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Authorizes The Government To Legislate On The Reduction Of The Share Capital Of Commercial Companies, Eliminating The Mandatory Judicial Intervention, While Integrated Measure Of Simplification Initiatives And Elimination Of Notarial Acts And Procedure...

Original Language Title: Autoriza o Governo a legislar sobre a redução do capital social de sociedades comerciais, eliminando a intervenção judicial obrigatória, enquanto medida integrada nas iniciativas de simplificação e eliminação de actos e procedimentos notariais e resgistra

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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