Key Benefits:
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PROPOSED LAW NO. 60 /X
Exhibition of Motives
This proposed legislative authorization bill aims to contribute to the realization
of the XVII Programme Constitutional Government in the area of Justice, putting this sector
at the service of citizens and business, economic development and promotion
of the investment in Portugal.
In effect, the Programme of the XVII Constitutional Government provides that " the citizens and the
companies cannot be burdensome with bureaucratic impositions that nothing add to
to the quality of the service ", determining yet that" in the joint interest of citizens and
of the companies, the administrative nature controls will be simplified, eliminating-
if registrations and notarial acts and practices that do not matter an added value and
hinders the life of the citizen and the company (as succeeding with the systematic duplication
of notarial and register checks). "
For that reason and for the purpose of meeting that commitment, the XVII Government
Constitutional approved a set of major relief measures such as the elimination of the
compulsory for the celebration of public scriptures in the life of companies, the elimination
of the mandatory existence and legalization of the books of the mercantile deed
of companies, the adoption of simpler modalities of dissolution of entities
commercials, including the possibility of " dissolution and liquidation of societies
business at the time " and routes of dissolution and administrative liquidation, to run along the
conservatory of commercial registration. It also approved the diplomas necessary for creation
of a simpler and cheaper regime of merger and spinoff of societies, to the enlargement of the
competencies for the authentication and presential recognition of documents by
lawyers, solicitors, chambers of commerce and industry and conservatives and the
elimination and simplification of acts of commercial registration, including the
an end to the territorial competence of the commercial register conservatives.
The present proposal for a legislative authorization bill completes this set of measures,
allowing the elimination of compulsory judicial intervention for the reduction of capital
social of commercial societies. In effect, and despite the reduction of social capital already
have been simplified by eliminating the celebration of public scripture in the
notarial carthorium, remains the mandatory intervention of the court so that such
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pretension if it can consume, which makes the process unnecessarily morose and
complex.
This proposed Legislative Authorization Act therefore pursues the same objectives and
purposes of national and collective interest, which the remaining measures already approved in the
domains of the elimination and simplification of registered and notarial acts have targeted. This is about
to promote economic development and the creation of a more favourable environment
to innovation and investment in Portugal, always with a guarantee of legal certainty and
safeguarding the legality of the measures adopted.
The necessary representations were promoted to the hearing of the Higher Council of the
Magistrate, of the Superior Council of Administrative and Fiscal Courts, of the
Top Council of the Public Prosecutor's Office, of the Order of Lawyers, of the House of
Solicitors, from the António Sérgio Institute of the Cooperative Sector and the Council of the
Officers of Justice.
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposal for a law:
Article 1.
Object, sense and extent of legislative authorization
1-The Government shall be allowed to amend the scheme of the reduction of the social capital of
commercial entities, specifically, commercial companies, civil societies under
commercial form, cooperatives and individual establishments of responsibility
limited.
2-The sense and extent of the legislative authorization granted in the preceding paragraph are
the following:
a) Elimination of compulsory judicial intervention for the reduction of social capital
of commercial entities;
b) Assignment to the conservatory of the register of skills required for
appreciate the opposition of the partners or creditors to the reduction of social capital, always
with a guarantee of judicial challenge of the decisions;
c) Determination of the competent court for the judicial challenge of the acts
practiced, in the terms of the previous number.
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Article 2.
Duration of the legislative authorization
The present legislative authorization act shall have the duration of one hundred and eighty days.
Seen and approved in Council of Ministers of February 23, 2006.
The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs
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The present decree-law aims to contribute to the realization of the XVII Programme
Constitutional government in the area of Justice, putting this sector at the service of the
citizens and businesses, economic development and promotion of the
investment in Portugal.
In effect, the Programme of the XVII Constitutional Government provides that " the citizens and the
companies cannot be burdensome with bureaucratic impositions that nothing add to
to the quality of the service ", determining yet that" in the joint interest of citizens and
of the companies, the administrative nature controls will be simplified, eliminating-
if registrations and notarial acts and practices that do not matter an added value and
hinders the life of the citizen and the company (as succeeding with the systematic duplication
of notarial and register checks). "
For that reason and for the purpose of meeting that commitment, the XVII Government
Constitutional has already approved a set of major relief measures such as elimination
of the obligatory of the celebration of public scriptures in the life of the companies, the
elimination of the mandatory existence and legalization of the books of the deed
mercantile of the companies, the adoption of simpler modalities of dissolution of
commercial entities, including a possibility of " dissolution and liquidation of
commercial societies at the time " and avenues of dissolution and administrative settlement, the
run together from the commercial register conservatoos. And also already approved the diplomas
necessary for the creation of a simpler and cheaper regime of merger and spin-off of
societies, the broadening of competences for authentication and recognition
in-line of documents by lawyers, solicitors, chambers of commerce and industry
and conservatory and the elimination and simplification of acts of commercial registration, predicting
including the end of the territorial competence of the commercial register conservatives.
Complete now this set of measures, allowing the elimination of the intervention
mandatory judicial for the reduction of the social capital of commercial corporations. With
effect, and despite the reduction of social capital has already been simplified through the
elimination of the celebration of public scripture in the notarial office, remains the
compulsory intervention of the court so that such a pretension can be consumed, the
that makes the process unnecessarily morose and complex.
For dealing with the matter of the relative competence of the Assembly of the Republic was
passed the respective legislative authorization bill, which the present Decree-law performs.
This degree proceeds, for, the same objectives and purposes of national interest and
collective, which the remaining measures already approved in the areas of disposal and
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simplification of registrations and notarial acts targeted. It is about promoting the
economic development and the creation of an environment that is more supportive of innovation and the
investment in Portugal, always with a guarantee of legal certainty and safeguard of
legality of the measures adopted.
The necessary representations were promoted to the hearing of the Higher Council of the
Magistrate, of the Superior Council of Administrative and Fiscal Courts, of the
Top Council of the Public Prosecutor's Office, of the Order of Lawyers, of the House of
Solicitors, from the António Sérgio Institute of the Cooperative Sector and the Council of the
Officers of Justice.
Thus:
In the use of the legislative authorization granted by Article 1 of the Law n. de ...., and in the
terms of the point b) of Article 198 (1) of the Constitution, the Government decrees the
next:
Article 1.
Amendment to the Code of Commercial Societies
Articles 95 and 96 of the Code of Commercial Societies, approved by the Decree-Law
n ° 262/86 of September 2, with the amendments introduced by the Decrees-Laws
n. ºs 184/87, April 21, 280/87, July 8, 229-B/88, July 4, 418/89, of
November 30, 142-A/91, of April 10, 238/91, of July 2, 225/92, of 21 of
October, 20/93, of January 26, 261/95, of October 3, 328/95, of December 9,
257/96, of December 31, 343/98, of November 6, 486/99, of November 13,
36/2000, of March 14, 237/2001, of August 30, 162/2002, of July 11,
107/2003, of June 4, 88/2004, of April 20, 19/2005, of January 18, 35/2005,
of February 17, 111/2005, of July 8, and .... they shall be replaced by the following:
" Article 95.
Deliberation of reduction of capital
1-A reduction of capital may not be deliberated if the net situation of the
society does not stand to exceed the new capital in at least 20%.
2-It is permitted to deliberate the reduction of the capital at an amount lower than the
minimum established in this law for the respective type of society if such
reduction to be expressly conditional on the actuation of increase of the
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capital for amount equal to or greater than that minimum, to be held in the 60
days following that deliberation.
3-The provisions of this law on minimum capital shall not preclude the deliberation
of reduction is valid if, simultaneously, the processing is deliberated
of the society for a type that can legally have a capital of the amount
reduced.
4-A The reduction of capital does not exonerates the partners from their obligations to
release of the capital.
Article 96.
Tutelage of creditors
1-Without prejudice to the provisions of the following number, any social creditor
may, up to 30 days after the publication of the registration, apply for the Conservatory of
competent record that the distribution of available reserves or profits
of exercise is prohibited or limited, during a period to be fixed, unless
that the applicant's credit is satisfied, if it is already chargeable, or
suitably guaranteed, in the remaining cases.
2-A faculty conferred on creditors in the preceding paragraph may only be
exercised if they have asked the society for the satisfaction of their credit
or the provision of appropriate warranty, in the previous 15 days, without your
request has been served.
3-Before the deadline has elapsed to social creditors in the figures
previous, it cannot the society carry out the distributions therein mentioned,
valendo the same prohibition from knowledge by the society of the
application from some creditor. "
Article 2.
Amendment to the Code of Commercial Registration
Articles 3 of the Code of Commercial Registration, approved by the Decree-Law No. 403/86,
of December 3, with the amendments introduced by the Decrees-Leis n. ºs 7/88, 15
of January, 349/89, of October 13, 238/91, of July 2, 31/93, of February 12,
267/93, of July 31, 216/94, of August 20, 328/95, of December 9, 257/96, of
December 31, 368/98, of November 23, 172/99, of May 20, 198/99, of 8 of
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June, 375-A/99, of September 20, 410/99, of October 15, 533/99, of 11 of
December, 273/2001, of October 13, 323/2001, of December 17, 107/2003, of 4
of June, 53/2004, of March 18, 70/2004, of March 25, 2/2005, of January 4,
35/2005, of February 17, 111/2005, of July 8, and .... goes on to have the following
wording:
" Article 3.
[...]
1-Are subject to registration the following facts relating to societies
commercial and civil societies in commercial form:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) [...];
i) [...];
j) [...];
l) [...];
m) [...];
n) [...];
o) [...];
p) The project of merger and division of societies;
q) [...];
r) [...];
s) [...];
t) [...];
u) [...];
v) [...];
x) [...];
z) [...].
2-[...].
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3-[...]. "
Article 3.
Amendment to the Code of Civil Procedure
Article 1487 of the Code of Civil Procedure, approved by the Decree-Law No. 44129, of
December 28, 1961, changed by the Decrees-Leis n. the
47690, of May 11 of
1967, and 323/70, of July 11, by the Portaria No. 439/74 of July 10 by the Decrees-
Laws n. the
261/75, of May 27, 165/76, of March 1, 201/76, of March 19,
366/76, of May 5, 605/76, of July 24, 738/76, of October 16, 368/77, of 3
of September, and 533/77, of December 30, by Law No. 21/78 of May 3, by the
Decrees-Laws n. the
513-X/79, of December 27, 207/80, of July 1, 457/80, of 10
of October, 400/82, of September 23, 242/85, of July 9, 381-A/85, of 28 of
September, and 177/86, of July 2, by Law No. 31/86, of August 29, by the Decrees-
Laws n. the
92/88, of March 17, 321-B/90, of October 15, 211/91, of July 14,
132/93, of April 23, 227/94, of September 8, 39/95, of February 15, 329-A/95,
of December 12, 180/96, of September 25, 375-A/99, of September 20, and
183/2000, of August 10, by Law No. 30-D/2000 of December 20 by the
Decrees-Laws n. the
272/2001, of October 13, and 323/2001, of December 17, by
Law No. 13/2002, of February 19, and by the Decrees-Leis n. the
38/2003, of March 8,
199/2003, of September 10, and 324/2003, of December 27 and by the Law ....., passes the
have the following wording:
" Article 1487.
Opposition of partner to the reduction of capital
1-In the 30 days following the publication of the registration of the reduction of capital,
may any dissident partner deduct opposition to the reduction.
2-If any opposition is admitted, it is notified to society for
respond. "
Article 4.
Amendment to the regime of the individual establishment of limited liability
Article 20 of the regime of the individual establishment of limited liability,
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approved by Decree-Law No. 248/86 of August 25, with the amendments introduced
by the Decrees-Leis n. ºs 343/98, of November 6, 36/2000, from 14 and March, and .... passes
to be replaced by the following:
" Article 19.
Reduction of capital
1-After the reduction of capital, the net situation of the establishment has to
exceed the new capital by at least 20% percent.
2-If the reduction of capital target only the cover of losses, the capital
may be reduced to an amount lower than the minimum set out in Article 3,
not producing the reduction effects while no increase is made
of the capital that elects it to the minimum required.
3-Without prejudice to the provisions of the following number, any creditor of the
individual establishment of limited liability can, up to 30 days
after the publication of the registration, apply for the competent registration of registration
that it be vetted to the holder to withdraw from the establishment any monies
coming from the reduction, or title of available reserves or profits,
during a period to be fixed, unless the applicant's credit is
satisfied, if it is already required, or adequately guaranteed, in the remaining
cases.
4-A faculty conferred on creditors in the preceding paragraph may only be
exercised if these have requested the establishment the satisfaction of their
credit or the provision of appropriate warranty, in the previous 15 days, without that
your request has been met.
5-The holder of the establishment shall be subject to the prohibition referred to in paragraph 3 a
from the day on which to take notice that some creditor required the
providence there indicated. "
Article 5.
Administrative procedure for reducing capital
1-Any social creditor who intends to obster to the distribution of available reserves or
of profits from the financial year, must apply for the competent register conservatory, in the 30 days
subsequent to the publication of the registration of the reduction of capital, which determines the prohibition or
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limitation of those distributions by the society, during a period to be fixed, unless
that your credit is satisfied, if it is already chargeable, or adequately guaranteed, in the
remaining cases.
2-For the purposes of the preceding paragraph, the creditor shall make proof of the existence of its
credit and that it has asked the society for the satisfaction of this or the provision of guarantee
appropriate, in the previous 15 days, without your request being serviced.
3-A The decision of the Conservative is notified to the applicant and to the society and, in the event of
dewound, averaged, officiously, to the record of this.
4-Without prejudice to the provisions of the following number, the decision of the conservative is
challenge pursuant to Articles 101 and following of the Commercial Register Code.
5-A Judicial challenge of the decision to dismiss has suspensive effect.
6-In case of non-compliance, on the part of the society, of the decision of the conservative,
all of its managers respond, sympathetic and unbounded, by the credit of the
applicant.
Article 6.
Abrogation standard
They are revoked:
a) Article 1487-A of the Code of Civil Procedure, approved by the Decree-Law
n. 44129 of December 28, 1961;
b) Article 20 of the regime of the individual establishment of responsibility
limited, approved by Decree-Law No. 248/86 of August 25.
Seen and approved in Council of Ministers
The Prime Minister
The Minister of Justice