central Registry provide more clearance over the full identity of their shareholders and to prevent abusive situations namely of money laundering and terrorism financing money, within the European Union policies and goals previously defined and that are intended to be fully achieved and executed.


This article provides legal general information. It is not intended nor can be considered, as a comprehensive and detailed analysis of Portuguese law or as legal advice from CTSU - Sociedade de Advogados SP, RL, SA, member of Deloitte Legal network.