Key Benefits:
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PROPOSED LAW NO. 133 /X
Exhibition of Motives
The present proposed legislative authorization bill seeks to authorize the Government to adapt the
general regime of counter-ordinations in the context of the transposition of Directive n.
2004 /39/CE, of the European Parliament and of the Council of April 21, 2004 on the
Markets for Financial Instruments (henceforth 'DMIF'), of Directive n.
2006 /73/CE of the Commission of August 10, 2006 implementing Directive n.
2004 /39/CE of the European Parliament and of the Council, of April 21, 2004, in what it says
respect to the requirements in relation to the organization and the conditions for the exercise of the
activity of investment firms, of Directive No 2004 /109/CE of Parliament
European and of the Council of December 15, 2004 on the harmonisation of
transparency requirements with regard to the information relating to issuers
whose securities are admitted to trading on a regulated market
(henceforth 'the Transparency Directive') and Commission Directive No 2007 /14/CE,
of March 8, 2007, which sets out the standards for the execution of certain
provisions of Directive No 2004 /109/CE.
Too much, it is harnessed the ensejo to authorize the Government to set limits on the
exercise of the consulting activities for investment in instruments
financial, of regulated market management, of trading systems
multilateral, clearinghouse, assumption of responsibility from
central, system of settlement and centralized system of values
securities and supply with the public or marketing of contracts relating to the
investment in tangible goods, and to adapt the general regime of counter-ordinations to the
specifics of the latter activity.
Directive No. 2004 /39/CE, on Markets in Financial Instruments constitutes
a community text of vinced importance. For the adoption of this new framework
normative emanating from the DMIF, as well as from that of the Directive of the
Transparency, will proceed to the amendment of the Code of Securities,
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approved by the Decree-Law No. 486/99 of November 13 of the General Regime of the
Credit Institutions and Financial Societies, approved by the Decree-Law No. 298/92,
of December 31, of the Code of Commercial Societies, approved by the Decree-Law
n. 262/86 of September 2 and of the Legal Regime of Brokerage Corporations and
Brokerage Financial, approved by the Decree-Law No. 262/2001, of 28 of
September. The legal regime of market-holding companies will be further changed and
systems, approved by the Decree-Law No. 394/99 of October 13, as amended by the
Decree-Law No 8-D/2002 of January 15 and approved the legal Regime of the
Consulting societies for the Investment.
The transposition of the DMIF is marked by the definition of a detailed framework of the
conditions of authorisation and exercise of business by the investment companies,
regulated markets and multilateral trading systems, seeking to stimulate the
competition between different markets, systems and means of execution of transactions
on financial instruments, thus contributing to greater integration of the
capital markets at the community level. Simultaneously, a set is established
of measures that aim to strengthen investor protection, ensure transparency and
integrity of transactions carried out on the different financial instruments and
improve the conditions for the exercise of the Community passport in respect of the provision
of investment services.
Within the framework of the organisational requirements and standards of conduct applicable to
financial intermediaries, it is important to point out, by their relevance, the new regime of the
execution of orders, by making impending on the financial intermediary both the duty
to adopt a policy of execution of orders, such as the burden of demonstrating that
has executed the orders of a given investor in accordance with the same (" best execution ").
Too much, it is required that the financial intermediary disclose to each client his / her policy
of execution of orders and that, where there is a possibility of execution outside of
a regulated market or a multilateral trading system, obtain the
prior and express consent of the customer.
In this chapter you take the opportunity to let yourself be required to require the intermediaries
financial for the registration of items already subject to registration with the Bank of Portugal,
passing this to make such a register available to the Stock Market Commission
Securities (CMVM), which benefits the simplification of procedures
administrative. Still in the chapter of records, the rule of the tacit dewound passes the
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tacit dismissal in consonance with the prevailing regime for other authorisations and
records in matter reaching institutions of the securities market.
The implementation of the DMIF implies, likewise, an enlargement of the set of
investment activities and services and the corresponding ancillary services that
cover the inclusion, in investment services, of consultancy for investment in
financial instruments, which leaves, thus, to be understood as ancillary service,
by forcing the entities that provide it to take over the nature of a company from
investment or duly authorized credit institution.
The DMIF still substantially changes the framework of instrument trading
financial, proceeding to a new organization of the spaces and organizations of
negotiation of these instruments. The rule of concentration of the execution of orders in
regulated markets, possible in the Directive on Investment Services,
it cees to be imposed, opening up to the competition between different spaces and means
of execution of the orders, recognizing the DMIF in parallel to the markets
regulated, two other alternative means of negotiation: the systems of
multilateral negotiation and systematic internalization. The aim is to offer the
investors a higher quality in the execution of their orders, either by way of reduction
of transaction costs, whether by means of more demanding mechanisms in the formation of the
prices that will result from a regime of greater transparency and competition among the
different participants in the process of price formation.
As a result of the exposed, another new activity that results from the transposition of the
DMIF is the management of multilateral trading systems.
Multilateral trading systems define themselves as systems that enable the
clash of interests sellers and buyers with respect to securities,
with a view to their negotiation, functioning on the basis of clear rules and not
discretizations. On the other hand, systematic internalization consists of the negotiation by
own account carried out in execution of investors ' orders, in an organised manner and
systematic. A set of provisions will be devoted to the conduct of the
systematic internalizers, namely, information duties on prices and
conditions in which they can update or withdraw their respective price offers. The
regulation of systematic internalisation, in line with the Directive, only covers cases
of negotiation of shares.
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Already in what concerne the Transparency Directive, the main objectives consist ( i )
in improving reporting practices of financial information by issuers ' companies,
upon the duty of preparation and dissemination of an annual report; ( ii ) in the
improvement of the provision of financial information of an interim nature; ( iii ) in the
improvement of the rules relating to the disclosure of the acquisitions or disposals of
significant percentage of voting rights in the companies concerned; and ( iv ) in the
removal of barriers to cross-border investment constituted by the disabled
dissemination of the relevant information relating to corporate issuers of values
listed securities.
The proposed normative modifications are aimed at, the main title, to respect the
minimum harmonisation that the Directive supposes. Without prejudice, it remains subject to duty
of communication the exceeding of the 2% threshold of voting rights in societies
open, but limited to cases in which the statutes of the societies impose limits on
vote.
Too much, a distinction is sought in the regime of the information duties between, of a
side, small and medium-sized enterprises and, on the other hand, large enterprises
admitted to trading on regulated market-having as criteria
differentiators those used in Art. 413 (2) Code of Societies
Commercials. These latter companies remain subject to the provision of information
quarterly, while in relation to small and medium-sized enterprises consider themselves
sufficient the provision of interim information of the administration, in terms more
simplified.
In the optics of the utmost speed and transparency in the accountability, it determines
yet issuers of securities issuers are required to disclose the
their annual accounts within four months after the end of the financial year,
regardless of whether or not they have already been approved by the competent body.
It has also defined the minimum content of the half-yearly reports and the conditions in which
if it considers that the law of a third country is equivalent to the vicar in the national territory
to dismiss the issuer from releasing additional information.
The communication of qualified participations benefits from some simplification, in the
measure in which the participant cede is obliged to inform about the percentage
of voting rights calculated by having present the own shares of the company-
information that it may not have in updated terms.
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With respect to the dissemination of information, the diploma that comes to be approved of the
shelter from the present proposal for legislative authorization keeps on the essentials the system of
dissemination through the system maintained by the CMVM, without prejudice to issuers
be able to use other means of dissemination. The system of spreading information
maintained by the CMVM is also used for the storage of information
disclosed by issuers.
Another of the future changes covered by the present initiative is the amendment to the scheme
legal of the managing entities of markets and systems, approved by the Decree-Law
no 394/99 of October 13 with the amendments introduced by the Decree-Law
n 8-D/2002, of January 15.
Since soon this amendment comes to include in the scope of the diploma the new
societies constituted for the exclusive management of multilateral trading systems,
well as well as the societies which, following the amendment to Article 268 of the Code
of the Securities, they pass on to be able to autonomously pursue the activity of
clearing house management and the assumption of counterparty responsibilities
central. In what concerne the object of the managing entities of markets
regulated, came, on the one hand, to include in its scope the management of system of
multilateral trading and, on the other hand, to exclude the possibility of accumulating the
settlement system management activity, being the other purpose in this second
change the risk segregation between both functions.
Fundamental is still the change in the regime of the allowable holdings in the capital of the
managing entities of regulated markets, which cees to be based on the typification
of the legitimated entities to acquire shares of those entities to become the fundar
in a regime of monitoring the suitability of who intends to acquire a stake
qualified.
A guarantee of continuity of the markets is also expressly enshrined
regulated, for a transitional period, when from their extinction it may result in injury
serious for the national economy or for issuers, market members or
investors.
Particularly innovatory is the consecration of a legal regime applicable to the
companies that have the exclusive object of the provision of the consulting service for
investment in financial instruments and the reception and transmission of orders by
care account concerning those.
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The scheme now considered to be without prejudice to the maintenance of a figure entirely
regulated by domestic law-the consultants for investment dedicated to consultancy
for investment in securities.
However, considering that the consultancy for investment in instruments
financial becomes qualified as a main investment activity and that only
investment firms or duly authorized credit institutions will be able to
develop, on a cross-border basis, such activity, the present regime has been defined
in terms that allow to ensure that the entities wishing to exercise that
activity meet the necessary requirements that allow them to qualify as
investment firms and thus benefit from the designated community passport.
These societies will be able to adopt the form of joint-stock or society by
quotas, in this way allowing for the larger or smaller complexity of the structure
business if it can reflect in the adopted societarium type.
It is signed that investment advisory companies are subject to an
prior authorization regime, substantiated in a single act of registration to be carried out
together with the CMVM, to whom it is thus assigned competence to supervise such
societies also under the prudential point of view.
Still within the framework of this proposed legislative authorization bill falls to
regulation of public marketing of trading schemes aimed at the
investment in tangible goods-such as stamps, works of art and antiquities. The offer
of these services is not subject to the supervision of any of the authorities
regulators of the financial markets, circumstance that leads to investors
in this type of investment contracts have a level of protection that is not the
appropriate in the face of the nature and risks that these products generally behave. The
theme lacks, thus, reassessment, attentive to the apparent need for intervention
normative, be it through measures aimed at strengthening the quality of information
on these products, be clarifying and ensuring the suitability of the relationship
contractual between the parties, whether it is still through the implementation of measures
provided with supervision and sanctionatory regime.
In this context, it is considered appropriate to establish a legal regime applicable to the
business of marketing of goods or services allocated to investment in goods
corpoles directed specifically to persons with a residence or establishment in
Portugal. Excepted, of course, of this scheme the investment funds
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real estate, the special investment bodies and the managing societies of
heritage that is governed by special legislation.
Because the subjects in which the exercise of the supervision of these products is to be concentrated
and of the respective marketer entities have as the main determinant risks
of behavioral nature, to better ensure its effectiveness and efficiency, is ascribe
competence to the CMVM, given its experience in this type of supervision.
In effect, we are in the face of this type of contracts where the offer or the
marketing of the same implies the receipt of funds from the public for the
investment, on account of customers, in those goods or in rights on them, targeting the
your profitability or valorisation and subsequent delivery to the participant of part or of the
totality of it.
The future regime to be approved will discipline, in the protection of investors, the
range of operations and mentions vindicated in the pursuit of investment policy, the
pre and post contractual requirements and, additionally, the rules to which the entities that
make available stay linked as to the safety and segregation of the owned goods
to customers. It is also circumscribing this activity only to public limited companies,
who are required to have organized accounting and subject financial statements
the legal certification of accounts. They are obligated, finally, the entities that exercise that
supervisory function to communicate to the CMVM related facts, morally, with the
detection of irregularities or which may be likely to affect the continuity of the
exercise of the activity by the entities marketing tangible goods.
It is also expected that the CMVM will disclose a list of the entities that exercise this
activity, imping, for the purpose, notification duties to the CMVM in advance to the
beginning of activity and still duties of later information relating to the activity
developed by these entities. They will also be devoted to the CMVM for
regular and supervise the exercise this activity and fixed the respective scheme
sanctionatory.
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:
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Article 1.
Legislative authorization
The legislative authorization is granted to the government for:
a) Amend Section I of Chapter II, Title VIII of the Code of Values
Securities to predict the counter-ordinational framework of new
duties consisting of force of transposition into the legal order of:
i) Directive No. 2004 /39/CE of the European Parliament and of the Council, 21
of April 2004, concerning the markets for financial instruments, which
changes the Council Directives 85 /611/CEE and paragraph 93 /6/CEE of the Council and the
Directive No 2000 /12/CE of the European Parliament and of the Council and which
repeal Council Directive No 93 /22/CEE amended by the Directive
n. 2006 /31/CE of the European Parliament and of the Council of April 5 of
2006, with regard to certain deadlines;
ii) Commission Directive No 2006 /73/CE of August 10, 2006, which
applies Directive No 2004 /39/CE of the European Parliament and of the Council,
with regard to the requirements in respect of organisation and the
conditions for the exercise of the business of investment firms and the
concepts defined for the purposes of the said Directive; and
iii) Directive No. 2004 /109/CE of the European Parliament and of the Council, 15
of December 2004, concerning the harmonisation of the requirements of
transparency with regard to the information relating to issuers
whose securities are admitted to trading in a market
regulated and amending Directive No 2001 /34/CE;
iv) Commission Directive No 2007 /14/CE of March 8, 2007, which
sets out the standards for the implementation of certain provisions of the
Directive No 2004 /109/CE on the harmonisation of the requirements of
transparency with regard to the information relating to issuers
whose securities are admitted to trading in a market
regulated.
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b) Establish, in the Code of Securities, the connection against-
ordering with the regimes of the financial instruments, of the forms
organized trading of financial instruments, of the compensation, of the
central counterparty, of the credit securitisation companies, of the contracts
of insurance linked to investment funds, of the contracts of accession
individual to open pension funds, from the advertising regime relating to
any of the subjects referred to in the above points, from the managing entities
of multilateral trading systems and the chamber managing entities of
compensation and central counterparty;
c) Update some of the sanctionatory standards integrated into the Code of
Securities;
d) Setting limits on the exercise of consulting activity for investment
in financial instruments by investment company;
e) Setting limits on the exercise of market management activities
regulated, of multilateral trading systems, of chamber of
compensation, of the assumption of central counterparty responsibilities, and of
settlement and centralized system management system management
securities;
f) To establish limits on the exercise of the marketing activity of goods or
services allocated to investment in tangible goods;
g) Creating the illicit ones of mere social ordering and the general rules, of nature
substantive and procedural, which prove to be appropriate to ensure respect for the
legal and regulatory standards that discipline the activity of
marketing of goods or services allocated to investment in goods
corposrees;
h) Change the cast of the prerogatives of the Bank of Portugal, in the framework of
counterordinational procedure, allowing, where this is necessary to
process enquiries or instruction, the seizure and freezing of
any values, regardless of the place or institution in which if
find.
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Article 2.
Sense and extent of legislative authorization as to the prediction of standards
sanctionatory
1-In the use of the legislative authorization conferred by the previous article, may the Government
define as very serious counterordinance, punishable between € 25000 and € 2500000:
a) The lack of sending information to the system of spreading information
organized by the Securities Market Commission (CMVM);
b) The omission of communication or disclosure of qualified participation in
open society;
c) The creation, maintenance in operation or the management of a form
organised by negotiation, suspension or closure of its business
out of cases and terms provided for in law or regulation;
d) The operation of regulated market or trading system
multilateral in accordance with rules not registered in the CMVM or not
published;
e) The lack of provision to the public, by the managing entities of markets
regulated and multilateral trading systems, of the information to which
are obliged;
f) The admission of members of a regulated market or of a system of
multilateral trading by the respective managing entity, without the requirements
required by law or regulation;
g) The lack of disclosure of the required information, by the issuers of values
securities traded on a regulated market or by whom it has
applied for admission to trading on regulated market of values
securities without the consent of the issuer;
h) The carrying out of operations in a given regulated market or system of
multilateral trading, on financial instruments, not admitted to the
trading in that market or not selected for trading in that
system or suspense or excluded from the negotiation;
i) The exercise of the functions of clearing house and central counterparty outside
of the cases and terms provided for in law or regulation, in particular the exercise
by unauthorized entity for the purpose;
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j) The operation of clearing house and central counterparty of agreement
with rules not registered in the CMVM or not published;
l) The carrying out of operations on the following financial instruments without the
central counterparty interposition:
i) The options, the futures, the swaps , the fixed-term contracts on interest rates;
ii) Any other derivative contracts relating to:
-Securities, foreign exchange, interest rates or surrenities or
relative to other derivative instruments, financial indices and
financial indicators, with physical or financial settlement;
-Goods, climate variables, freight fares, emission allowances,
inflation rates or any other official economic statistics,
with financial settlement still that by option of one of the parties;
-Goods, with physical settlement, provided that they are traded on
regulated market or in multilateral trading system or,
not intended for commercial purpose, have analogous characteristics
to those of other financial instruments derived pursuant to Rule 38.
of the Commission Regulation (EC) No 1287/2006 of August 10;
iii) Any other derivative contracts relating to any of the elements
indicated in Article 39 of Regulation (EC) No 1287/2006 of the Commission,
of August 10, as long as they have characteristics analogous to those of others
financial instruments derived under Article 38 of the same
diploma;
m) The violation, by entity that takes over the functions of clearing house and
central counterparty, of the duty to adopt the necessary measures to the defence of
market, the minimization of risks and the protection of the clearing system;
n) The violation, by entity authorised to engage in intermediation activities
financial, of the duty to disclose orders that are not immediately
executables;
o) The violation, by entity authorised to engage in intermediation activities
financial, of the duty to comply with the rules on the aggregation of orders and the
allocation of operations;
p) The violation, by entity authorised to engage in intermediation activities
financial, of the duty to not execute orders, without the consent of the client,
out of regulated market or multilateral trading system;
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q) The violation, by entity authorised to engage in intermediation activities
financial, of the duty to establish a policy of execution of orders or the
evaluate with the frequency required by law;
r) The violation, by entity authorised to engage in intermediation activities
financial, of the duty to respect the requirement in a written form in the contracts of
financial intermediation;
s) The violation, by entity authorised to engage in intermediation activities
financial, of the duty to comply with the rules on the appreciation of character
proper of the operation.
2-In the use of the legislative authorization conferred by the previous article, may the Government
define as a serious counterordinance, punishable between € 12500 and € 1250000:
a) The sending to the managing entities of multilateral trading systems and of
clearing house or central counterparty of information other than
complete, true, current, clear objective and licite;
b) The publication or dissemination of information not accompanied by report or
opinion drawn up by auditor registered in the CMVM or the omission of
statement that the information was not subject to audit, when the law requires it;
c) The non-provision of the right holders of form voting rights
proxy for the exercise of that right;
d) The omission of the mention, in convening of general assembly, of the availability
of a proxy form or the indication of how to request it;
e) The violation of the duty of provision to the managing entity of the regulated market
or of the multilateral trading system, by the members of this, of the
information necessary for the good management of the market or system;
f) The violation of the duty to dispatch to the CMVM, by issuers of securities
admitted to trading on a regulated market or by whom it has
applied for admission to trading on regulated market of values
securities without the consent of the issuer, the information required by
law;
g) The violation of the duty of disclosure of the consolidation document of
annual information;
h) The violation of the duty to keep information available to the public for time
determined, when required by law;
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i) Trading on regulated market or multilateral trading system
of operations without the registration or approval of the respective general clauses,
when required by law;
j) The carrying out of operations by holders of boards of directors, direction and
supervision of financial intermediaries or managing entities of
regulated markets, of multilateral trading systems, of systems
of liquidation, clearing house or central counterparty and of
centralized securities systems, as well as by the respective
workers, if such operations are vgranted to them;
l) The violation, by entity authorised to engage in intermediation activities
financial, from the duty of communication to the CMVM of operations on
financial instruments admitted to trading on regulated market;
m) The violation, by entity that takes over the functions of clearing house and
central counterparty, of the duty to identify and minimize sources of risk
operational;
n) The violation, by entity that takes over the functions of clearing house and
central counterparty, of the duty to scrutinize the access requirements of the members
compensators;
o) The violation, by entity that takes over the functions of clearing house and
central counterparty, of the duty to adopt an account structure that ensures the
heritage segregation between the own values of the compensating members
and those belonging to the customers of the latter;
p) The violation, by entity authorised to engage in intermediation activities
financial, of the duty to respect the rules on subcontracting;
q) The violation, by entity authorised to engage in intermediation activities
financial, of the duty to maintain the customer's record;
r) The violation, by entity authorised to engage in intermediation activities
financial, of the duty to respect the rules on investor categorization.
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Article 3.
Sense and extent of legislative authorization as to the exercise of the activity of
consulting for investment in financial instruments by companies of
investment
In the use of the legislative authorization conferred by Article 1, may the Government establish
limits on the exercise of consulting activity for investment in instruments
financial by investment firms, in the following terms:
a) Booking your exercise to legal persons;
b) Require the authorisation of the CMVM for such exercise;
c) Making conditional on the acquisition of qualified participations of requirements
idoneity;
d) Making the exercise of this activity of the requirements check dependent
prudential and organization and conduct.
Article 4.
Sense and extent of legislative authorization as to the exercise of activities
of regulated market management, of multilateral trading systems, of
clearing house, central counterparty, settlement system and
centralized securities system
In the use of the legislative authorization conferred by Article 1, may the Government
set limits on the exercise of regulated market management activities,
of multilateral trading systems, of clearing house, of counterparty
central, settlement system and centralized securities system, nos
following terms:
a) Booking your exercise to anonymous companies with the defined social object
in the law and impose limits on the acquisition of social shareholdings by these societies;
b) Making dependent on ministerial authorization the constitution of managing society
of regulated markets and the acquisition of dominance in the
same;
c) Making it dependent on registration with the CMVM the exercise of such activities;
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d) Making the acquisition of qualifying holdings conditional on the society that if
dedicates to these activities of idoneity requirements, to be appreciated by the
CMVM, and impose the inhibition of voting rights and the invalidity of deliberations
social in the event of non-compliance with the regime applicable to that acquisition;
e) Making the exercise of these activities of the requirements check dependent
prudential and organisational and conduct, and may be imposed duties of
professional secret;
f) Define the regime of the illegitimate disciplinary to be applied by societies that exercise
those activities.
Article 5.
Sense and extent of legislative authorization as to the limits to the exercise of the
business of marketing of goods or services allocated to investment in goods
corposrees
In the use of the legislative authorization conferred by Article 1, may the Government establish
limits on the exercise of the marketing activity of goods or services allocated to the
investment in tangible goods and determine the scheme, in the following terms:
a) Reserve the exercise of the business of marketing of goods or services
affections for investment in tangible goods to commercial companies
constituted according to the type of public limited companies;
b) Subjecting the exercise of the activity to prior notification to the CMVM and establish
information duties related to the exercise of the activity;
c) Establish duties relating to the segregation of the estate between the goods of the
companies that carry out the marketing activity of goods or services
affections to investment in tangible goods and the goods belonging to their
customers;
d) Assign the CMVM powers to:
i) Passing regulatory standards on the exercise of business,
and may notably set organizational, prudential requirements and
relating to the suitability of holders of qualified shareholdings and the
members of social bodies;
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ii) Order the disclosure of additional information about the contract, the
suspension of contract or revocation of the contract;
iii) Prohibit or suspend the marketing of goods or services allocated to the
investment in tangible goods;
iv) Exercise, relatively to whom it exercises the activity, all the powers that
you are conferred by the respective Statute and the Code of Values
Securities;
v) Define the structure of the administration and surveillance of the societies that
exercise this activity.
e) Prohibit the exercise of that activity in conjunction with reserved activities
to entities subject to the supervision of the Bank of Portugal, the CMVM or the
Institute of Insurance of Portugal, as well as the dissemination of information that
associates the activity of financial activity, collective investment
or the financial instruments;
f) Require that the conclusion of any contract relating to the marketing of
goods or services allocated to investment in tangible goods is preceded by the
provision of information to the consumer;
g) Subjecting contracts for investment in tangible goods to form
writing, set its minimum content and establish a special right of
resolution of the participant;
h) Require that the accountability documents of the companies that exercise
activity is the subject of legal certification of accounts by registered auditor
in the CMVM.
Article 6.
Sense and extent of legislative authorization as to the illicit of mere ordinance
social and the general rules, of a substantive and procedural nature, which are revealed
appropriate to ensure respect for legal and regulatory standards that
discipline the marketing activity of goods or services allocated to the
investment in tangible goods
1-In the use of the legislative authorization conferred by Article 1, may the Government define
as counterordinance punishable between € 2,500 and € 25,000 the following acts or
omissions practiced by whom to carry out the marketing activity of goods or
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services affections for investment in tangible goods:
a) The realization, in simultaneous with that activity, of activities or
operations reserved to credit institutions, financial companies,
investment firms, collective investment bodies, companies of
insurance and reinsurance or any other entities registered with the Bank
of Portugal of the CMVM or the Insurance Institute of Portugal;
b) The inclusion in its denomination, in the designation of goods or services
marketed or in information, yet publicized, provided to the public
or to the customer, of reference to financial activity, collective investment or
any other likely to cause confusion with the reserved activities
to the entities referred to in the preceding paragraph or with financial instruments;
c) The breach of duty to comply with the written form requirement of the contract of
investment in tangible goods;
d) The violation of the duty to deliver to the participant or adherent an exemplar of the
duly signed contract;
e) The lack of provision to the customer of the prior information required by law;
f) The violation of the duty to adopt the procedures relating to the safety of the
goods and to the segregation of equity provided for in law or agreed with the customer;
g) The receipt of the customers of any amounts related to the goods or
contracted services during the period vetted by law;
h) The violation of the duty to subject the reporting documents to
legal certification of accounts by official reviewer of accounts registered in the CMVM;
i) The development of the non-precept activity of notification to the CMVM;
j) The lack of notification to the CMVM of changes to the content of information
previously transmitted on the activity provided;
l) The lack of communication to the CMVM of the number of its customers and the amount
of your responsibilities in the face of these;
m) The violation of the duties that are to be established in regulation of the
CMVM.
2-In the use of the legislative authorization conferred by Article 1, may the Government define
as counterordinance punishable between € 2,500 and € 25,000 a type adoption
different societarium of public limited company and supervisory regime other than the
required by law by companies that carry out the activity of marketing of goods
or services allocated to investment in tangible goods.
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3-In the use of the legislative authorization conferred by Article 1, may the Government define
as counterordinance punishable between € 25,000 and € 250,000 a violation, by members
of the supervisory body and the official reviewer of society accounts that
develops the marketing activity of goods or services allocated to the
investment in tangible goods, from the duty of communication to the CMVM of the facts
relating to that society, of which they have knowledge in the exercise of their
functions, which are likely to constitute infringement of any legal standard or
regulatory that discipline that activity affects the continuity of the exercise of the
activity or justifying the refusal of the certification of the accounts or the issuance of reserves.
4-In addition to the ancillary sanctions provided for in the general regime of the illicit of mere
social ordering can the Government establish for the illicit of mere ordinance
social that typify the application, cumulatively with the main sanctions, of the
ancillary sanctions provided for in the Securities Code.
5-In addition to the precautionary measures provided for in the general regime of the illicit of mere
social ordering can the Government establish for the illicit of mere ordinance
Social that typify the application of the precautionary measures provided for in the Code of
Securities.
6-The Government may establish that to the proceedings relating to the illicit of mere ordering
social, both in the administrative phase and in the judicial phase, that typify are
applicable the special rules set out in the Securities Code.
7-The Government may establish that to the illicit of mere social ordinance that typify
the rules laid down in Articles 401, 402, 403, 406, 419, 419, 419, 419
and 420. of the Securities Code.
Article 7.
Duration
The legislative authorisations granted by this Law shall have the duration of 180 days.
Article 8.
Entry into force
This Law shall come into force on the day following that of its publication.
19
Seen and approved in Council of Ministers of March 22, 2007
The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs
20
Annex I
Preliminary draft Decree-Preambular Law concerning the transposition of the DMIF
The present decree-law transposes to the domestic legal order Directive No 2004 /39/CE
of the European Parliament and of the Council of April 21, 2004 on the markets
of financial instruments, amending Directive No 85 /611/CEE and 93 /6/CEE of the
Council and Directive No 2000 /12/CE of the European Parliament and of the Council and which
repeals Council Directive No 93 /22/CEE.
The Community normative framework is completed by implementing standards that if
they find verses in Commission Regulation (EC) No 1287/2006 of August 10
of 2006, which applies Directive No 2004 /39/CE of the European Parliament and of the Council
with regard to the maintenance obligations of registrations of companies of
investment, information on transactions, transparency of markets, admission
to the negotiation of financial instruments and to the concepts defined for the purposes of
said Directive, as well as in Commission Directive No 2006 /73/CE of 10 of
August 2006, which applies Directive No 2004 /39/CE of the European Parliament and of the
Advice with regard to the requirements on organisation and the conditions
of exercise of the business of investment firms and the concepts set out for
effects of the said Directive.
For the adoption of this new normative framework, the present Decree-Law proceeds to
amendment of the Securities Code, approved by the Decree-Law No. 486/99, of
November 13 and the Regime of Corrective Societies and Financial Societies
of Correcting, approved by the Decree-Law No. 262/2001 of September 28.
These changes are accompanied by the simultaneous approval of the Decrees-Leis n.
____, ____ that proceed, respectively, to the approval of the legal regime of the
managing companies of markets and systems and the consecration of the legal regime of the
consulting companies for investment.
In the face of the ever increasing complexity of the services and instruments offered in the
financial market and the emergence of new trading spaces, the present
Decree-Law proceeds to changes to the Securities Code, in particular, in the
sense of the updating of the casting of financial instruments and services and of the
investment and ancillary activities, the development of the requirements
organizers and the standards of conduct applicable to financial intermediaries and the
21
establishment of a scheme, specifically informative, applicable to the negotiation of
financial instruments and the execution of orders, regardless of these occur
on regulated market or multilateral trading system or be carried out,
by the financial intermediary itself, taking on the nature of internalizer
systematic.
Regarding the casting of the financial instruments, it imposes itself to clarify the
financial instruments which, in addition to the securities, must thus be
qualified. For this purpose, the constant list of the Directive is met, the main
novelty is the inclusion of derivative instruments on goods and assets of
notional nature and, in this way, the subjection of the provision of services on these to
harmonized prudential and conduct standards at the community level.
The transversal approach of the new community regime has meant the end
of the autonomization of the securities of a monetary nature, which went on to be
subject, unless explicitly stated by law (as succeeding in the prospectus regime),
to the general regime of securities.
The benefit of the consistency of the system, is taken advantage of the ensejo to proceed with the application
of a large part of the discipline of the Code to insurance contracts linked to funds of
investment and individual adhesion contracts to open pension funds, attentive to
proximity to the function that play with the category of the instruments
financial, in general, and of investment funds, in particular.
In parallel, it is carried out in the present decree-law to the transfer to the Commission of the
Securities Market of supervisory competences and regulation of
insurance contracts linked to investment funds and membership contracts
individual to open pension funds, with respect to the duties of conduct imposed
in the distribution of these products, in particular in the scope of informative duties.
They are thus removed from asymmetries in the regulation and supervision of instruments that
display of clear similarities from the substantial point of view.
As for investment and ancillary services and activities, the planned changes
in the Directive, as reflected in Articles 290 and 291, cover inclusion, in the services of
investment, from consultancy to investment in financial instruments, which leaves,
thus, of being understood as ancillary service, obliging to the entities that
provide, on a cross-border basis, take on the nature of investment firm.
Another new activity here included is the management of multilateral trading systems, the
22
which, having present the requirements required for the exercise of the same, opts for
to reserve to certain credit institutions and brokerage financial companies,
in addition to expressly admitting the possibility of the managing companies of markets
regulated to exercise, equally, this activity and well the existence of
societies that have this activity as the exclusive object.
For its part, from the review of the cast of ancillary services is to mention the inclusion of the
elaboration of investment studies and financial analysis, from the provision of consultancy
general for investment, as well as the provision of services and activities of
investment relating to goods or derivatives on goods or assets of
notional nature.
In the regard to the organization of trading in financial instruments an
structural change, which translates into the circumstance of Title IV of the Code of the
Securities if it moves to focus on regulation of instrument trading
financial, leaving to take care of, exclusively, the regulation of the markets
regulated.
In relation to regulated markets, it should be mentioned that they pass the
be defined both in function of the structural characteristics that they present, as having
on the basis of recognition of that legal status deriving from competent authority
of any member state of the European Union (Article 199 (1)). The systems of
multilateral negotiation define itself as systems that allow the confrontation of
interests with respect to financial instruments, with a view to its negotiation (para.
1 of Article 200), which operate on the basis of clear and non-discretionary rules.
The distinction between multilateral trading systems and regulated markets
it relates to the fact that those are not required to operate on a regular basis. It is, however,
unquestionable that both figures enjoy great functional consonance, reason by the
which has chosen to regulate, in common provisions, all the matters of organization and
functioning shared by the two realities. With respect to common provisions,
it is signed that the main changes are releading to the recognition of the
possibility of subsequent admission on regulated market or trading in
multilateral trading system without consent of the issuer (Article 205) and the
enlargement of the entities that may be members of these trading systems,
now defined by reference to the respective characteristics (Article 206).
From among the provisions applicable to regulated markets, it stands out the
23
deepening of the regime relating to the reporting duties before and after the
trading of shares, whose general principles are contained in Article 222 and are
concretized by Commission Regulation (EC) No 1287/2006. Of note that part
of this scheme shall apply to multilateral trading systems by virtue of the standard
constant remissive of Article 200. On the other hand, it should be noted that, relatively to the
admission to trading, if they distinguish the requirements applicable to instruments
financial for the admission on regulated market of those applicable in the case of
regulated markets that form official quotation, which distinguishable from the rest,
precisely, by these admission requirements.
The regulation of systematic internalization, which consists of negotiation on its own
carried out in execution of investor orders, in an organized and systematic way
(Article 201), finds justification in the fact that it has been found that many
financial intermediaries have been negotiating on those terms without there being a
regulatory framework that would assure investors that the operations thus performed if
were based on rules of transparency and non-discrimination, ensuring their execution
in the best possible conditions. This is the purpose of the third Chapter of the Title
dedicated to negotiation, where a set of provisions are devoted to the
conduct of the systematic internalizers, namely, duties of information on
prices and conditions in which they can update or withdraw their respective price offers
(articles 253 and 255). The regulation of systematic internalization, in line with the
Directive, only covers cases of trading of shares.
With respect to the categorization of investors, the scheme now fixed, in parallel
with cast of the qualified investors provided for in Article 30 of the Code of Values
Securities, allows investors who, if they deem it necessary and by means of
verification of certain requirements, may choose to benefit from a qualification
distinct from that which, at the outset, would be applicable to them, depending on their respective
knowledge and skills, both to benefit from a level of protection more
high, such as to refuse such a level of protection.
In the case of the organisation of the financial intermediary, it deserves to highlight the
compulsory creation of reliable internal control systems and of
error-blinking procedures, being to mention, in particular, the systems of
control of compliance ( compliance ), of risk management and internal audit, still
that the independence of the same does not have to be fully ensured in the cases of
financial intermediaries whose size would make it virtually impossible to
24
compliance with that requirement (Article 305 and following). Also subcontracting is
now treated in the law, being in detail being defined the object of subcontracting and the
requirements that the same depends on (Article 309 and following).
It is also to highlight the deepening of norms concerning conflicts of interest
(Article 309 and the following) and, in particular, the compulsory adoption of, in writing, of
a policy intended to identify possible conflicts of interest and to avoid or reduce
the risk of their occurrence, to which it is accompanied by the consecration of an enunciation
exemplification of circumstances deemed potentially detrimental to the
client and that, of course, should be taken into account in the drafting of that policy.
The standards on conflicts of interest are supplemented by the requirement of the adoption of
procedures that, inter alia, conscribe duties of information on operations
carried out by holders of the social bodies, collaborators and linked agents of the
financial intermediary.
Within the scope of the standards of conduct, the concretization of the subject matter is highlighted.
suitability of the operation to the circumstances of the customer, the extent of which depends on the type of
service to be provided. In the case of the provision of portfolio management services or
consultancy for investment is required that the financial intermediary obtains from the client
an extensive set of information that allows you to suit your customer strategy.
In case the intermediary proposes to provide only the service of reception and transmission of
orders relating to certain financial instruments deemed non-complex,
is unobligated to meet the circumstances of the customer. Regarding the provision of the
too much services and investment activities, the financial intermediary is obliged
to obtain a set of information whose degree of extension is intermediate relatively
to those two cases.
Still within the scope of standards of conduct, but related in particular to the treatment
of orders from customers, the prior existence of a policy of aggregation of
orders that steer the way in which intermediaries proceed to the aggregation of orders and to the
respective allocation (articles 328 and following).
In the case of the information duties provided for in Article 312, the degree of
detail of the law in the definition of the informative elements to be transmitted to the current customer or
potential and the prediction of a different content, depending on the recipients of the
information whether qualified or unqualified investors.
25
At the level of the regime of the execution of orders, it is to highlight that it is made impend on the
financial intermediary both the duty to adopt a policy of execution of orders,
as the burden of demonstrating that it carried out the orders of a given investor accordingly
with the same. Too much, it is demanded that the financial intermediary disclose to each customer
its policy of execution of orders and that, whenever there is a possibility of
execution outside a regulated market or a trading system
multilateral, obtain the prior and express consent of the client (articles 330 and
following).
In relation to the duties of information, it is still deepened, in articulation with the
Commission Regulation (EC) No 1287/2006 of the Commission, the communications regime to the CMVM
on operations carried out on financial instruments admitted to trading in
regulated market located or operating in a member state of the European Union
(Article 315). The duty of disclosure of post information is still established
trading in respect of transactions on shares admitted to trading on market
regulated (Article 316).
Within the framework of entities carrying out financial intermediation activities, it is
enshrined a new regime applicable to linked agents, which in comparison with the
current regime of the prospecting activity, is characterized by the potential enlargement
of the functions covered, by the admissibility of legal persons, by adopting the form
societariate, exercise this activity and the applicability of this regime to all those
who wish to engage in such activity, in the name of financial intermediary seated in
Portugal, in a member state of the European Union that does not provide for such a figure.
The Directive that turns out to be transposing seeks to also make the scheme more effective
"European passport", stands out, for its relevance, the elimination of the right of the
State of reception to condition the exercise of the activity to compliance " by
reasons of general interest " of internal standards, the inclusion in information notifications
on the recourse to linked agents and the fact that investment firms leave
of relating, for the purpose of notification and respective changes, with the authority
competent of the host State.
Finally, fruit of the changes described above, it matters to appropriate some of the
regulatory provisions of the subject of the supervision and regulation of the markets of
financial instruments, constants of Title VII of the Securities Code, à
circumstance that they have arisen in the regulatory landscape new figures that lack
26
accommodation under the scope of competence of the Stock Market Commission
Securities.
In the same Title, changes to the regulatory precepts of competence are introduced
of the Commission of the Securities Market at the level of the cooperation, with the fito of
clarify the skills of this in what it touches on your relationship with your
congenic entities, thus contributing to expedite the new framework of cooperation
resulting from the transposition of the Directive (Article 377 (1) and 5 of the Code of Values
Securities).
The present decree-law also transposes to the domestic legal order Directive n.
2004 /109/CE ("Transparency Directive"), on the harmonisation of the requirements of
transparency with regard to the information relating to issuers whose values
securities are admitted to trading on a regulated market and Directive n.
2007 /14/CE of the Commission of March 8, 2007 laying down the standards of
implementation of certain provisions of Directive No 2004 /109/CE.
The adoption of the Transparency Directive has inserted itself into the set of proposed measures
in the European Commission's Action Plan with a view to modernising the Right of
Societies and strengthen the Government of Societies in the European Union, May 2003,
with regard to the establishment of a harmonized disclosure regime of the
financial by the part of the securities companies admitted to trading in
regulated market.
The normative modifications ora introduced aim at the main title to respect the
minimal harmonisation that the Directive supposes, using sometimes counted in Article 3.
of the same. In that measure, only the duty of communication of shareholdings is maintained
qualified from 2% for societies having statutory limits to the exercise of the
right to vote. In such cases, it is understood that society-based participation has a weight
different from the herd, so the more restrictive measure is warranted. On the other hand,
a distinction is sought in the regime of the information duties between, on the one hand, the
small and medium-sized enterprises and, on the other hand, large enterprises
admitted to trading on regulated market-having as criteria
differentiators those used in Article 413 (2) of the Code of Societies
Commercials. These latter companies remain subject to the provision of information
quarterly, while in relation to small and medium-sized enterprises consider themselves
sufficient the provision of interim information of the administration, in terms more
27
simplified.
The communication of qualified participations benefits from some simplification, in the
measure in which the participant cede is obliged to inform about the percentage
of voting rights calculated by having present the own shares of the company-
information that it may not have in updated terms.
Companies issuers of securities are required to disclose their
annual accounts within four months after the term of the financial year, regardless
of having or has not already been approved by the competent body. In consequence, it has acceed to
a precept obliging to the disclosure of the results of the approval deliberation of
accounts.
It has also defined the minimum content of the half-yearly reports and the conditions in which
if it considers that the law of a third country is equivalent to the vicar in the national territory
to dismiss the issuer from releasing additional information.
With regard to the storage of information, notwithstanding the Directive to allow the
resource to alternative systems, the present diploma designates as official mechanism the already
existing CMVM information diffusion system, listening to what implementation
of these other systems lacks regulatory developments that are yet to be
have been completed in the community plan.
Thus:
In the use of the legislative authorization granted by the Law No. ___/2007, of ___ of ___ and in the
terms of the points a) and b) of Article 198 (1) of the Constitution, the Government decrees the
next:
Article 1.
Subject
The present decree-law transposes to the internal legal order:
a) Directive No. 2004 /39/CE, of the European Parliament and of the Council, of 21 of
April 2004, concerning the markets for financial instruments, which changes the
Directives No 85 /611/CEE and No 93 /6/CEE of the Council and Directive No
2000 /12/CE of the European Parliament and of the Council and repealing the Directive
Council No. 93 /22/CEE of the Council, as amended by Directive No 2006 /31/CE of the
28
European Parliament and of the Council of April 5, 2006 as far as it is concerned
to certain deadlines;
b) The Commission Directive No 2006 /73/CE of August 10, 2006, which
applies Directive No 2004 /39/CE of the European Parliament and of the Council in
which concerns the requirements on the organisation and the conditions of
exercise of the business of investment firms and the defined concepts
for the purposes of the said Directive;
c) Directive No. 2004 /109/CE of the European Parliament and of the Council, 15 of
December 2004, concerning the harmonisation of transparency requirements in the
referring to the information relating to issuers whose values
securities are admitted to trading on a regulated market and that
changes the Directive No 2001 /34/CE;
d) The Commission Directive No 2007 /14/CE of March 8, 2007, which
sets out the standards for the implementation of certain provisions of Directive No
2004 /109/CE on the harmonisation of transparency requirements in what
refers to the information relating to issuers whose securities
are admitted to trading on a regulated market.
Article 2.
Point of contact designation
1-A The Securities Market Committee is the competent authority
designated as a contact point for the purposes of the provisions of Article 56 (1) of the
Directive No 2004 /39/CE of the European Parliament and of the Council of April 21 of
2004, concerning the markets for financial instruments.
2-A The Securities Market Committee shall diligenate in the sense of
respond promptly to the requests for information requested by the authorities
that hajam has been designated as contact points in the remaining member states
of the European Union.
Article 3.
Central information storage mechanism
The information diffusion system provided for in Article 367 of the Code of Values
29
Securities is designated as the central storage mechanism of information
for the purposes of the provisions of Article 21 (2) of the Directive referred to in para. c) from the
article 1 para.
Article 4.
Amendment to the General Regime of Credit Institutions and Financial Societies
Articles 3, 4, 14, 16, 29, 38, 65, 69, 81, 88, 99, 99, 99, 99, 99, 99, 99.
103, 105, 116, 121, 186, 193, 198, 198, 199-199, 199, 199-B., 199-
C. °, 199-D., 199-E., 199-F., 199-G., 199-H., 199.-I and 215 of the General Regime of the
Credit Institutions and Financial Societies, approved by the Decree-Law No. 298/92,
of December 31, and amended by the Decrees-Leis n. ºs 246/95 of September 14,
232/96, of December 5, 222/99, of June 22, 250/00, of October 13,
285/2001, of November 3, Decree-Law No. 201/2002, of September 26, 319/2002,
of December 28, 252/2003, of October 17, and 145/2006, of July 31, and the
epiggrafe of the title X-A is replaced by the following:
" Article 3.
[...]
They are credit institutions:
a) [...];
b) [...];
c) [...];
d) [...];
e) The mortgage credit institutions;
f) [ Previous point and )];
g) [ Previous point f )];
h) [Previous point g )];
i) [ Previous paragraph h )];
j) [ Previous point I )];
l) [ Previous point j )];
m) [ Previous point l )].
30
Article 4.
[...]
1-[...]:
a) [...];
b) [...]
c) [...]
d) [...];
e) [...];
f) [...]
g) [...];
h) [...];
i) [...];
j) [...];
l) [...];
m) [...];
n) Mediation of insurance;
o) [...];
p) [...];
q) [...];
r) Provision of the services and exercise of investment activities
referred to in Article 199-A, not covered by the points
previous;
s) [...].
2-[...].
Article 8.
[...]
1-[...].
2-[...].
3-[...].
4-The provisions of paragraph 2 shall not preclude the exercise, by professional title:
a) of the reception and transmission of orders and consultancy to
31
investment in securities, by advisors to
investment;
b) of the reception and transmission of orders and consultancy to
investment in financial instruments, by societies of
consulting for investment;
c) of the management of multilateral trading systems, by societies
regulated market gestures.
Article 14.
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) Having social capital not less than the legal minimum, represented
compulsorily for nominative actions;
e) [...] .
2-[...].
Article 16.
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-[...].
6-By decision of the Commission or of the Council of the European Union, on the terms
provided for in Directive No 2006 /48/CE of the European Parliament and of the
Council, of June 14, 2006, may be limited to authorisations
for the constitution of credit institutions referred to in paragraph 2 of this
article, or suspended the appreciations of the respective requests for
authorization, even if already presented.
32
Article 29-The
[...]
1-Where the object of the credit institution understands some
intermediation activity of financial instruments, the Bank of
Portugal, before deciding on the application for authorisation, will request
information to the Securities Market Committee on the
idoneity of shareholders.
2-[...].
3-[...].
Article 37.
[...]
1-[...].
2-[...].
3-Where the programme of activities will understand some activity
of intermediation of financial instruments, the Bank of Portugal,
prior to the communication to the country supervisory authority of
host, will request to appear to the Stock Market Committee
Securities, and this entity shall be able to pronounce within one month.
Article 38.
[...]
1-[...].
2-A decision to refuse must be substantiated and notified to the institution
interested, within the time limit referred to in paragraph 1 of the previous article.
3-[...].
4-[...].
33
Article 40.
[...]
1-[...].
2-The provisions of Articles 37 and 38 shall apply, reducing to one month
and for 15 days the time limits provided for, respectively, in paragraphs 1 and 3 of the
article 37 para.
Articles 65 para.
[...]
1-[...].
2-In the event that the object of the credit institutions includes the exercise of
Intermediation activities of financial instruments the Bank of
Portugal communicates and makes available to the Stock Market Committee
Securities the record referred to in the preceding paragraph and the respective
averages, changes or cancellations.
Article 69.
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-[...].
6-[...].
7-[...].
8-[...].
9-Where the purpose of the credit institution will understand some
intermediation activity in financial instruments, the Bank of
Portugal, before deciding, will request information to the Commission of the
Securities Market, and the Commission shall, where appropriate, be
to provide the said information within 15 days.
34
Article 81.
[...]
1-[...]:
a) [...];
b) [...];
c) Persons in charge of legal control of accounts and auditors
external of credit institutions, of financial companies, of
insurance companies, financial institutions, and authorities with
supervisory competence on those persons;
d) [...];
e) [ Repealed ];
f) [...].
2-The Bank of Portugal will be able to exchange information, in the framework of agreements
of cooperation that there is concluded, with supervisory authorities of
States that are not members of the European Community, in regime
of reciprocity, as to the information necessary for supervision, in
individual or consolidated basis, of credit institutions with registered offices in
Portugal and institutions of an equivalent nature based on those
States.
3-The Bank of Portugal may still exchange information with authorities,
organisms and persons carrying out functions equivalent to those of
authorities mentioned in the body of paragraph 1 and in the paragraphs a) a c) and f) from the
even number in non-member countries of the European Community,
and the provisions of the preceding paragraph shall be observed.
4-[ Previous Article No 3 ].
5-[ Previous Article No 4 ].
6-The Bank of Portugal will only be able to communicate information that has
received from entities from another member state of the European Community
or of non-member countries with the express consent of such
entities.
35
Article 88.
[...]
In proceedings instituted by restrictive competition practices
attributable to credit institutions or their associations would be
mandatorily requested and sent to the Competition Authority o
opinion of the Bank of Portugal, as well as, if the exercise of the
intermediation activity of financial instruments, the opinion of the
Commission of the Securities Market.
Article 89.
[...]
1-A advertising of credit institutions and their associations
business is subject to the general scheme, and, in respect of activities
of intermediation of financial instruments, to the one set out in the Code
of the Securities.
2-[...].
3-[...].
Article 99.
Regulatory competence
1-[ Previous body of the article ].
2-Compete still to the Bank of Portugal to regulate the subjects to which
alude the point f) of Article 17 (1), and shall, in this case, consult the
Commission of the Securities Market, whenever the object of the
target institutions understand some activity or service of
investment.
Article 103.
[...]
1-[...].
36
2-[...].
3-[...].
4-[...].
5-[...].
6-[...].
7-[...].
8-Where the object of the credit institution understands some
intermediation activity of financial instruments, the Bank of
Portugal, before pronount on the terms of paragraph 1, shall request
information to the Securities Market Committee on the
suitability of holders of qualified shareholdings, owing to
Commission, where appropriate, to provide the said information within the period of
one month.
Article 105.
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-[...].
6-Decisions handed down under the previous figures are notified
the person concerned, in the general terms, and communicated to the organ of
administration of the participating credit institution and the president of the
respective assembly of shareholders, accompanied, as to this
last, of the determination that it should act in such a way as to prevent the
exercise of the inbred voting rights, in accordance with the provisions of the
the following number. Where the object of the credit institution
understand some intermediation activity in instruments
financial, the decisions rendered under the previous figures are
also communicated to the Commission of the Securities Market.
Where the person concerned is an entity subject to supervision of the
Institute of Insurance of Portugal, the decisions rendered under the
37
previous figures are also communicated to this Institute.
7-[...].
8-[...].
9-[...].
10-[...].
Article 116.
[...]
1-[...]:
a) [...];
b) [...];
c) Take action or issue recommendations for them to be sanctioned
the irregularities detected;
d) [...];
e) [...].
2-[...].
Article 120.
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-During the five-year term, credit institutions must keep to the
provision of the Bank of Portugal the relevant data on the
transactions relating to services and investment activities.
6-[...].
7-The Bank of Portugal may still request from any person the
information that you need for the exercise of your duties and, if
needed, summon that person and listen to it in order to get these
information.
38
Article 121.
[...]
1-[...].
2-A The obligation provided for in the preceding paragraph shall also apply
concerning the facts of which the persons referred to in the same number
come to have knowledge in the context of identical functions, but
exercised in company that maintains with the credit institution where
such functions are exerted a close relationship.
3-[...].
Article 186.
[...]
Whenever the object of the financial corporation it intends to establish
branch abroad understand some intermediation activity of
financial instruments, the Bank of Portugal will request to appear from the
Commission of the Securities Market, and this should be pronounarable
within two months.
Article 189.
[...]
1-[...].
2-The provisions of Article 181 shall apply to the establishment of the branches
referred to in the preceding paragraph, when the same if they were proposing to exercise
in the Country some intermediation activity of financial instruments.
Article 193.
[...]
In the case of the subject matter of the financial institutions referred to in the preceding Article
include the exercise of instrument intermediation activities
financial, is applicable, with the necessary adaptations, the provisions of the article
39
186.
Article 197.
[...]
1-[...].
2-When a financial institution with a registered office abroad, and that in
Portugal pay for services or have office of representation,
exercise in the Country of intermediation of financial instruments,
the supervision of such activity also competes with the Commission of the
Securities Market.
Article 198.
[...]
1-[...].
2-Dealing with financial companies that exert some activity
of intermediation of financial instruments, the Bank of Portugal
will keep the Securities Market Commission informed of the
arrangements to take in the terms of the articles referred to in the number
previous and, whenever possible, I will listen to you before you take any of the
arrangements or decisions provided for in articles 141 to 145 and 152.
Article 199-The
[...]
For the purposes of this title, it is understood by:
1. Services and investment activities:
a) Reception and transmission, on account of customers, of orders relating to
one or more financial instruments referred to in paragraph 3.
b) Execution of orders on account of customers, relating to one or more
financial instruments referred to in paragraph 3.
c) Trading on own account of one or more instruments
financial referred to in paragraph 3.
40
d) Management of portfolios on a discretionary and individualised basis in the
scope of mandate given by customers, whenever such
portfolios include one or more financial instruments referred to in the
n. 3.
e) Consulting for investment in one or more instruments
financial referred to in paragraph 3.
f) Placement, with or without firm outlet, of one or more instruments
financial referred to in paragraph 3.
g) Management of multilateral trading systems;
2. ancillary services: the nominees in Section B of Annex I to the Directive
n. 2004 /39/CE, of the European Parliament and of the Council, of April 21 of
2004.
3. Financial Instruments: any contract giving rise,
simultaneously, to a financial asset of a party and to a liability
financial or capital instrument of another Party, including, at a minimum, the
instruments referred to in Section C of Annex I to Directive No 2004 /39/CE,
of the European Parliament and of the Council of April 21, 2004.
4. Investment Companies: companies in whose usual business if
include the provision of one or more investment services to third parties and / or the
exercise of one or more investment activities and which are subject to
the requirements laid down in Directive No 2004 /39/CE of Parliament
European and Council, of April 21, 2004, with the exception of
credit institutions and entities covered in the framework of the forecast of the
n Article 2 (1) of the same Directive.
5. Agent linked: natural or legal person who, under the
total and unconditional liability of a single company of
investment in whose name it acts, promotes investment services and / or
ancillary services to customers or potential customers, receives and
transmits instructions or orders from customers regarding services of
investment or financial instruments, puts financial instruments
and / or provides a counseling to clients or potential clients
regarding such financial instruments or services;
6. The management company of furniture investment funds-any
society whose main activity consists in the management of funds of
41
investment furnishings or of furniture investment companies that
comply with the requirements of Council Directive No 85 /611/CEE, of 20
of December 1985.
Article 199-B
[...]
1-Investment companies, with the exception of companies of
consultancy for investment and the managing societies of systems of
multilateral trading, as well as the managing companies of funds of
investment furnishings are subject to all the standards of the present
diploma applicable to financial companies and, in particular, the
provisions of this title.
2-Within the scope of the provision of investment services, the provisions of paragraph 5
of Article 199-D, in Article 199-F and in paragraphs 2, 3 and 4 of Article 199-L is
also applicable to credit institutions.
Article 199-C
[...]
Title II shall apply, with the necessary adaptations, to the companies of
investment with registered office in Portugal, with the following modifications:
a) [...];
b) The capital of investment firms that adopt the form of
limited liability company shall be represented by nominative actions;
c) Paragraphs 3 a to 5 of Article 16 shall not apply;
d) [...];
e) In Article 16 (6), the reference made to Directive No
2006 /48/CE of the European Parliament and of the Council, of 14 of
June 2006 is replaced by the reference to Article 15 of the
Directive No 2004 /39/CE, of the European Parliament and of the Council,
of April 21;
f) [...].
42
Article 199-D
[...]
1-The establishment of branches and the provision of services in others
Member states of the European Community by companies of
investment with registered office in Portugal is governed, with the necessary
adaptations, by the provisions of Articles 36, 37, paragraph 1, 38, n. the
1 a 3, 39.
and 43, with the following modifications:
a) [...];
b) [...];
c) The communication referred to in Article 37 (1) shall be accompanied
of the necessary clarifications on the system of compensation
to the authorized investors of which the investment firm is
member pursuant to Directive No 97 /9/CE of Parliament
European and of the Council of March 3, 1997;
d) In Articles 39 and 43, the reference to the listed transactions
append to Directive No 2006 /48/CE, of the European Parliament and of the
Council, of June 14, 2006, is replaced by the reference
to services and investment activities and ancillary services
constants of sections A and B of Annex I to Directive n.
2004 /39/CE, of the European Parliament and of the Council, of April 21
of 2004, being that ancillary services can only be provided
jointly with a service and / or investment activity;
e) The supervisory authority of the host member state will be
informed of the modifications that occur in the system referred to in the
point ( c) ;
f) The notifications provided for in Article 36 (1) and in paragraph 1 of the article
43. must include indication of the intention of the company of
investment to rely on linked agents in the member state of
reception and, if so, the identity of these;
g) In case of modification of some of the elements communicated in the
terms of Article 36 (1) or Article 43 (1) with the
modifications foreseen in this number, the investment company
communicate it, in writing, with the minimum in advance of one month
43
in the face of the date of its implementation, the Bank of Portugal and the
Commission of the Securities Market, being the
communication transmitted to the state supervisory authority
host member;
h) Following the communication referred to in Article 43 (2) thereof,
the identity of the linked agents can be communicated to the
supervisory authority of the host member state, the
request from this.
2-A competence for the transmission of the information to the authority of
supervision of the host member state to which they refer to
points b ), c ), e) , g) and h) of the preceding paragraph shall be exercised by the Commission
of the Securities Market.
3-The recourse to a linked agent established in another member state of the
European Community is equated, for all purposes, to the
establishment of a branch of the investment company in that
Member state.
4-For the purposes of the previous figures, it is understood as the authority of
supervision of the host member state the one that, in the State
member of the European Community concerned, has been designated as
point of contact in accordance with Article 56 of Directive No 2004 /39/CE,
of the European Parliament and of the Council of April 21, 2004.
5-If, in respect of investment firms with registered office in Portugal, the
Bank of Portugal or the Commission of the Securities Market
are notified that these infringed legal provisions or
regulation the verification of which is not up to the supervisory authority of the
State member of the host, the Bank of Portugal or the Commission of the
Securities Market will take the necessary measures and
suitable to put an end to the irregularity.
Article 199-And
[...]
1-The establishment of branches and the provision of services, in Portugal,
by investment firms with headquarters in other member states of the
44
European Community shall be governed, with the necessary adaptations, by the
in the provisions of Articles 44, 46 to 49, 50, 52, 54, 54 to 56, 60 and
61., n. the
1 and 2 with the following modifications:
a) The competence conferred on the Bank of Portugal in Articles 46,
47, 49, 50, paragraph 2, and 61, n. the
1 and 2 is awarded to the Commission of the
Market of Securities;
b) [...];
c) [...];
d) In Articles 52 and 60, the reference to the listed transactions
append to Directive No 2006 /48/CE, of the European Parliament and of the
Council, of June 14, 2006, is replaced by the reference
to services and investment activities and ancillary services
constants of sections A and B of Annex I to Directive n.
2004 /39/CE, of the European Parliament and of the Council, of April 21
of 2004, being that ancillary services can only be provided
jointly with a service and / or investment activity;
e) [ Repealed ];
f) [ Repealed ];
g) [ Repealed ];
h) The communications provided for in Article 49 (1) and in paragraph 1 of the
article 61 must include indication of the intention of the company of
investment to make use of linked agents in Portugal;
i) If the content of the communications referred to in Article 61 (1)
result that the investment firm intends to turn to agents
linked in Portuguese territory, the Market Committee of
Securities Securities will request the supervisory authority of the
Member state of origin the indication of the identity of the same;
2-The appeal to a linked agent established in Portugal is equated,
for all purposes, to the establishment of a branch of the company of
investment in Portuguese territory.
3-For the purposes of this Article, it is understood as the authority of
supervision of the member state of origin the one that, in the member state
of the European Community in question, has been designated as a point of
contact in accordance with Article 56 of Directive No 2004 /39/CE, of the
45
European Parliament and of the Council of April 21, 2004.
Article 199-F
Irregularities when it is in question the provision of services and activities of
investment
1-Whether the Bank of Portugal or the Stock Market Commission
Securities have clear and demonstrable grounds to believe that,
on the activity in Portugal of investment firms
headquartered in other member states of the European Community, are the
be contravened legal or regulatory provisions of the competence of the
State member of origin, shall notify the authority of such
competent supervision.
2-If, in spite of the initiative provided for in the preceding paragraph, in particular in
face of insufficiency of the measures taken by the competent authority
of the member state of origin, the investment company persists in the
irregularity, the Bank of Portugal or the Market Committee of
Securities, after informing the competent authority of the State
member of origin, will take the appropriate measures that are revealed
necessary to protect the interests of investors or the
orderly operation of the markets, and may, inter alia,
prevent such investment firms from starting new transactions
in Portugal, owing to the European Commission being informed without delay
of the measures adopted.
3-When it is found that a branch office that carries out activity in Portugal
does not observe the legal or regulatory provisions whose verification
it is up to the Securities Market Commission, this to determine-
to you to put an end to the irregularity.
4-In case the branch does not adopt the necessary measures pursuant to the
previous number, the Securities Market Commission will take
the appropriate measures to ensure that that put an end to the situation
irregular, informing the competent authority of the member state of
origin of the nature of such measures.
5-If, despite the measures adopted in the terms of the preceding paragraph, the
46
branch persists in the violation of legal or regulatory provisions, the
Securities Market Committee may, after informing the
competent authority of the member state of origin, take the measures
suitable to prevent or sanction new irregularities and, if
necessary, to prevent the branch from starting new transactions in Portugal,
reporting without delay to the European Commission of the measures adopted.
6-The provisions referred to in paragraph 3 shall be those relating to the registration of
operations and the preservation of documents, the general duties of
information, to the execution of orders in the best conditions, to the
treatment of customer orders, to information on price offers
firm and operations carried out outside of regulated market or
multilateral trading system and the information to the CMVM about
operations.
Article 199-G
Cooperation with other entities
1-A The Securities Market Committee shall forward from
immediate to the Bank of Portugal the information it receives from
competent authorities in other States, as well as applications for
information from these authorities that have been directed to you, which are
of the competence of the Bank.
2-The Bank of Portugal may, in the transmission of information, declare that
these may not be disclosed without your express consent, if
in which such information may only be exchanged for the purposes of
which the Bank has given its agreement.
3-The Bank of Portugal will be able to transmit to other entities the information
which has received from supervisory authorities of member states of the
European Community as long as the former have not conditioned
such disclosure, in which case such information may only be
disclosed for the purposes to which those authorities have given their agreement.
4-If the Bank of Portugal is aware of what acts contrary to the
provisions regulating services and investment activities
are being or have been practiced by entities not subject to their
47
supervision in the territory of another member state, shall communicate such acts to
Commission of the Securities Market for the purpose of notification
of the competent authority of that State, without prejudice to the performance of the
scope of its powers.
5-If the Bank of Portugal receives notification analogous to the provision in the
previous number, will communicate to the Stock Market Committee
Securities the results of the representations made and other
relevant developments for the purposes of its transmission to the
notifying authority.
Article 199-H
Refusal of cooperation
1-The Bank of Portugal may refuse to a competent authority from another
State-Member the transmission of information or the collaboration in
inspections of branches if:
a) Such an inspection or transmission of information is likely to
damage to the sovereignty, security or national public order;
b) Legal action is under way or there is a transitioned decision
on trial in respect of the same acts and the same persons
before the Portuguese courts.
2-In the event of a refusal, the Bank of Portugal shall notify this to
competent applicant authority, providing you with such information
detailed as possible.
Article 199-I
Registration
The organisation of the register and the list referred to in Articles 67 and 68 are of the
Competence of the Securities Market Commission.
48
Article 215.
[...]
1-When necessary to the fact-finding or the instruction of the process can
proceed to the seizure of any documents, as well as to the
apprehension and freezing of any values, regardless of the
place or institution in which they find themselves, and the values must be
deposited in the General Box of deposits to the order of the Bank of Portugal,
guaranteeing the payment of the fine and the costs in which it comes to be
doomed the defendants.
2-[...]. "
Article 5.
Addition to the General Regime of Credit Institutions and Financial Societies
They are deferred to the General Regime of Credit Institutions and Financial Societies the
articles 199-J., 199.-L and 199.-M:
" Article 199-J
[ previous Article 199-G ]
Article 199-L
1-The provisions of Articles 122 to 124 shall apply to all companies of
authorized investment in other member states of the Community
European, being bestoed on the Stock Market Committee
Securities the competence in them conferred on the Bank of Portugal, and
understood the scope of competences defined by Article 122 (2)
as relating to the subjects listed in Article 199 (6).-F.
2-For the exercise of its competences in the supervision of the subjects to which
refer to Article 199 (6), the Commission of the Stock Market
Securities may, in respect of investment firms
authorized in other member states of the European Community that
have established branch office in Portugal, check the procedures
adopted and require the changes it considers necessary, as well as the
49
information that for the same effects may require companies to
investment with registered office in Portugal.
3-The Bank of Portugal and the Commission on the Securities Market
may require the authorized investment firms in others
Member states of the European Community that have established
branch office in Portugal, for statistical purposes, the periodic presentation
of reports on its operations carried out in Portuguese territory;
the Bank of Portugal may still, within the framework of its assignments and
skills in monetary policy, request the information
that for the same effects may require investment firms
with registered office in Portugal.
4-Within the scope of the provision of services and investment activities, the
Bank of Portugal may request to service entities from services of
telecommunication, fixed network or mobile network, or the operators of
services of Internet registrations of telephone and transmission contacts of
existing data, which in need for the exercise of its functions, does not
it may cause the entity concerned to invoke any regime of secrecy.
Article 199-M
[ previous Article 199-I ]
[...]
1-The holding companies of furniture investment funds apply the
provisions of this Title with the exception of Art. 199 (5) and
of Articles 199-C to 199.-H, understanding the scope of competences
of Article 122 (2), to which the Article 199-L, is provided for in the
point ( d) of paragraph 4 of this article.
2-[...]:
a) The n shall not apply. the
3 a to 5 of Article 16;
b) [...]:
i) [...];
ii) [...];
iii) [...];
c) In Article 16 (6), the reference made to Directive No
50
2006 /48/CE, of the European Parliament and of the Council, of 14 of
June 2006 is replaced by the reference to Article 15 of the
Directive No 2004 /39/CE, of the European Parliament and of the Council,
of April 21, 2004;
d) [...].
3-The establishment of branches and the provision of services in others
Member states of the European Community by holding companies of
investment funds furnished with registered office in Portugal regenerated, with
the necessary adaptations, by the provisions of Articles 36, 37, paragraph 1, 38.
a 40. and 43, with the following modifications:
a) The notifications referred to in Article 36 (1) and in paragraph 1 of the article
43. must also be made to the Stock Market Committee
Securities;
b) The communications and certifications referred to in Article 37 (1).
and in Article 43 (2) they may only be transmitted to the authority of
supervision of the host member state if the Bank of
Portugal and the Commission of the Securities Market if
to pronounce in a favourable sense to the pretense;
c) If applicable, the communication referred to in Article 37 (1) shall be
accompanied by the necessary clarifications on the systems of
guarantee of which the gesturing company is a member;
d) The statement of reasons for the decision to refuse, referred to in paragraph 2 of the
article 38, shall be notified to the institution concerned within the period of
two months;
e) In Articles 39 and 43, the reference to the listed transactions
append to Directive No 2006 /48/CE, of the European Parliament and of the
Council, of June 14, 2006, is replaced by the reference to
activity and services listed in the n. the
2 and 3 of Article 5 of the
Directive No 85 /611/CEE of December 20, 1985, as
modified by Directive No 2001 /107/CE of Parliament
European and of the Council of January 21, 2001;
f) The Bank of Portugal or the Commission on the Stock Market
Securities will inform the state supervisory authority
host member of the modifications that occur in the
51
warranty systems referred to in paragraph c) ;
g) The communication referred to in Article 40 (1) shall be made
also to the Commission of the Securities Market;
h) In case of modification of the plan of activities to which the
n Article 43 (1), the managing company shall communicate it, in writing,
with the minimum advance of one month in the face of the date of your
implementation, the Bank of Portugal and the Market Committee
of Securities and the state supervisory authority
host member;
i) The competence for the transmission of the information to the authority of
supervision of the host member state to which they refer to
points b) , c) and f) of this number will be exercised by the Bank of
Portugal in relation to host member states in the
which the addressee supervisory authority has competence
for the supervision of credit institutions and the Commission of the
Securities Market in the remaining cases.
4-The establishment of branches and the provision of services, in Portugal,
by holding companies of investment funds with registered office
in other member states of the European Community shall be governed, with the
necessary adaptations, by the provisions of Articles 44, 46 to 56, 60 and
61., with the following modifications:
a) The competence conferred on the Bank of Portugal in Articles 46,
47, 49 to 51, 53 and 61 is assigned to the Market Committee of
Securities;
b) The points are not applicable d) , and ) and f) of Article 49 (1);
c) In Articles 52 and 60, the reference to the listed transactions
append to Directive No 2006 /48/CE, of the European Parliament and of the
Council, of June 14, 2006, is replaced by the reference to
activity and services listed in the n. the
2 and 3 of Article 5 of the
Directive No 85 /611/CEE of December 20, 1985, as
modified by Directive No 2001 /107/CE of Parliament
European and of the Council of January 21, 2001;
d) The standards referred to in Article 53 (1) are the standards of
conduct, those governing the form and content of the shares
52
advertisement and those that regulate the marketing of units of
participation of investment funds furnishings as well as the
concerning the obligations of information, declaration and
publication;
e) To the extent that this proves necessary for the exercise of the
competences of the supervisory authorities of member states
of origin, and at the request of these, the Stock Market Commission
Securities will inform you of all arrangements that have
have been adopted in accordance with Article 53 (6);
f) In case of modification of the plan of activities to which the
n Article 61 (1), the managing company shall communicate it in advance
to the Commission of the Securities Market, and may this,
being a case of this, indicate to the company any change or
complement in relation to the information that has been
communicated in the terms of Article 50 (1) "
Article 6.
Amendment to the systematic organization of the General Regime of Credit Institutions and
Financial Societies
1-Chapter V of Title X-A of the General Regime of Credit Institutions and
Financial Societies undergoes the following epitographer: " Cooperation with others
entities ", covering articles 199.-G to 199 .º-H.
2-Is added a Chapter VI to the Title X-A of the General Regime of Credit Institutions
and Financial Societies, with the epistle: "Other provisions", covering the
articles 199-I at 199.-M.
Article 7.
Amendment to the Securities Code
Articles 2, 3, 7, 16, 18, 20, 30, 31, 32, 85, 85, 85, 85, 85, 85, 85, 85, 85
97, 99, 111, 198, 199, 201, 202, 204, 205, 207, 207., 207, 207, 207, 207, 207, 207
208, 209, 210, 212, 213, 215, 216, 217, 220, 220, 220, 220, 220, 220, 220, 220
221, 222, 223, 225, 226, 228, 229, 230, 233, 233, 233, 233, 233, 233, 233, 233
53
234, 236, 244, 246, 247, 250, 252, 253, 256, 256, 256, 256, 256, 256, 256, 256
257, 258, 259, 261, 262, 264, 265, 266, 271, 271, 271, 271, 271, 271, 271, 271
274, 276, 278, 281, 283, 289, 290, 291, 294, 294, 294, 294, 294, 294, 294, 294
295, 297, 298, 301, 303, 305, 306, 307, 310, 310, 310, 310, 310, 310, 310, 310
311, 312, 313, 315, 316, 318, 319, 320, 323, 323, 323, 323, 323, 323, 323, 323
325, 326, 327, 329, 330, 332, 333, 334, 337, 337, 337, 337, 337, 337, 337, 337
343, 347, 348, 352, 353, 356, 358, 359, 363, 363, 363, 363, 363, 363, 363, 363
364, 366, 369, 376, 377, 377, 389, 390, 394, 394, 394, 394, 394, 394, 394.
395, 396, 397. of the Securities Code, approved by the Decree-Law n.
486/99, of November 13, as amended by the Decrees-Leis 486/99
61/2002, of March 20, 38/2003, of March 8, 107/2003, of June 4, 183/2003,
of August 19, 66/2004, of March 24, 52/2006, of March 15 and 219/2006, of 2
of November shall be replaced by the following:
" TITCHAPTER I
General provisions
CHAPTER I
Scope of application
Article 2.
[...]
1-The present code regulates:
a) The securities and public offerings to these relating;
b) The derivative instruments for the transfer of credit risk;
c) The differential contracts;
d) The options, the futures, the swaps , the term contracts on fees
of interest and any other derivative contracts relating to:
i) securities, foreign exchange, interest rates or the
surrenities or relative to other derivative instruments,
financial indices and financial indicators, with settlement
physical or financial;
ii) goods, climate variables, freight tariffs, licences
54
of issuance, inflation rates or any other statistics
official economic, with financial settlement still that by
option of one of the parties;
iii) goods, with physical settlement, as long as they are
traded on regulated market or in a system
of multilateral trading or, not intended for purpose
commercial, have characteristics analogous to those of others
financial instruments derived pursuant to Art. 38 para.
of the Commission Regulation (EC) No 1287/2006 of 10 of
August;
e) Any other derivative contracts relating to any of the
elements indicated in Article 39 of the Regulation (EC) No
1287/2006, of the Commission of August 10, provided that they have
characteristics analogous to those of other financial instruments
derivatives under the terms of Article 38 of the same diploma.
f) The organised forms of trading in financial instruments
referred to in the previous paragraphs, the settlement and the clearing of
operations to those relating to and intermediation activities
financial;
g) The supervisory and sanctionatory regime concerning the instruments and
to the activities mentioned in the previous paragraphs.
2-The references made in this Code to financial instruments must be
understood in such a way as to cover the instruments mentioned in the sub-paragraphs
a) a e) of the previous number.
3-The provisions of headings I, VII and VIII apply equally to
insurance contracts linked to investment funds and contracts of
individual adherence to open pension funds.
4-[ Previous Article No 6 ].
55
Article 3.
[...]
1-[...].
2-[...]:
a) The orders addressed to members of regulated markets or
multilateral trading systems registered in the CMVM and the
operations carried out in these markets or systems;
b) [...];
c) [...].
CHAPTER III
Information
Article 7.
[...]
1-A information relating to financial instruments, markets where
are negotiated, the activities of financial intermediation, the settlement
and the clearing of operations to public securities offers
and issuers must be complete, truthful, current, clear, objective and
lycites.
2-[...].
3-[...].
4-For advertising on financial instruments and activities
regulated in this Code is applicable the general regime of advertising.
Article 8.
[...]
1-[...].
2-[...].
3-In the case of the interim information or financial information
quarterly or midterms have been subject to audit or the review
56
limited, the audit or review report is included; if not the
have been, is declared such a fact.
Article 16.
[...]
1-Who achieves or exceeds 10%, 20%, one-third, half,
two thirds and 90% of the voting rights corresponding to the social capital
of an open society, subject to Portuguese personal law, and who reduzes
your participation for lower value to any of those limits should,
within four days of trading after the day of the occurrence of the fact
or of your knowledge:
a) To inform this fact the CMVM and the participating society
b) [...].
2-It shall also be subject to the duties referred to in the preceding paragraph:
a) Who reaches or exceeds 5%, 15% and 25% share of the
voting rights corresponding to the social capital and who reduces the
your participation for lower value to any of those limits,
relatively to:
i) Open society, subject to Portuguese personal law, issuer
of shares or other securities confirming
right to your subscription or acquisition, admitted to trading
on regulated market situated or operating in
Portugal;
ii) Society, with registered office in another Member State,
issuer of shares or other securities which
confirm right to your subscription or acquisition,
exclusively admitted to trading on market
regulated situated or operating in Portugal;
iii) Society whose registered office is located outside the European Union,
issuer of shares or other securities which
confirm right to your subscription or acquisition, admitted to the
trading on regulated market situated or the
work in Portugal, in relation to which the CMVM is
57
competent authority pursuant to Art. 244; and
b) Who reaches or exceeds 2% participation and who reduces his / her
participation for lower value than that percentage of the rights to
vote corresponding to the planned open society social capital
in the subparagraph i) of the preceding paragraph whose statutes establish that
in deliberation of the general assembly will not be counted votes
above certain number, when issued by a single shareholder, in
name of its own or also as a representative of another.
3-For the purposes of the previous figures:
a) It is assumed that the participant is aware of the fact
determinant of the duty of communication within the maximum period of two
days of trading after the occurrence of that;
b) Voting rights are calculated on the basis of the whole
shares with voting rights, not reliefs on the calculation to
suspension of the respective exercise.
4-A communication carried out in the terms of the preceding paragraphs includes:
a) The identification of the entire chain of entities to whom the participation
qualified is imputed in accordance with Article 20 (1),
regardless of the law to which they find themselves subject;
b) The percentage of voting rights attributable to the holder of
qualified participation, the share of social capital and the
number of corresponding shares, as well as, where applicable, the
discrimination of participation by category of shares;
c) The date on which the participation reached, surpassed or was reduced
to the thresholds provided for in paragraphs 1 and 2.
5-Should the duty of communication be entrusted to more than one participant
a single communication can be made, which exonates the participants of the
duty to communicate to the extent that the communication is considered to be done.
6-When the exceeding of the relevant thresholds result, in the terms of the
point ( e) of Article 20 (1) of the detention of financial instruments
which confirm to the participant the right to the acquisition, exclusively by
your initiative, by force of agreement, of shares with voting rights, already
issued by an issuer whose shares are admitted to trading in
regulated market, the participant shall:
58
a) Aggregate, in communication, all instruments that have the
same underlying asset;
b) Making as many communications as the issuers of the assets
underlying of a same financial instrument;
c) Include in the communication referred to in the preceding paragraph, the indication of the
date or period in which the acquisition rights that the instrument
conferring may be exercised, and of the date on which the instrument
expires
7-When the reduction or overpassing of the relevant thresholds results, in the
terms of the point g) of Art. 20 (1) of the allocation of powers
discretionaries for a single general assembly:
a) Who confers discretionary powers can, at that time, make
a single communication, provided that it explains the required information
in paragraph 5 referring to the beginning and the end of the allocation of powers
discretionary ones for the exercise of the right to vote;
b) The one to whom the voting rights are imputed may make a
single communication, at the time it is conferred on it
discretionary powers, provided that in this explicite the information
required in paragraph 5 concerning the beginning and the term powers
discretionary for the exercise of the right to vote.
8-The duties set out in this article do not apply to shareholdings
resulting from transactions involving members of the European System of
Central banks, acting on the quality of monetary authorities, in the
scope of a guarantee, a repurchase agreement or an agreement
similar of authorized liquidity for monetary policy reasons or in the
scope of a payment system, provided that the transactions are
carry out within a short period of time and as long as they are not
exercised the voting rights associated with the actions in question.
Article 17.
[...]
1-A Participated society to make public, by the means referred to in paragraph 3 of the
article 244, all the information received pursuant to Rule 16, the
59
as soon as possible and within three days of trading after
reception of the communication.
2-A Participated society and the holders of its social bodies, as well as
the managing entities of regulated markets in which they are
admitted to trading shares or other securities that
they confirm the right to their subscription or acquisition by the one issued,
must inform the CMVM when they have knowledge or fundata
indications of failure to comply with the information duties provided for in the
article 16 para.
3-[...].
4-The communications and publications referred to in this article may
be carried out in a language of current use in financial markets
international if that has been used in the communication it gave you
origin.
Article 18.
Days of trading
1-For the purposes of this section, the trading days are deemed to be
those in which it is open for trading the regulated market
in which the shares or the other securities confirming right to the
your subscription or acquisition are admitted.
2-A CMVM shall disclose in its information dissemination system the
calendar of trading days of the regulated markets situated
or working in Portugal.
Article 20-The
[...]
1-[...].
2-To benefit from the derogation of aggregated imputation of rights from
vote, the society that exercises dominance over the managing entity or about
the financial intermediary shall:
a) Send to CMVM the updated list of all the managing entities and
60
financial intermediaries under domain relation and, in the case of
entities subject to foreign personal law, indicate the respective
supervisory authorities;
b) Send to the CMVM a reasoned statement, concerning each
managing entity or financial intermediary, of which it fulfils the
provisions of the preceding paragraph;
c) Demonstrate to the CMVM, on request, that organizational structures
of the relevant entities ensure the independent exercise of the
voting rights, which the people who exercise the voting rights
act independently and that, in cases where the society
dominant receives services provided by the domed entity or
holds direct holdings in assets by this managed, there is a
written and clear mandate that fixed the contractual relationship of the parties to
consonance with normal market conditions for situations
similar.
3-For the purposes of the c) of the previous number the relevant entities
should establish, at the very least, written policies and procedures that
to prevent, in proper terms, access to information concerning the
exercise of voting rights.
4-[ Previous Article No 3 ].
5-Should imputation be due solely to the detention of
financial instruments that confirm to the participant the right to
acquisition, exclusively for its initiative, by force of agreement, of
shares with voting rights, already issued by an issuer whose shares
are admitted to trading on regulated market, suffice, to
effects of paragraph 2, which the society referred to therein send to the CMVM the information
provided for in paragraph (a) of that number.
6-For the purposes of paragraph 1:
a) Direct instructions are considered as given by the society
dominant or other entity by this dominate that needs the
how they are exercised the voting rights in concrete cases;
b) They consider themselves to be indirect instructions which, in general or particular,
regardless of their form, they are transmitted by the society
dominant or any entity by this dominated, and limit the
61
discretization margin of the managing entity, intermediate
financial and associated society of pension funds
regarding the exercise of voting rights so as to serve
specific business interests of the dominant society or of
another entity by this one dominated.
7-[ Previous Article No 4 ].
8-[ Previous Article No 5 ].
9-Before issuing the statement provided for in paragraph 7, the CMVM gives
knowledge of the same to the Insurance Institute of Portugal whenever
refer to pension funds.
Article 23.
Proxy
1-A convocation of general assembly mentions the availability of a
request form, indicating how to request it, or provide the
form of the proxy.
2-[ Previous Article No 1 ].
3-The type document used in the proxy solicitation is sent to the
CMVM before sending to the holders of the right to vote.
4-[ Previous Article No 3 ].
Article 30.
[...]
1-[...].
2-[...].
3-For the purposes of Title VI, they are also considered investors
qualified:
a) People who provide investment services, or exercise
investment activities, which consisted, exclusively, in the
trading on its own in the forward markets or the counted,
in this case with the sole purpose of covering positions in the markets
of derivatives, or in the negotiation or participation in the formation of
62
prices on the account of other members of the said markets, and that
are guaranteed by an compensating member who on the same
act, when the responsibility for the implementation of the contracts
celebrated is taken over by one of those members;
b) The legal persons, the size of which, according to their
last individual accounts, satisfy two of the following criteria:
i) Net situation of € 2 million;
ii) Total assets of € 20 million;
iii) Volume of net turnover of € 40 million.
c) The persons who have applied for the treatment as such, in the
terms set out in Section IV of Chapter I of that Title.
4-A CMVM may, by regulation, qualify as investors
qualified other entities endowed with a special competence and
experience relating to financial instruments, notably
securities issuers, setting out the economic indicators-
financial that allow this qualification.
Article 31.
[...]
1-Gozam of the right of popular action for the protection of interests
homogeneous or collective individual investors of unqualified investors
in financial instruments:
a) [...];
b) [...];
c) The foundations that have an end to the protection of investors in
financial instruments.
2-[...].
3-[...].
Article 32.
[...]
[...]:
63
a) Have as their main statutory object the protection of the
interests of investors in financial instruments;
b) [...];
c) [...].
Article 33.
[...]
1-A CMVM organizes a service intended for voluntary mediation of
conflicts between unskilled investors, by a party, and
financial intermediaries, advisors for investment, entities
gestures from regulated markets or trading systems
multilateral or issuers, on the other.
2-[...].
Article 35.
[...]
1-The managing entities of regulated markets, of systems of
multilateral trading, of settlement systems, of the chamber of
compensation or central counterparty may constitute or promote the
constitution of guarantee funds.
2-The guarantee funds are aimed at ressarting unqualified investors
for the damage suffered as a result of the performance of any
financial intermediary member of the market or system, or authorized
receiving and transmitting orders for execution, and of the participants in those
systems.
3-[...].
4-The managing entities referred to in paragraph 1 may deliberate that the
participation in the fund per se constituted or promoted is mandatory
for members authorized to execute orders on account of outrain and
for the participants in the systems.
64
Article 85.
[...]
1-[...].
2-[...].
3-[...].
4-[...]:
a) The extract provided for in Article 323-C;
b) [...].
Article 97.
[...]
1-[...]:
a) Number of order, except for bearer titles;
b) [...];
c) [...].
2-[...].
3-[...].
Article 99.
[...]
1-[...].
2-[...].
3-[...].
4-The nominative securities deposited in financial intermediary maintain
your order number.
5-[...].
Article 111.
[...]
1-[...]:
65
a) [...];
b) [...];
c) [...];
d) The offers on regulated market or trading system
multilateral registered in the CMVM that are presented
exclusively through the means of own communication of that
market or system and which are not preceded or accompanied by
of prospecting or collection of investment intentions along with
indeterminate or advertising promotion recipients;
e) [...];
f) [...];
g) [...];
h) [...];
i) [...];
j) [...];
l) [...];
m) [...];
n) The public offerings of representative debt securities
issued by a term of less than one year.
2-[...].
3-[...].
4-[...].
Article 167.
[...]
It is permitted to carry out advertising actions, observing the willing
in Articles 121 and 122.
Article 198.
Organized forms of negotiation
It is permitted to operate in Portugal, without prejudice to others that the
CMVM determine by regulation, of the following organized forms of
66
trading in financial instruments:
a) Regulated markets;
b) Multilateral trading systems;
c) Systematic internalization.
Article 199.
Regulated market
1-Are regulated markets the systems that, having been authorized
as such by any member state of the European Union , are
multilateral and function regularly in order to enable the meeting
of interests relating to financial instruments with a view to the celebration
of contracts on such instruments.
2-Regulated markets authorized under Rule 217.
comply with the requirements set out in Chapter II of this Title.
Article 200.
Multilateral trading system
1-Are multilateral trading systems the systems that have this
quality and enable the meeting of interests concerning
financial instruments with a view to the conclusion of contracts on such
instruments.
2-The multilateral trading systems comply with the requirements set
in Section I of Chapter II of this Title and in the paragraphs 1 a to 9 of the article
222.
3-The provisions of Article 224 (6 a) to 9 and in Article 225 shall apply to the
multilateral trading systems.
Article 201.
Systematic internalization
1-It is systematic internalization the negotiation, by financial intermediary,
of financial instruments on their own in execution of orders of
67
customers out of regulated market and trading system
multilateral, in an organized, frequent and systematic way.
2-A systematic internalization in shares admitted to trading in
regulated market complies with the requirements set out in Chapter III
of this Title.
Article 202.
Registration in the CMVM
Regulated markets and multilateral trading systems are
subject to registration in the CMVM, as well as the rules to the same
underlying and the participating members in these markets or systems.
Article 203.
Managing entity
Regulated markets and multilateral trading systems are
managed by managing entity that fulfils the requirements set in law
special and, in respect of only multilateral trading systems,
also by financial intermediary, according to his regime.
Article 204.
Object of negotiation
1-Can be the subject of organized negotiation:
a) Fungible, freely transmittable securities,
fully released and which are not subject to pawn or the
any other legal situation that runs them, save if respected
the requirements set out in Articles 35 and 36 of the Regulation (EC)
n 1287/2006 of the Commission of August 10;
b) Other financial instruments, notably instruments
derivatives, the configuration of which allows the formation
ordered of prices.
2-Are fungible, for the purpose of organized trading, the values
68
securities that belong to the same category, comply with the same
form of representation, are objectively subject to the same
tax regime and of which they have not been assigned rights
differentiated.
Article 205.
Admission and selection for negotiation
1-A admission to trading on regulated market and selection for
negotiation in multilateral trading system depends on decision of the
respective managing entity.
2-The securities admitted to trading on market
regulated may be subsequently negotiated in other
regulated markets and in multilateral trading systems without
the consent of the issuer.
3-Ocurring the subsequent negotiation referred to in the preceding paragraph, the
issuer is not obliged to provide any additional information by
virtue of trading in these other markets or trading systems
multilateral.
Article 206.
Members
1-A The trading of financial instruments takes place in market
regulated and in multilateral trading system through the
respective members.
2-Can be admitted as financial intermediary members and others
people who:
a) Be idogenous and professionally fit;
b) Have a sufficient level of capacity and competence of
negotiation;
c) Have, where applicable, appropriate organisational mechanisms;
and
d) Have sufficient resources for the duties to be exercised.
69
3-A admission of members competes to the respective managing body, of
agreement with principles of equality and respect for the rules of sane and fair
competition.
4-A The intervention of members may consist of the mere registration of
operations.
Article 207.
Operations
1-The cast of the operations to be carried out on each regulated market and
multilateral trading system is the one defined by the respective entity
gestures.
2-The transactions on the financial instruments referred to in points d) and
e) of Article 2 (1) are carried out in the terms of the contractual clauses
general, in which they are standardized the object, the quantity, the term of the
operation, the periodicity of the loss and gain adjustments and the modality
of liquidation, drawn up by the managing entity and subject to:
a) Registration in the CMVM;
b) Approval of the CMVM, if the underlying asset has nature
notional or is made up of financial instruments not
admitted to trading on regulated market; and
c) Assent of the Bank of Portugal, if they have an asset
underlying instruments of the money and currency market.
3-A conduct of operations on the financial intruments provided for in the
subpoints ii) and iii) of the paragraph d) and in the letter e) of Article 2 (1)
depends on authorization in the terms to be fixed in joint portaria of the
Minister of Finance and the Minister of the respective sector, preceding
opinion of the CMVM and the Bank of Portugal.
4-A managing body adopts effective procedures to allow for
compensation and efficient and timely settlement of operations
carried out through its systems and clearly informs the members
of the same on the respective responsibilities for the settlement of the
operations.
70
Article 208.
Trading systems
1-The regulated market operations and trading systems
multilateral are carried out through appropriate trading systems to the
correct formation of the prices of financial instruments in them
negotiated and the liquidity of the market, ensuring in particular the
transparency of operations.
2-For good execution of the orders per se accepted, the market members
regulated or multilateral trading system introduce
offers in the trading system, according to the most appropriate modality
and in the most opportune time.
3-Business on financial instruments concluded directly
among those interested who are registered in the system through one of the
your members can be equated with market operations
regulated, in the terms of the rules approved by the managing entity.
Article 209.
Rules
1-For each regulated market or trading system
multilateral, the managing body must approve transparent rules and not
discriminative, based on objective criteria, that ensure good
operation of that, specifically relating to:
a) Requirements for admission to negotiation or selection for
negotiation and respective process;
b) Access to the quality of member;
c) Operations and offers;
d) Negotiation and execution of orders; and
e) Obligations applicable to the respective members.
2-The rules referred to in the preceding paragraph shall be subject to registration in the
CMVM, which aims at verification of its sufficiency, suitability and
legality.
3-After registration in the CMVM, the managing body publishes the rules
71
adopted, which come into force on the date of the publication or the other
in them envisaged.
Article 210.
Inherent rights
1-The patrimonial rights inherent in the securities sold
belong to the buyer since the date of the operation.
2-The buyer pays the seller, in addition to the formed price, the interest and
other right remuneration corresponding to the time elapsed after the
last due to the date of the settlement of the transaction.
3-The provisions of the previous figures do not preclude different regime from
allocation of rights inherent in the traded securities,
provided that such a regime is prior and clearly published in the terms
provided for in the rules of the regulated market or of the system of
multilateral trading.
Article 211.
Surveillance of operations
The managing body shall adopt effective mechanisms and procedures for
scrutinize compliance, by their respective members, of the rules of those
systems and for the control of operations carried out in them, by form
to identify violations to those rules, abnormal trading conditions or
behaviours that are likely to endanger the regularity of
functioning, transparency and credibility of the market.
Article 212.
Information to the public
1-For each regulated market or trading system
multilateral, the managing body shall provide the public with information
about:
a) The financial instruments admitted to trading or
72
selected for negotiation;
b) The operations carried out and their prices.
2-In the case of multilateral trading system, it is considered to be fulfilled the
duty set out in paragraph a) from the previous number if the managing entity
make sure that there is access to the information in question.
3-The content, means and periodicity of the information to be provided to the
public should be those suited to the characteristics of each system, to the
level of knowledge of the investors and the composition of the various
interests involved.
4-A CMVM may require the amendment of the rules on information
when you check that they are not sufficient for the protection of the
investors.
Article 213.
Suspension and exclusion of trading on regulated market
1-A regulated market managing entity may, unless such
measure is likely to cause significant damage to the interests
of investors and the regular operation of the market, suspend or
exclude financial instruments from trading.
2-A The suspension of the negotiation is justified when:
a) Leave to check the admission requirements or the
relevant non-compliance of other market rules, provided that the
lack is sanitable;
b) Circumstances susceptible to, with reasonable degree of, occur
probability, disrupt the regular development of the negotiation;
c) The situation of the issuer implies that the trading is detrimental
for the interests of investors.
3-A The exclusion of the negotiation is justified when:
a) Leave to check the admission requirements or the
relevant default of other rules of the market, if the lack
is not sanatable;
b) They have not been sanctioned the fallout that justified the suspension.
4-A exclusion of financial instruments whose negotiation is a condition
73
for the admission of others implies the exclusion of these.
5-A regulated market managing body makes public the decision
end of suspension or deletion of the negotiation and communicates to the CMVM a
relevant information, without prejudice to the possibility of communicating
directly to the issuer and the managing entity of other markets where
financial instruments are traded or constitute the asset
underlying derivative financial instruments.
6-A CMVM informs the competent authorities of the other States
members after the communication of market managing entity
regulated referred to in the preceding paragraph.
7-Relatively to the operations referred to in Article 207 (2):
a) The decision to suspend the negotiation should be immediately
communicated to the CMVM, which informs the Bank of Portugal if the
operations if they include those referred to in ( c) of the Article 2 (2)
207.
b) The decision of exclusion is preceded by communication to the CMVM, which
informs the Bank of Portugal if the operations are to be included in the
referred to in para. c) of Article 207 (2)
Article 214.
Powers of the CMVM
1-A CMVM can:
a) Order to the managing entity of regulated market or
multilateral trading system that proceed to the suspension of
financial instruments of the negotiation, when the situation of the
issuer implies that trading is detrimental to the
interests of investors or, in the case of managing entity of
regulated market, this one did not do so in a timely way;
b) Order to the managing entity of regulated market or
multilateral trading system that proceed to the exclusion of
financial instruments of the negotiation when it proves to
violation of the applicable laws or regulations;
c) Extend the suspension or exclusion to all markets
74
regulated and multilateral trading systems where
financial instruments of the same category are traded.
2-Immediately after order of suspension or exclusion of trading in
regulated market, under the previous number, the CMVM makes
public the respective decision and informs the competent authorities of the
other member states of the European Union.
Article 215.
Effects of suspension and exclusion
1-A The decision to suspend or to exclude produces immediate effect.
2-A suspension remains for the time strictly necessary to
regularization of the situation that gave it origin, not each period
of suspension being more than 10 working days.
3-A The suspension of trading does not exonerates the issuer of compliance with
information obligations to which you are subject.
4-If this does not preclude the urgency of the decision, the market managing body
regulated notifies the issuer to comment on the suspension
or the exclusion within the time frame for the purpose of fixing it.
5-When informed by the competent authority of another State
member of the European Union of the respective suspension decision or
exclusion of this financial instrument from trading in market
regulated from that member state, the CMVM orders the suspension or
exclusion from trading of financial instrument on market
regulated or in multilateral trading system registered in
Portugal, except where this can cause significant damage to the
interests of investors or the proper functioning of markets.
Article 216.
Regulation
The CMVM prepares the regulations necessary for the delivery of the willing
in this title, in particular on the following subjects:
a) Process of registration of regulated markets and systems of
75
multilateral trading, the rules to the same underlying and the
participating members in those markets or systems;
b) Information to be provided to the CMVM by the managing entities of
regulated markets and trading systems
multilateral;
c) Information to be provided to the public by the managing entities of
regulated markets and multilateral trading systems
and by issuers of securities admitted to trading,
specifically as to the content of the information, the means and
to the deadlines in which it is to be provided or published;
d) Mandatory disclosures in the bulletin of the regulated market.
Article 217.
Authorization
1-A The constitution and extinction of regulated markets depends on
authorization required by the respective managing entity and granted by the
Minister of Finance, upon porterie and listened to the CMVM.
2-A CMVM communicates to the European Commission and to the member states the list
of regulated markets registered in the terms of the provisions of the
article 202 para.
Article 218.
Agreements between managing entities
1-The managing entities of regulated markets located or the
working in Portugal can wake up, with each other, connection systems
informative or operative if the proper functioning of the markets by them
managed and the interests of investors to advise you.
2-The managing entities of regulated markets located or the
working in Portugal can conclude agreements with entities
counterparts in other States, predicting inter alia:
a) That in each of them be traded financial instruments
admitted to trading in the other;
76
b) That the members of each of the regulated markets
can intervene in the other.
3-The agreements to which the previous figures are referred are recorded in the
CMVM, owing to the registration being refused, in the case of the previous number, if
the regulated market situated or operating in a State no
member of the European Union does not impose similar levels of requirement
to those of the regulated market located or to operate in Portugal
as to the admission of the financial instruments to the negotiation, to the
information to be provided to the public and no others are assured
protection requirements of investors.
Article 219.
Disclosures of the managing entity
The managing entity of the regulated market shall disclose in writing:
a) A bulletin on the days when normal sessions of
regulated market;
b) Statistical information relating to the markets by you managed, without
prejudice to the provisions of secrecy;
c) The updated text of the rules why they govern the managing entity
of the regulated market, the markets per se managed and the
operations in these carried out.
Article 220.
Structure of the regulated market
In each regulated market the segments may be created
revealing necessary taking into account, inter alia, the characteristics of the
operations, of the financial instruments traded, of the entities that the
emit, from the trading system and the quantities to be transactioned.
77
Article 221.
Sessions of the regulated market
1-Regulated markets work in public sessions, which
can be normal or special.
2-The normal regulated market sessions work on time and
in the days defined by the managing entity of the regulated market,
for current trading of the financial instruments admitted to the
negotiation.
3-Special sessions are held in compliance with judicial decision or
by decision of the managing entity of the regulated market at the request of the
interested.
4-Special sessions arise in accordance with the rules laid down by the
managing entity of the regulated market, and the operations may have
by object financial instruments admitted or not to trading in
normal sessions.
Article 222.
Information on offers and trading on regulated market
1-A The managing body of the regulated market shall disclose to the public,
continuously during the normal trading time, the prices of
purchase and sale of shares and the amount of outstanding offers
relating to actions.
2-A CMVM can dispense with the fulfillment of the duty of disclosure
predicted in the previous number given the market model or the type
and to the quantity of the offers in question.
3-A The managing entity of the regulated market should disclose to the public
the following information:
a) The price, quantity, timing and other information
detailed details of each operation in actions;
b) The total amount of shares traded.
4-A CMVM may authorize the deferred disclosure of the information
referred to in para. a) of the previous number serving the type and the
78
quantity of the operations in question.
5-The information referred to in paragraphs 1 and 3 is made available in
reasonable commercial conditions.
6-Are defined in articles 17 to 20, 27 to 30 and 32 of the Regulation
(EC) No 1287/2006 of the Commission of August 10:
a) The concrete information the disclosure of which is required under the terms of the
n. ºs 1 and 3;
b) The deadlines, conditions and means of disclosure of the information provided for
in paragraphs 1 and 3;
c) The conditions of dispensation or deferrous of compliance with the
disclosure duty referred to, respectively, in paragraphs 2 and 4.
7-A The managing entity of the regulated market disseminates to the members of the
market and investors in general the mechanisms to be used for the
deferred publication referred to in paragraph 4, after obtained permission from the
CMVM as to the use of them.
8-If prices are not expressed in currency with legal tender in
Portugal, it should be clear the information as to the currency used.
9-A CMVM defines, through regulation, the content, the means and the
periodicity of the information to be provided to the public with respect to others
financial instruments traded on regulated market.
10-A The managing entity of the regulated market can provide the
access, under reasonable commercial conditions and on a non-
discriminatory, the mechanisms it uses for the disclosure of the
information provided in this article to managing entities of systems of
multilateral trading and financial intermediaries.
Article 223.
Quote
1-Where in law or in contract refers to the quotation on a certain date,
considers itself as such the closing price of the regulated market to
counted.
2-In relation to the operations carried out in each session, the managing body
of the regulated market divulges the closing price, calculated in the
79
terms of the market rules.
3-If financial instruments are admitted to trading in
more than one regulated market situated or operating in Portugal,
is taken into account, for the purposes of paragraph 1, the price made on the market
regulated situated or operating in Portugal which, pursuant to
fix in regulation of CMVM, be considered more representative.
Article 224.
Admission of members
1-A admission as a regulated market member and maintenance
of that quality depend in addition to the requirements set out in Article 206,
of the observance of the conditions laid down by the respective managing entity,
arising:
a) Of the constitution and administration of the regulated market;
b) Of the rules relating to operations in that market;
c) Of the professional standards imposed on employees of the entities
operating in the market;
d) Of the standards and procedures for the clearing and settlement of the
operations carried out in that market.
2-The members of the regulated markets that only exercise functions
of trading may only be admitted after they have concluded contract
with one or more members that ensure the settlement of the operations
by them negotiated.
3-A The managing entity of a regulated market cannot limit the
maximum number of its members.
4-A The quality of a member of the regulated market is not dependent on the
entitlements of any parcel of the social capital of the managing entity.
5-The rules regarding the quality of regulated market member
enable remote access to the same by investment firms and
authorized credit institutions in other member states of the Union
European, save if the procedures and trading systems of the
market in question to require a physical presence for the completion of the
operations at the same.
80
6-A regulated market manager registered in Portugal
may make available, in the territory of other member states,
appropriate mechanisms to facilitate access to that market and the
negotiation on the same by remote members established in the
territory of those other member States owing, to the effect,
communicate to the CMVM the member state in which it intends to make available
these mechanisms.
7-Within a month, counted from the date of the communication referred to in the
previous number, CMVM communicates that intention to the authority
competent of the Member State in which the managing body intends to
make such mechanisms available.
8-A request of the competent authority referred to in the preceding paragraph, the
CMVM informs you, within a reasonable time, of the identity of the members
remote from the authorised market in Portugal established in that State
member.
9-A The regulated market manager communicates to the CMVM a
list of the respective members, the periodicity of this communication being
established by regulation of the CMVM.
10-In the circumstances provided for in Article 16 of the Regulation (EC)
n ° 1287/2006 of August 10, the CMVM establishes with the authority
competent from the member state in which the mechanism was made available
cooperation agreement aiming at proper market supervision
regulated in question.
Article 225.
Remote access to authorized markets abroad
1-A available, on national territory, of appropriate mechanisms to
facilitate access and negotiation on the regulated regulated market
in another member state of the European Union, by remote members
established in Portugal depends on communication to the CMVM, by
competent authority of the State in which the regulated market was
authorized:
a) Of the intention of the managing body to make these mechanisms available
81
in Portugal; and
b) From the identity of the members of that market who find themselves
established in Portugal, at the request of the CMVM.
2-A CMVM may authorise the provision, in national territory, of
appropriate mechanisms to facilitate access and trading on the market
authorized in a State that is not a member of the European Union since
that those find themselves subject to legal and supervisory requirements
equivalents.
Article 226.
Duties of members
1-The regulated market members shall:
a) Abide by the decisions of the bodies of the market managing entity
regulated that are taken in the context of the provisions
legal and regulatory applicable in the market where they act; and
b) Providing the managing entity of the regulated market as
information necessary for the good management of the markets, albeit such
information are subject to professional secrecy.
2-Each of the members of the regulated market designates a holder of the
your body of administration, or a representative with basting powers,
as a direct interlocutor before the managing body of the market
regulated and the CMVM.
Article 227.
Admission to trading on regulated market
1-[...].
2-Are defined in Articles 35 to 37 of the Regulation (EC) No
1287/2006, of the Commission of August 10, the characteristics of the
different categories of financial instruments that are to be held in
consideration for the managing entity of the regulated market when assessing
if the same has been issued in terms that allow your admission to the
negotiation.
82
3-The issuer must meet the following requirements:
a) Have been constituted and be operating in compliance with the
respective personal law;
b) Comprove that it has compatible economic and financial situation
with the nature of the securities to be admitted and with the market
where the admission is requested.
4-[ Previous Article No 3 ].
5-The issuer has a duty to, within 90 days after its issuance,
request admission of the shares belonging to the category of the already
admitted.
6-The shares may be admitted to the negotiation after final enrollment
of the constitutive act of the society or of the increase in capital in the register
commercial, even if it is not carried out the respective publication.
7-A The managing entity of the regulated market establishes and maintains
effective mechanisms for:
a) Verify that issuers of securities admitted to the
trading on the regulated market meet the obligations of
applicable information;
b) Making it easier for members of the regulated market to access the
information that has been disclosed to the public on the part of the
issuers;
c) Check regularly if the securities that are
admitted to trading on the regulated market continue to
comply with the admission requirements.
Article 228.
Admission to the market for official quotes
1-In addition to those provided for in paragraph 3 of the preceding Article, the issuer of values
securities to be negotiated in market that form official quotation must
meet the following requirements:
a) To develop its activity for at least three years;
b) Have published, in the terms of the law, its management reports and
annual accounts for the three years prior to the one in which the
83
admission is requested.
2-If the issuing company has resulted in merger or division, the requirements
of the points a) and b) of the previous number consider themselves to be satisfied if
to check in one of the merged societies or in the fissile society.
3-A CMVM can dispense with the requirements of the points a) and b) of paragraph 1
when the interests of the issuer and investors advises him and the
requirement of the point b) of paragraph 3 in the previous article, by itself, allow the
investors form an enlightened judgement on the issuer and the values
securities.
Article 229.
Admission of shares to trading in the market for official quotations
1-Can only be admitted to the market trading which form quotation
officer actions in respect of which:
a) Please check, up to the time of admission, an appropriate degree of
dispersion by the public;
b) If it provides for stock capitalization of at least one million of
euros, or, if the bolstive capitalization cannot be determined, the
own capitals of society, including the results of the latter
exercise, be it at least one million euros.
2-Presume that there is an adequate degree of dispersion when the actions
which are the subject of the application for admission to trading if they are
dispersed by the public in a proportion of at least 25% of the capital
social subscript represented by that category of shares, or, when,
due to the high number of shares in the same category and due to
amplitude of its diffusion among the public, is assured a
regular operation of the market with a lower percentage.
3-In the case of application for admission of shares of the same category of shares
already admitted, the suitability of the dispersion by the public should be analyzed
in relation to the totality of the shares admitted.
4-Do not apply the provisions of paragraph b) of paragraph 1 in cases of admission to the
trading in shares of the same category of the already admitted.
5-A The managing entity of the regulated market may require a
84
stock capitalisation higher than that provided for in the b) of paragraph 1 if it exists
a further national regulated market for which the requirements
in that matter are equal to those referred to in the same paragraph.
Article 230.
Admission of bonds to trading in the market of official quotations
1-Can only be admitted to the market trading which form quotation
official bonds representative of bond loan or of
any of your series whose amount is equal to or greater than € 200000.
2-A admission of convertible bonds into shares or with a right to
subscription of shares to market that form official quotation depends on
prior or concurrent admission of the shares to which they confer law or
shares belonging to the same category.
3-A The requirement of the preceding paragraph may be waived by the CMVM if such
is permitted by the personal law of the issuer and this shall demonstrate that the
holders of the obligations have the necessary information to
form a founded judgment as to the value of the shares in which the
obligations are convertible.
4-A admission of convertible bonds into shares or with a right to
subscription of shares already admitted to trading on market
regulated situated or operating in a Member State of the Union
European where the issuer has its registered office depends on prior consultation to
authorities of that member state.
5-Do not apply the provisions of paragraph b) of Article 227 (3) and in the
points a) and b) of Article 228 (1) to the admission of obligations:
a) Representative of national or foreign public debt;
b) Issued by the Autonomous Regions and by local authorities
Portuguese;
c) Issued by public institutes and Portuguese public funds;
d) Guaranteed, solidly and unconditionally, by the Portuguese State
or by foreign state;
e) Issued by international legal persons of a public character
and by international financial institutions.
85
Article 231.
Special provisions on the admission of securities subject to
foreign law
1-Saved in cases where the securities are admitted to the
trading on regulated market situated or operating in
Member State of the European Union, CMVM may require the issuer to
presentation of legal advice attests to the requirements of n. ºs 1 and 2 and
of the paragraph a) of Article 227 (3)
2-[...].
3-[...].
Article 232.
[...]
1-[...].
2-A The managing entity may authorize the celebration of business over values
securities, issued or to be issued, the subject of public supply of distribution
about which incited application for admission, in short time period prior to the
admission to market since subject to the condition of admission if
make it effective.
3-[ Previous Article No 2 ].
Article 233.
Application for admission
1-[...].
2-[...].
3-[...].
4-The issuer of securities admitted to trading on market
regulated must, at the time it requests admission, appoint
a representative with a bastant powers for relations with the market
and with the CMVM.
86
Article 234.
Decision for admission
1-[...].
2-[...].
3-[...].
4-When the managing entity of the regulated market admits values
securities to the trading without consent of the respective issuer
should inform this of this fact.
Article 236.
[...]
1-[...].
2-[...]:
a) Securities referred to in points a ), b ), c ), d ), f ), g ), h ), i ),
j ), l) and n) of Article 111 (1) and (1) a) of the Article 2 (2)
134., under the conditions laid down there;
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) [...].
3-[...].
Article 244.
[...]
1-The following entities send the CMVM the documents and the
information to which the following articles relate, up to the time of
your disclosure, if another deadline is not particularly foreseen:
87
a) Issuers, subject to Portuguese personal law, of shares and of
securities representative securities with nominal value
less than € 1,000 admitted to trading on market
regulated located or operating in Portugal or in another
Member state;
b) Issuers, with registered office in another member state of the
European Union, of the values referred to in the preceding paragraph
exclusively admitted to trading on market
regulated situated or operating in Portugal;
c) The issuers, whose registered office is located outside the European Union,
of the securities referred to in para. a) admitted to the
trading on regulated market situated or operating in
Portugal or in another member state, provided that, in the latter case, the
CMVM to be the respective competent authority;
d) Issuers of securities not covered by the points
previous admitted to trading on regulated market
situated or operating in Portugal or in another member state,
provided that the CMVM is the respective competent authority.
2-The persons who have applied for admission to the trading of the values
securities referred to in the above points without the consent of the
Issuers whenever they disclose the information referred to in the articles
following send it simultaneously to the CMVM.
3-Securities issuers admitted to trading in market
regulated situated or operating in Portugal and in market
regulated situated or operating in a State not belonging to the
European Union sends to the CMVM the additional information that, being
relevant to the assessment of the securities, are obliged to
provide to the authorities of that State within the time specified in the legislation
applicable.
4-The information required in the following articles is:
a) Disclosed in such a way as to allow investors from all over
Community the fast access, within the deadlines especially
anticipated, and without specific costs to such information on a basis
non-discriminatory; and
88
b) Sent to the system provided for in Article 367.
5-For the purposes of the a) of the preceding number the entities referred to in the n.
1 must:
a) Transmit the information in unedited full text, and may, in the
Respect to the information referred to in Articles 245, 246 and
246.-A, limit itself to release a statement reporting from the
provision of this information and indicating the sites of
Internet , in addition to the mechanism provided for in Article 367, where the
information can be obtained;
b) Ensuring that the transmission of the information is done by a means
insurance, which minimizes the risks of corruption of data and access
unauthorized and that ensures the authenticity of the source of the
information;
c) Ensure the safety of the reception by the immediate correction of
any failure or interruption in the transmission of the information;
d) Ensuring that the transmitted information is identifiable as
information required by law and that allows for clear identification of the
issuer, the subject matter of the information and the date and time of the
transmission;
e) Communicating to the CMVM, on request, the name of the person who conveyed the
information, data relating to the validation of the mechanisms of
safety employed, date, time and a half in which the information was
transmitted and, if applicable, data relating to embargo imposed on
dissemination of information.
6-A CMVM, with respect to the required information and in any of the
cases referred to in the following articles, may:
a) Making them disclose at the expense of the entities to such obliges, in case
these refuse to abide by the orders that, under the law, by it
are given to them;
b) Decide to make them public through the system provided for in the article
367.
7-Securities issuers admitted to trading in market
regulated they place and maintain on their website for a year,
save other specially anticipated deadlines, all information that
89
are required to make public under this Code, of their
regulation and materially related legislation.
8-[ Previous Article No 6 ].
Article 245.
[...]
1-The entities referred to in Article 244 (1) disclose, within the period of
four months from the end date of the exercise and keep to the
provision of the public for five years:
a) The management report, the annual accounts, the legal certification of
accounts and other accountability documents required by
law or regulation, yet they have not been subjected to
approval in general assembly;
b) [...];
c) Statements by each of the responsible persons of the issuer,
whose names and functions must be clearly stated, where
affirm that, as much as it is from your knowledge, the information
provided for in paragraph (a) has been drawn up in accordance with the
applicable accounting standards, giving a true picture and
appropriate of the asset and the liability, financial situation and the
results of the issuer and the companies included in the perimeter of the
consolidation, when it is the case, and that the management report exposes
faithfully the evolution of the business, the performance and the position of the
issuer and the companies included in the perimeter of the consolidation,
as well as a description of the main risks and uncertainties with
that are defaced.
2-The report referred to in para. b) of the previous number is disclosed in the
full, including:
a) [...];
b) [...].
3-issuers required to draw up consolidated accounts disclose the
information referred to in paragraph 1 in the individual form, drawn up in accordance
with national legislation, and in consolidated form, drawn up accordingly
90
with Regulation (EC) No 1606/2002.
4-Issuers not required to draw up consolidated accounts disclose the
information referred to in paragraph 1 in the individual form, drawn up in accordance
with the national legislation.
5-[ Previous Article No 4 ].
6-The documents that integrate the report and the annual accounts are submitted
to CMVM as soon as they are placed at the disposal of shareholders.
Article 246.
[...]
1-The issuers of shares and representative securities of
debt referred to in Article 244 (1) discloses, up to two months after the
term of the 1 ° semester of the financial year, concerning the activity of that
period, and keep at the disposal of the public for five years:
a) The condensed financial statements;
b) An interim management report;
c) Statements by each of the responsible persons of the issuer,
whose names and functions must be clearly stated, where
affirm that, as much as it is from your knowledge, the information
provided for in paragraph a) of paragraph 1 has been drawn up in accordance with
the applicable accounting standards, giving an image
true and appropriate of the asset and the liability, of the situation
financial and the results of the issuer and the companies included in the
perimeter of the consolidation, when it is the case, and that the report of
interim management faithfully exposes the information required in the
terms of paragraph 2.
2-The interim management report shall contain at least one indication
of the important events that have occurred in the period to which
refers to and the impact on the respective financial statements, well
as a description of the main risks and uncertainties for the six months
following.
3-issuers required to draw up consolidated accounts:
a) They must draw up the financial statements in accordance with the
91
international accounting standards applicable to reports
intercalares financial adopted pursuant to the Regulation
(EC) No 1606/2002;
b) The information referred to in the preceding paragraph is only disclosed under
consolidated form, save if the accounts on an individual basis
contain significant information;
c) Issuers of shares must include still information on the
major relevant transactions between related parties
performed in the first six months of the exercise they have
significantly affected their financial situation or the
performance as well as any changes to the information included
in the preceding annual report likely to have an effect
significant in their financial position or performance in the
first six months of the current exercise.
4-If the issuer is not obliged to draw up consolidated accounts, the
condensed financial statements include at least one
balance sheet and a demonstration of condensed results, elaborated from
agreement with the principles of recognitions and measurement applicable to the
elaboration of the annual financial reports, and explanatory notes to those
accounts.
5-In cases provided for in the preceding paragraph:
a) The condensed balance sheet and the demonstration of condensed results
must submit all items and subtotals included in the
last annual financial statements of the issuer, being
added the additional items required if, due to
omissions, the semiannual financial statements reflect a
deceptive image of the asset, liabilities, financial position and
of the results of the issuer;
b) The balance sheet shall include comparative information referred to the end of the
exercise immediately precedent;
c) The statement of results should include comparative information
on the corresponding period of the preceding financial year;
d) The explanatory notes must include sufficient information for
ensure the comparability of financial statements
92
semestrals condensed with the annual financial statements and
the correct apprehension, by users, of any
significant change in amounts and developments in the period
semestral in cause reflected in the balance sheet and demonstration of
results;
e) Issuers of shares must include, at a minimum, information
on the main relevant transactions between related parties
performed in the first six months of the exercise referring
in particular the amount of such transactions, the nature of the
relevant relationship and other information necessary to the understanding of the
financial position of the issuer if such transactions are relevant
and have not been completed under normal market conditions.
6-For the purposes of the e) from the previous number, transactions between parties
related can be aggregated according to their nature,
except if separate information is necessary for the understanding of the
effects of the transaction on the financial position of the issuer.
Article 247.
[...]
The CMVM, through regulation, establishes:
a) [...];
b) The documents to be submitted for compliance with the provisions of the
numbers 1 a to 4 of Article 245 and in Article 246;
c) [...];
d) [...];
e) The content and the deadline for dissemination of quarterly information and the
content of the interim information of the administration;
f) [...];
g) [...];
h) The terms and conditions in which it is communicated and made accessible to
information relating to the transactions provided for in Article 248-B,
particularly the possibility of such communication being carried out of
aggregate form, depending on a certain amount and a
93
specific time period.
Article 249.
[...]
1-The entities referred to in Article 244 (1) send to the CMVM and to the
regulated market managing entity:
a) [...];
b) [...].
2-The entities referred to in Article 244 (1) inform immediately
the public about:
a) [...];
b) Amendment, allocation and payment or exercise of any
rights inherent in the securities admitted to trading
or to the actions to which these give right, including indication of the
applicable procedures and the financial institution through which
the shareholders may exercise their respective patrimonial rights;
c) [...];
d) Issuance of shares and obligations, with an indication of the privileges and
guarantees that they benefit, including information on
any procedures for attribution, subscription, cancellation,
conversion, exchange or refund;
e) Changes to the elements that have been required for the
admission of the securities to the negotiation;
f) The acquisition and disposal of own shares, where in
result of the same as the percentage of the same exceeds or become
lower than the limits of 5% and 10%;
g) The deliberation of the general assembly concerning the documents of
provision of accounts.
3-The issuers of shares in Article 244 (1) discloses the total number
of voting rights and the social capital at the end of each calendar month in which
an increase or a decrease of that total number occurs.
4-A convocation for the assembly of securities holders
representative of debt admitted to trading on market
94
regulated shall comply with the provisions of Article 23 (1).
Article 250.
[...]
1-With the exception of the provisions of Articles 245 to 246.-A, in the a) from the
n Article 249 (1), a) a d) and f) of Article 249 (2) and paragraph 3 of the article
249., CMVM may dispense the disclosure of the information required in the
previous articles when it is contrary to the public interest and may
cause serious injury to the issuer, provided that the absence of
disclosure does not induce the public in error on facts and circumstances
essential for the evaluation of securities.
2-[...].
Article 252.
Systematic internalizers
They are regulated in Art. 21 of Regulation (EC) No 1287/2006 of the
Commission, of August 10:
a) The requirements for a financial intermediary to be considered
systematic internalizer;
b) The procedure for the loss of the quality of internalizer
systematic in a given category of actions.
Article 253.
Information on offers
1-Systematic internalizers must disclose the firm prices to which
they propose to negotiate shares admitted to trading on the market
regulated for which there is a liquid market, where the
quantity of the offer is not superior to the normal market volume.
2-Regarding the shares for which there is no net market, the
systematic internalizers should disclose price offers to their
customers at the request of these.
95
3-The shares are to be grouped into classes based on the average
arithmetic of the value of orders executed on the market.
4-Each offer of sale and purchase must include the firm price for a
or more quantities up to the normal market volume for the class of
shares to which the object share of the offer belongs.
5-The offered price should reflect the prevailing market conditions
for that action.
6-A disclosure to the public provided for in paragraph 1 shall be carried out in a manner
easily accessible, in a regular and continuous way, during the time
normal of trading, and on a reasonable commercial basis.
7-Are defined in articles 22, 23, 24 and 29 to 32 of the Regulation
(EC) No 1287/2006, of the Commission, of August 10 and in regulation of the
CMVM:
a) The concept of the liquid market;
b) The normal market volume for each class of shares;
c) The conditions under which the prices offered meet the provisions of the
n. 4;
d) The deadline and means of disclosure of the offers.
Article 254.
Classes of shares
1-In cases where the Portuguese market is considered, for a
determined action, the most relevant market in terms of liquidity, the
CMVM, annually, shall determine and disclose the class of shares to
that the same belongs, as defined in paragraph 3 of the preceding Article.
2-A The determination provided for in the preceding paragraph shall have on the basis of:
a) The most relevant market concept in terms of liquidity
defined in Article 9 of Regulation (EC) No 1287/2006 of the
Commission, of August 10;
b) The liquidity indicators provided for in Article 9 of the Regulation
(EC) No 1287/2006 of the Commission of August 10.
96
Article 255.
Updating and withdrawal of offers
Systematic internalizers can at any time update the
its offers of price, only those may withdraw under market conditions
exceptional.
Article 256.
Access to offers
1-Systematic internalizers should draw up clear, based rules
in its commercial policy and in objective criteria and not
discriminations, relating to investors to whom they provide access to the
your price offers.
2-Without prejudice to the provisions of Article 328, the internalizers
systematics can:
a) Refuse to initiate or terminate commercial relations with
investors on commercial order grounds, such as the situation
investor financial, counterparty risk and final settlement
of the operation;
b) Limit, in a non-discriminatory manner, the number of orders of a
client who undertakes to perform in the conditions disclosed,
in order to reduce the risk of exposure to multiple operations of the
same customer;
c) Limit, in a non-discriminatory manner, the total number of operations
concurrent of different customers, when the number or the
quantity of the orders of the customers exceeds considerably the
normal, in accordance with the provisions of Article 25 of the Regulation
(EC) No 1287/2006 of the Commission of August 10.
Article 257.
Execution of the orders and change of the offered price
1-Systematic internalizers must carry out the orders they receive
97
of its customers, in relation to the shares for which they are
systematic internalizers, at the prices per se disclosed at the time
of the reception of the order.
2-Systematic internalizers can execute orders received from a
customer who is qualified investor at a better price, provided that:
a) The new price is situated within a range of variation,
disclosed to the public and close to market conditions;
b) The quantity of the order received is higher than the
volume of orders given customarily by an investor not
qualified, as defined in Article 26 of the Regulation
(EC) No 1287/2006 of the Commission of August 10.
3-Systematic internalizers can execute orders received from the
your customers who are qualified investors at prices other than the
offered and without observance of the conditions set out in the number
previous, when it deals with operations resulting from partial executions
or of orders subject to conditions other than the current price of
market, as set out in Article 25 of the Regulation (EC) No
1287/2006 of the Commission of August 10.
4-A systematic internalizer that makes price offers for a single
quantity, or whose greatest quantity is less than the normal volume of
market, and receive an order from a customer with superior dimension to the
amount of your offer but lower than the normal market volume,
may decide to carry out the part of the order in which this exceeds the quantity
of your offer, provided that you perform it at the price indicated or at another price,
in the latter case if allowed under the n. paragraphs 2 and 3.
5-Whenever the systematic internalizer makes price offers for
different quantities and receive an order between those same
quantities that decide to perform, shall execute the order to one of the prices
disclosed or at another price, in the latter case if allowed under the shelter
of the n. ºs 2 and 3.
98
Article 258.
Scope
1-The provisions of this Chapter shall apply to all operations in which
an entity has assumed the position of central counterparty.
2-When an entity assumes the position of counterparty in the operations,
these are only effective before it after your registration.
3-A realization of operations on regulated market or in system of
multilateral trading on the financial instruments referred to in the
points d) and e) of Article 2 (1) requires the interposition of counterparty
central.
Article 259.
Management of operations
1-A The central counterparty shall ensure the sound management of the operations, in
particular:
a) The registration of positions;
b) The management of the guarantees provided, including the constitution, the
reinforcement, reduction and release;
c) The adjustments of gains and emerging losses from registered operations.
2-When the defence of the market requires it, the central counterparty may,
specifically:
a) Determine the adoption of the necessary measures to decrease the
exposure to the risk of a compensating member, specifically
shutting down positions;
b) Promote the transfer of positions to other members
compensators;
c) Determine the reference prices in a separate way from the forecast
in the rules.
3-The open positions in the instruments referred to in points d) and e) of the n.
1 of Article 2 may be terminated, before the due date of the
contract, through the opening of inverse sense positions.
4-The compensating members are responsible to the counterparty
99
central for the fulfilment of the obligations resulting from operations by you
taken over, by your account or on account of the members negotiators
to whom they have assumed the compensation function of the operations.
Article 260.
Minimization of risks
1-It is up to the central counterparty to take appropriate action to the
minimization of risks and the protection of the clearing system and the
markets, and should evaluate with a periodicity, at the annual minimum, the
your level of exposure.
2-For the effects of the previous number, the central counterparty:
a) It should adopt safe systems for risk management and monitoring;
b) It should establish appropriate procedures to be done in the face of flaws and
defaults of its members;
c) It can create funds intended, ultimately, for distribution
of the losses among all compensating members.
3-A central counterparty must identify the respective sources of risk
operational and minimise them through the establishment of systems,
appropriate controls and procedures, notably developing
contingency plans.
Article 261.
Margins and other guarantees
1-A exposure to the risk of the central counterparty and its members shall be
covered by cautions, designated margins, and other guarantees, saved
when, depending on the nature of the operation, they are waived in the
cases and in the terms to be established in regulation of the CMVM.
2-A central counterparty shall set the margins and other guarantees to be provided
by its members on the basis of risk parameters that must be
subject to regular review.
3-The compensating members are responsible for the constitution, by the
reinforcement or the replacement of the collateral.
100
4-A collateral shall be provided through:
a) Financial guarantee contract provided for in Decree-Law n.
105/2004, of May 8, on low financial instruments
risk and high liquidity, free of any burden, or on
deposit of money in authorised institution;
b) Bank guarantee.
5-About the values given in escrow may not be constituted other
guarantees.
6-Compensating Members shall adopt procedures and measures
to adequately cover exposure to risk, and to require the
your clients or to the members negotiators to whom they have
assumed functions of clearing the delivery of margins and other
guarantees, in the terms defined by contract with them concluded.
Article 262.
Extrajudicial execution of the guarantees
1-Financial instruments received in escrow can be sold
extrajudicially to the satisfaction of the emerging obligations of the
operations cautioned or as a consequence of the closure of
positions of the members who have provided the surety.
2-A extrajudicial execution of the cautions shall be carried out by the counterparty
central, through financial intermediary, whenever that unreviewed
this nature.
Article 263.
Segregation patrimonial
The central counterparty shall adopt a structure of accounts that allows a
adequate segregation of equity among the financial instruments of its own
of its members and those belonging to the customers of the latter.
101
Article 264.
Participants
1-A central counterparty shall define the conditions of access of the members
compensators and the obligations that on them impend, so as to
ensure high levels of creditworthiness and limitation of risks,
not least by imposing them that gather financial resources
sufficient and that they are endowed with a robust operational capability.
2-A central counterparty adopts appropriate procedures for monitoring
of compliance, on a regular basis, of the access requirements of the
members.
Article 265.
Central counterparty rules
1-A central counterparty must approve transparent rules and not
discriminative, based on objective criteria, that ensure the
appropriate performance of its functions, concerning, in particular, the
material referred to in Articles 259, 260, 261, 263 and 264.
2-The rules referred to in the preceding paragraph shall be subject to registration in the
CMVM, which aims at verification of its sufficiency, suitability and
legality.
3-After registration in the CMVM, the central counterparty publishes the rules
adopted, which come into force on the date of the publication or the other
in it envisaged.
4-A CMVM defines, in regulation, the elements subject to registration and the
respective process.
Article 266.
[...]
1-The settlement systems of financial instruments are created by
written agreement by which to establish common rules and procedures
standardized for the execution of transfer orders, among the
102
participants, of financial instruments or their rights
highlighted.
2-[...].
3-The money transfers associated with transfers of
financial instruments or the rights to them inherent and the guarantees
relating to operations on financial instruments are part
member of the settlement systems.
Article 268.
[...]
1-[...].
2-[...]:
a) [...];
b) Managing entities of regulated markets, of systems of
multilateral trading and settlement systems;
c) Clearing and counterparty chamber gestural entities
central.
3-[...]:
a) [...];
b) Managing entities of settlement systems;
c) Clearing and counterparty chamber gestural entities
central.
4-[...].
5-[...].
6-[...].
Article 269.
[...]
1-[...].
2-The rules referred to in the preceding paragraph shall be subject to registration in the
CMVM, which aims at verification of its sufficiency, suitability and
legality.
103
3-After registration at the CMVM, the managing entity of the settlement system
publishes the adopted rules, which they enter into force on the date of
publication or nother in them provided for.
Article 271.
[...]
1-The settlement systems for financial instruments, with the exception
of those that are managed by the Bank of Portugal, are recognized through
of registration in the CMVM.
2-[...].
3-[...].
Article 274.
[...]
1-The transfer orders are introduced in the system by the
participants or, by delegation of these, by the managing entity of the market
where the financial instruments were traded or by
entity that takes over the functions of clearing house and
central counterparty regarding the operations carried out in that market.
2-[...].
3-[...].
Article 276.
[...]
The compensation carried out within the framework of the settlement system has character
definitive and is carried out by the system itself or by the entity it takes
participating clearing house functions of this.
104
Article 278.
[...]
The settlement of regulated market operations should be arranged
according to principles of efficiency, of reduction of systemic risk and of
concurrency of credits in financial instruments and cash.
Article 279.
[...]
1-[...].
2-A The obligation to which the preceding paragraph is concerned is incumbent upon the participant
that introduced into the system the transfer order or that it has been
indicated by the managing entity of the market where the
operations to be liquidated or by the entity assuming the functions of chamber
of compensation and central counterparty regarding such operations.
3-[...].
4-[...].
Article 281.
[...]
1-[...]:
a) [...];
b) Entities taking over the functions of clearing house and
central counterparty;
c) Managing entities of centralized systems of values
securities;
d) The Bank of Portugal or credit institutions, if the entity
system manager is not authorized to receive deposits at
money;
e) Other settlement systems.
2-Connection agreements are recorded in the CMVM.
105
Article 283.
[...]
1-A submission to insolvency or the request for a statement of this, from
company recovery or sanitation of any participant not
has retroactive effect on the rights and obligations arising from its
participation in the system or associated it.
2-[...].
3-[...].
Article 284.
[...]
1-Without prejudice to the provisions of Decree-Law No 105/2004 of May 8, the
guarantees of obligations arising from the operation of a system of
settlement are not affected by the opening of insolvency proceedings, of
company recovery or sanitation of the entity guarantees,
reverting only to the bankrupt mass or to the company in recovery
or sanitation the balance that eventually apure after fulfillment
of the guaranteed obligations.
2-[...].
3-[...].
4-If the financial instruments under warranty pursuant to the
this article are registered or deposited in a system
centralised situated or operating in a member state of the Community
European, the determination of the rights of the beneficiaries of the guarantee shall govern-
if by the legislation of that member state, provided that the warranty has been
registered in the same centralized system.
Article 289.
[...]
1-[...]:
a) The services and investment activities in instruments
106
financial;
b) The ancillary services of services and investment activities;
c) [...].
2-[...].
3-The provisions of the preceding paragraph shall not apply:
a) To the members of the European System of Central Banks, in the
exercise of its functions, and the State and other public entities
within the scope of the management of public debt and reserves of the State;
b) To people who provide investment services exclusively to the
its dominant society, the subsidiary of this, or its own subsidiary;
c) To people who provide investment advice as
normal and not specifically remunerated complement of
profession of an end diverge from the provision of investment services;
d) To persons who have by only investment activity to
trading on their own as long as they are not creators of
market or entities that negotiate on their own, outside of a
regulated market or a trading system
multilateral, in an organized, frequent and systematic way,
providing an accessible system to third parties with the end of with them
negotiate;
e) To persons who provide, exclusively or in cumulation with the
activity described in the paragraph b) , relative investment services
to the management of systems for the participation of workers;
f) To people who provide investment services, or exercise
investment activities, which consisted, exclusively, in the
trading on its own in the forward markets or the counted,
in this case with the sole purpose of covering positions in the markets
of derivatives, or in the negotiation or participation in the formation of
prices on the account of other members of the said markets, and that
are guaranteed by an compensating member who on the same
act, when the responsibility for the implementation of the contracts
celebrated is taken over by one of those members;
g) To persons whose main activity consists in trading for
own account in goods, in derivative instruments on
107
goods, or in both, provided that they do not act in the framework of
a group whose main activity consisted in the provision of others
investment services or banking nature;
h) To people who negotiate financial instruments on account
own or to provide investment services on instruments
derivatives on goods or contracts of derivatives referred to
in the subparagraphs ii) and iii) of the paragraph d) and in the letter e) of the Article 1 (1)
2. , provided that such activities are exercised in an ancillary manner
in the context of a group whose main activity does not consist of the
provision of investment services or banking in nature;
i) To persons who exercise, by main title, some of the services
listed in the paragraphs c ), d) and g) of Article 291, as long as it does not
act within the framework of a group whose main activity consists
in the provision of investment services or banking in nature.
4-The provisions of Articles 294 to 294.-D, 306 to 306.--E, 308 to 308-
D, 309.-D, 313, 314 to 314.-D, 317 to 317.-D is not applicable to the
management activity of collective investment institutions.
Article 290.
Investment services and activities
They are services and investment activities in financial instruments:
a) [...];
b) [...];
c) [...];
d) The firm outlet and placement with or without warranty on offer
public distribution;
e) The negotiation on its own;
f) The consulting for investment;
g) The management of multilateral trading system.
108
Article 291.
[...]
They are ancillary services of the services and investment activities:
a) The registration and deposit of financial instruments, as well as the
services related to your guard, such as the management of
treasury or guarantees;
b) [...];
c) The elaboration of investment studies and financial analysis or
other forms of general consultancy related to operations in
financial instruments;
d) [...)
e) [...)
f) [...)
g) The services and activities set out in Article 290, when they relate to
the assets underlying the financial instruments mentioned in the subparagraphs
ii) and iii) of the paragraph d) and in the letter e) of Article 2 (1).
Article 292.
Advertising and prospecting
The publicity and prospecting directed at the conclusion of contracts of
financial intermediation or the collection of elements on current customers or
potential can only be carried out:
a) By financial intermediary authorized to carry out the activity in
cause;
b) By linked agent, in the terms provided for in Articles 294-to-
294 .no-D.
Article 293.
[...]
1-Are financial intermediaries in financial instruments:
a) [...];
109
b) [...];
c) [...].
2-Are investment firms in financial instruments:
a) [...];
b) [...];
c) [...];
d) The mediating societies of the money and foreign exchange markets;
e) The consulting companies for investment;
f) The managing societies of multilateral trading systems;
g) Others that as such are qualified by law, or that, not being
credit institutions, whether they are persons whose activity, habitual and
professionally exercised, constrained in the provision, to third parties, of
investment services, or in the exercise of activities of
investment.
Article 294.
Consulting for investment
1-Understand by consulting for investment the provision of a
advice to a client, in their capacity as an actual investor or
potential, either at the request of this or on the initiative of the consultant
relating to transactions relating to securities or the
other financial instruments.
2-A consulting for investment can be exercised:
a) By financial intermediary authorized to engage in such activity, relatively
to any financial instruments;
b) By advisors for investment, concerning securities.
3-Consultants for investment may still be allowed to pay
the service of reception and transmission of orders in securities
provided that:
a) The transmission of orders is addressed to financial intermediaries
referred to in Article 293 (1);
b) Do not detain funds or securities belonging to
customers.
110
4-The consultants for investment apply the general rules provided for
for financial intermediation activities, with due
adaptations.
Article 295.
[...]
1-[...].
2-The registration of financial intermediaries whose activity consists
exclusively in the management of multilateral trading systems is governed by
by the provisions of the Decree-Law n. __, of ____ [ LEG ).
3-[ Previous Article No 2 ].
Article 297.
[...]
1-[...]:
a) Each of the intermediation activities in instruments
financial that the financial intermediary intends to exercise;
b) The identification of the representatives of the financial intermediary and
of the people who actually drive or scrutinize each
of the registered activities.
2-[...].
3-Without prejudice to the provisions of paragraph 1, the CMVM organizes and disseminates a
list containing the identiactive elements of the brokers
financial registered in the terms of Articles 66 and 67 of the Regime
General of Credit Institutions and Financial Societies.
Article 298.
Process of registration
1-The initial registration and averages to the registration of changes to the
elements referred to in paragraph 1 (1) of the preceding article depend on
111
application, which must be accompanied by the necessary documents
to demonstrate that the financial intermediary possesses the means
humans, materials and technicians indispensable for the exercise of the
activity or other elements documenting the change in
cause.
2-A CMVM, through inspection, may check the existence of the means to
that refers to the previous number.
3-[...].
4-[...].
5-[...].
Article 299.
Undue tacit
The registration is deemed to be refused if the CMVM does not carry it out within 60
days to count:
a) [...];
b) [...].
Article 301.
Consultants for investment
1-The exercise of the activity of consultants for investment depends on
register at the CMVM.
2-Registration is only granted to elderly natural persons who demonetisation
possess professional aptitude appropriate to the exercise of the activity and means
sufficient materials or legal persons who demonstrate to respect
equivalent requirements.
Article 303.
[...]
1-[...].
2-A cancellation decision that is not substantiated in the revocation or
112
expiry of the permit must be preceded by assent of the
Bank of Portugal, to be issued within 15 days, save with respect to the
consulting companies for investment.
3-A The cancellation decision must be communicated to the Bank of Portugal and
to the competent authorities of the member states of the European Union
where the financial intermediary has branches or pay services.
Article 304.
Principles
1-[...].
2-[...].
3-To the extent necessary for the fulfillment of your duties in the
provision of the service, the financial intermediary shall inform itself together
of the client about his / her knowledge and experience with regard to the
specific type of product or service offered or searched, well
how, if applicable, on the financial situation and the objectives of
investment of the customer.
4-[...].
5-These principles and the duties referred to in the following articles are
applicable to holders of the intermediary's board of directors
financial or the linked agent, to the persons who actually drive
or scrutinize each of the intermediation activities and the
collaborators of the financial intermediary, the linked agent or the
subcontracted entities.
Article 305.
General requirements
1-The financial intermediary shall maintain his / her business organization
equipped with the human, material and technical means necessary for
provide their services under appropriate quality conditions,
professionalisms and efficiency and for the avoidance of procedures
wrong or negligent, owing, in particular:
113
a) Adopt an organisational structure and decision-making procedures that
specialize communication channels and assign functions and
responsibilities;
b) Ensure that the persons referred to in Article 304 (5) are
to the current of the procedures to be followed for the correct execution
of your responsibilities;
c) Ensuring compliance with the procedures adopted and the
measures taken;
d) Adopt effective means of reporting and reporting the information
internal;
e) Maintains records of its activities and internal organisation;
f) Ensure that the realization of diverse functions by persons
referred to in Article 304 (5) does not prevent them from performing
any specific function in an efficient, honest manner and
professional;
g) Adopt appropriate systems and procedures to safeguard the
security, the integrity and confidentiality of information;
h) Adopt a policy of continuity of its activities,
intended to ensure, in the case of an interruption of its systems
and procedures, the preservation of essential data and functions and the
pursuit of its financial intermediation activities or,
if this is not possible, the quick recovery of these data and functions
and the rapid reassing of such activities;
i) Adopt an accounting organization that allows you, the whole
moment and in an immediate way, carry out the timely submission
of financial reports that reflect a true picture and
appropriate of your financial situation and to respect all the
applicable standards and accounting rules, specifically in
matter of heritage segregation.
2-For the purposes of the provisions of the provisions of a) a f) of the previous number, the
financial intermediary must take into account the nature, the size and the
complexity of its activities, as well as the type of activities of
financial intermediation premised.
3-3-The financial intermediary must follow up and evaluate regularly
114
the suitability and effectiveness of the systems and procedures, established
for the purposes of paragraph 1, and to take appropriate measures to correct
possible deficiencies.
Article 306.
General principles
1-[...].
2-[...].
3-[...].
4-Investment companies may not use in their interest or in the
third-party interest the money received from customers.
5-For the purposes of the previous figures, the financial intermediary shall:
a) Keep records and accounts that are necessary to you
allow, at any time and in an immediate way, to distinguish the
goods belonging to the heritage of a customer of those belonging to the
heritage of any other customer, as well as of the goods
belonging to their own heritage;
b) Keep records and accounts organized so as to ensure your
accuracy and, in particular, its correspondence with the
financial instruments and the money of customers;
c) Carry out, with the required frequency and, at a minimum, with a
monthly periodicity, reconciliations between the records of your
internal accounts and those of any third parties on behalf of which
hold these goods;
d) Take the necessary steps to ensure that any
financial instruments of customers, deposited or registered
together with a third party, be identifiable separately from the
financial instruments belonging to the financial intermediary,
through accounts with a distinguished holder in the accounting of the
third or through other equivalent measures that guarantee the
same level of protection;
e) Take the necessary steps to ensure that the money of the
clients be held in an account or in identified accounts
115
separately in face of any accounts used to detain
money from the financial intermediary; and
f) Adopt organisational arrangements to minimise the risk of loss
or decrease in value of customers ' assets or rights
relating to those assets, as a consequence of abusive use
of assets, of fraud, of mismanagement, of maintenance of records
inadequate or neglect.
6-Case, due to the applicable law, including in particular the legislation
on property or insolvency, the measures taken by the
financial intermediary in fulfilment of the provisions of paragraph 1, no
are sufficient to meet the requirements set out in paragraphs 1 and 2,
the CMVM determines the measures that are to be adopted, in order to
respect these obligations.
7-In case the applicable law in the country in which the customers ' goods are held
prevent the financial intermediary from respecting the provisions of the ( d)
or e) of paragraph 5, the CMVM sets out the requirements with an effect
equivalent in terms of safeguarding the rights of customers.
8-Whenever, under the terms of the paragraph c) of paragraph 5, are found to be disagreements,
these should be regularised as soon as possible.
9-If the divergences referred to in the preceding paragraph persist by a term
greater than one month, the financial intermediary must inform the CMVM
of the occurrence.
10-The financial intermediary communicates to the CMVM, immediately,
any facts likely to affect the security of the goods
belonging to the heritage of customers or to generate risk for the rest
financial intermediaries or for the market.
Article 307.
[...]
1-A accounting of the financial intermediary shall reflect on a daily basis,
in relation to each customer, the balance creditor or debtor in cash and in
financial instruments.
2-[...].
116
3-The orders and decisions to negotiate are recorded in the terms set out in the
article 7 of the Commission Regulation (EC) No 1287/2006 of 10 of
August.
4-The elements that must be registered by the financial intermediary
upon receipt of an order, its transmission or reception of the
implementation confirmation are contained in Article 8 of the Regulation (EC) No
1287/2006 of the Commission of August 10.
Article 308.
Scope of the scheme
1-A subcontracting with third parties of intermediation activities
financial or intended for the execution of operational functions, which are
essential to the provision of services in a continuous manner and in conditions
of quality and efficiency, presupposes adoption, by the intermediary
financial, of the measures necessary to avoid operational risks
additional arising from the same and can only be accomplished if not
damage the internal control to be carried out by the financial intermediary
nor the ability of the competent authority to control the
compliance with this of the duties imposed on them by law or
by regulation emanating from public authority.
2-An operational function is considered essential to the provision of services
of investment and the execution of form investment activities
continuous and in conditions of quality and efficiency, if a failure in your
exercise significantly damage compliance, on the part of the
subcontractor financial intermediary, of the duties to which it is found
subject, their financial results, or the continuity of their
services and investment activities.
3-Excludes, specifically, from the previous number:
a) The provision to the financial intermediary of consultancy services
or of other services that are not part of the activities of
financial intermediation, specifically the services of
legal advice, the training of collaborators, invoicing,
of advertising and security;
117
b) The acquisition of standardized services, namely services of
information on markets and the provision of information
on effective prices.
Article 309.
General principles
1-The financial intermediary must organise itself by way of identifying
possible conflicts of interest and act so as to avoid or reduce
to the minimum the risk of their occurrence.
2-[...].
3-The financial intermediary shall give prevalence to the interests of the
client, both in relation to their own interests or companies
with which it is found in domain or group relation, as in
relation to the interests of the holders of their social organs or those of
linked agent and collaborators of both.
4-Whenever the financial intermediary carries out operations to satisfy
orders of customers must put at the disposal of these the instruments
financial for the same price why it acquired them.
Article 310.
[...]
1-The financial intermediary shall refrain from inciting its customers to
carry out repeated operations on financial instruments or the
carry out on account of them, when such operations have an end
principal the collection of commissions or other objective strange to the
interests of the client.
2-[...].
3-[...].
118
Article 311.
[...]
1-[...].
2-[...]:
a) [...];
b) The apparent, simulated or artificial transfer of instruments
financial among different portfolios;
c) The execution of orders aimed at defrauding or limiting
significantly the effects of auction, prorogation or other form of
allocation of financial instruments;
d) [...].
3-[...].
Article 312.
Duties of information
1-The financial intermediary shall provide, with respect to the services that
offer, to be asked for or to actually pay, all the
information required for an enlightened decision making and
substantiated, including in particular those relating to:
a) To the financial intermediary and the services per se provided;
b) To the nature of unqualified investor, qualified investor or
eligible counterparty of the customer and his eventual right to apply
a different treatment and any limitation at the level of the grade of
protection that this implies;
c) To the origin and nature of any interest that the intermediary
financial or the people who in the name of it act have in the
service to be provided;
d) To financial instruments and investment strategies
proposals;
e) To the special risks involved in the operations to be carried out;
f) To its policy of execution of orders and, if it is the case, to the
possibility of execution of orders from off-market customers
119
regulated or multilateral trading system;
g) To the existence or non-existence of any guarantee fund or
equivalent protection covering the services to be provided;
h) At the cost of the service to be provided.
2-[...].
3-[...].
4-A information provided for in paragraph 1 shall be provided in writing as yet
in standardized form.
5-Where, in this Subsection, it is established that the information shall
be provided in writing, the information must be provided on paper saved
if:
a) The provision of the information in another support is appropriate in the
context of the relationship, current or future, between the intermediary
financial and the investor; and
b) The investor has expressly chosen the provision of the
information in support other than paper.
6-Presume that the provision of information through communication
electronic is suitable for the context of the relationship between the intermediary
financial and the investor when the latter has indicated an address of
electronic mail for the realization of contacts within that.
7-A information provided for in Articles 312-C to 312. g-G can be provided
through a site of the Internet, if the investor has expressly
consented and provided that:
a) Your provision in this support is appropriate in the context of the
relation, current or future, between the financial intermediary and the
investor;
b) The investor has been notified, by electronic means, of the address
of the site of Internet and of the place in the same of access to information;
c) Be continuously accessible, for a reasonable period for which
the investor can consult it.
120
Article 313.
General prohibition and duty of disclosure
1-The financial intermediary shall not, in respect of the provision of a
financial intermediation activity to the customer, offer to the customer or
to third parties or from them to receive any remuneration, commission or
non-pecuniary benefit, except if:
a) The existence, the nature and the amount of remuneration, commission or
benefit, or, if the amount cannot be ascertained, your
method of calculation, are disclosed to the customer in full mode,
true and clear, prior to the provision of the activity of
financial intermediation in question;
b) The payment of the remuneration or commission or the granting of the
non-pecuniary benefit to enhance the quality of the activity
provided to the customer and do not harm the respect of the duty of
acting in the sense of the protection of the legitimate interests of the customer;
c) The payment of appropriate remuneration, such as costs of
custody, compensation and exchange commissions, mandatory fees or
expenses of litigation, enable or be necessary for the
provision of financial intermediation activity.
2-The financial intermediary may, for the purposes of the paragraph a) of the number
previous, disseminate information on commissions in summary terms,
such not by obstinate to the duty to disclose the additional information that is
requested by the client.
Article 314.
General principle
1-The financial intermediary must ask the customer for relative information
to their knowledge and experience in investment in the
that respects the type of furniture value or the service considered.
2-If, on the basis of the information received under the previous number, the
financial intermediary judge that the operation considered not to the
client should advertiser it, in writing, for that fact.
121
3-In the case of the customer refusing to provide the information referred to in paragraph 1
or fail to provide sufficient information, the financial intermediary shall
advertisement it, in writing, for the fact that such a decision does not allow it
determine the suitability of the operation considered to be in their circumstances.
4-The caveats referred to in paragraphs 2 and 3 may be made in a way
standardized.
Article 315.
Information to CMVM
1-Financial intermediaries with registered office in national territory and the
financial intermediaries with registered office in other member states of the
European Union established in Portugal through a branch,
in this case in respect of operations carried out from this,
communicate to the CMVM the operations carried out that they have as the object
financial instruments admitted to trading in a market
regulated situated or functioning in a member state of the Union
European.
2-A communication referred to in the preceding paragraph shall be made in the
terms of the provisions of Articles 12 and 13 of the Regulation (EC) No
1287/2006, of the Commission, of August 10 and in regulation of the CMVM.
3-The financial intermediary can fulfill the duty of communication
provided for in paragraph 1 through third party acting on its behalf or through
a system of notifications of operations approved by the CMVM.
4-A CMVM may, by regulation, determine that the information provided for
in the previous figures is communicated to the CMVM by the managing entity
of the regulated market or the multilateral trading system
through which the operation has been completed.
5-In the case referred to in the preceding paragraph, the financial intermediary is
dispensed from the duty of communication provided for in paragraph 1.
6-When the CMVM receives from a branch the information provided for in the
this article, transmits them to the competent authority of the Member State
of the European Union that has authorized the investment company to
that the branch belongs, save if this declarates not to wish to receive them.
122
7-A information received pursuant to this article is transmitted by the
CMVM to the competent authority of the most liquid market for the
financial instruments the subject of the operation communicated, as
defined in Article 9 of Regulation (EC) No 1287/2006 of the Commission,
of August 10.
8-A CMVM shall draw up the necessary regulations for the realization of the
provisions of this Article.
Article 316.
Information on operations carried out outside regulated market or
of multilateral trading system
The provisions of Article 222 (3 a) to (222) apply to intermediaries
financial in respect of operations that they perform, on their own or
on behalf of clients, out of regulated market or system of
multilateral trading, on shares admitted to trading in market
regulated.
Article 317.
General provisions
1-The financial intermediary shall establish, in writing, a policy
internal that allows you, at all time, to know the nature of each
client, as an unqualified or qualified investor, and adopt the
procedures necessary for the realization of it.
2-The financial intermediary may, on his own initiative, deal with:
a) Any qualified investor as an unqualified investor;
b) An eligible counterparty, thus qualified under the terms of paragraph 1 of the
article 317-D as a qualified investor or as an investor not
qualified.
123
Article 318.
[...]
1-[...]:
a) [...];
b) [ Previous paragraph (c) ];
c) [ Previous point (d) ];
d) The minimum duties on record keeping;
e) [...];
f) [...];
g) The internal policies and procedures of intermediaries
financial pertaining to investor categorization and the criteria
of assessment for the purpose of qualification;
h) Circumstances that should be considered for the purpose of application
of the duties relating to the systems for monitoring compliance, of
risk management and internal audit, taking into account the nature, the
dimension and the complexity of the activities of the intermediary
financial, as well as the type of intermediation activities
financial provided;
i) Contents of the report to be drawn up by the auditor relating to the safeguard
of the goods of customers;
j) Terms in which financial intermediaries must make available
to CMVM information on the policies and procedures adopted
for fulfillment of the duties relating to the internal organisation and the
exercise of the activity.
2-The Bank of Portugal is to be heard in the drafting of the regulations to
which refer to the points h) a j) of the previous number.
Article 319.
Intermediation activities
[...]:
a) [...];
b) The exercise of the activity of linked agent, specifically in
124
relation to the information required of the financial intermediary, the
criteria for the assessment of the suitability and suitability of the training and
of the professional experience, the content of the contract for the
exercise of the activity;
c) The concretization of the content of the description of the risks laid down in the n.
2 of Article 312.-E.
Article 320.
Consultants for investment
The CMVM prepares the regulations necessary for the delivery of the willing
in this title on the exercise of the activity of the consultants to
investment, particularly as to the following subjects:
a) Required elements for the proof of the requirements required by
register for the exercise of the activity;
b) Internal organization;
c) Periodicity and content of the information to be provided by the consultants
for investment to CMVM.
Article 321.
[...]
1-Financial intermediation contracts concluded with investors
unqualified are of written form and only these can invoke the
nullity resulting from the inobservance of form.
2-The contracts referred to in the preceding paragraph may be concluded with
basis in general clauses.
3-Financial intermediation contracts shall apply for the scheme of
general contractual clauses, being to this effect investors do not
qualified equal to consumers.
4-[ Previous Article No 3 ]
125
Article 322.
[...]
1-[...].
2-[...].
3-[...]:
a) [...];
b) [...];
c) The financial intermediary has his or her post the registration or deposit
of financial instruments belonging to the investor.
4-[...].
5-The consultant for investment cannot make contact with
unqualified investors who by these have not been requested.
Article 323.
Reporting duties in the context of the execution of orders
1-Whenever it has executed an order on account of a customer, the
financial intermediary must:
a) Inform the customer promptly and in writing about the execution of the
same;
b) In the case of an unqualified investor, send a note of
execution of the operation, confirming the execution of the order, soon
which possible and at the latest on the first working day following the
execution or, in case the confirmation is received from a third party, the
later than on the first working day following the reception, by the
financial intermediary, of this confirmation.
2-In the case of order on bonds issued in the framework of loans
mortgages granted to customers who issued the order, the
information about your execution must be transmitted in conjunction with
the extract relating to the mortgage loan, at most up to one month
after the execution of the order.
3-A The customer's request, the intermediary shall provide him with information about
of the state of the order.
126
4-In the case of orders from an unqualified investor, who focus on
units of participation or capital securities of bodies of
collective investment and run periodically, the
financial intermediary must send, at least semester, to
communication referred to in ( b) of paragraph 1 or provide the customer with
information indicated in the following number.
5-A note of implementation of the transaction referred to in para. b) of paragraph 1 includes
where relevant in accordance with Table 1 of Annex I of the
Commission Regulation (EC) No 1287/2006 of August 10:
a) The identification of the financial intermediary presenting the
information;
b) The identification of the customer;
c) The day of negotiation;
d) The hour of negotiation;
e) The type of the order;
f) The identification of the negotiation structure;
g) The identification of the financial instrument;
h) The indicator of venda/purchased;
i) The nature of the order, when it is not an order of purchase / vendaed;
j) The quantity;
l) The unit price;
m) The global pecuniary counterpart;
n) The total amount of commissions and expenses invoiced and, on request
of an unqualified investor, a breakdown by item;
o) The responsibilities of the customer regarding the settlement of the
operation, including the payment or delivery period and the
proper information on the account, in case they were not
communicated in advance;
p) In the event that the customer's counterpart is the intermediary itself
financial or any entity of the same group or other customer
of the same, the mention of that fact, save if the order has been
performed through a trading system that facilitates the
anonymous trading.
6-For the purposes of the l) from the previous number, whenever the order is
127
performed by installments, the financial intermediary can provide
information on the price of each parcel or the respective average price,
in the latter case without prejudice to the right of the customer to request information
about the price of each parcel.
7-The financial intermediary may provide the customer with the said information
in paragraph 5 in aggregated form, by harmonized codes, if
also present an explanation of the codes used.
8-Each execution note reports for a single day and is done in duplicate,
targeting the original to the ordinator and a duplicate, to the file
mandatory from the financial intermediary.
Article 325.
[...]
As soon as they receive an order for the conduct of operations on
financial instruments, financial intermediaries shall:
a) [...];
b) [...].
Article 326.
[...]
1-[...].
2-[...].
a) Do not make proof of the availability of financial instruments to
alienate;
b) Have not promoted the blocking of financial instruments to
alienate, when required by the financial intermediary;
c) [...];
d) [...].
3-[...].
4-[...].
128
Article 327.
[...]
1-Orders can be given orally or in writing.
2-Oral given orders and presentially must be reduced to written
by the receiver and subscribed by the payer.
3-The financial intermediary shall set the orders transmitted
phonetically in phonograph support, which ensures adequate levels
of intelligibility, durability and authenticity, and must inform
beforehand the customer of that register.
4-The financial intermediary can replace the written reduction of the orders
by the insertion map of the offers in the trading system, provided that
you will be guaranteed the registration of the elements mentioned in Article 7 of the
Commission Regulation (EC) No 1287/2006 of August 10.
Article 328.
Treatment of customer orders
1-[...].
2-[...].
3-The intermediaries shall ensure the possibility of reconstitution of the
internal circuit that the orders have followed up to their transmission or
execution.
4-In the execution of orders, the financial intermediary shall:
a) Record the orders and proceed to their execution in sequential mode and
with celerity, unless the characteristics of the order or the
prevalent conditions in the market to make it impossible or if such
not allow to safeguard the interests of the customer;
b) To inform previously unqualified investors about
any special difficulty in the proper execution of its
orders.
5-Unless express instruction as opposed to the ordinator, orders with a
specified or more favorable limit price and for a volume
determined, relating to shares admitted to trading on market
129
regulated, which are not immediately enforceable, must be
disclosed pursuant to the terms provided for in Article 30 of Regulation (EC) No
1287/2006 of the Commission of August 10.
6-A CMVM can dispense with the fulfillment of the duty of disclosure
provided for in the preceding paragraph in the case of orders whose volume is high
relatively to the normal market volume as defined in the article
20. of the Commission Regulation (EC) No 1287/2006 of 10 of
August.
Article 329.
[...]
1-[...]
2-A modification of an order to perform on regulated market
or multilateral trading system constitutes a new order.
Article 330.
Execution in the best conditions
1-[...].
2-In the absence of referrals from the payer, the financial intermediary shall
carry out orders in the best conditions, specifically in terms of
of price, costs, speed, probability of execution and settlement,
volume, nature or any other relevant consideration.
3-[...].
4-A execution of orders from customers outside regulated market or from
multilateral trading system depends on express consent and
in writing of the ordinator, which can be given in the form of an agreement
general or in relation to each transaction.
5-The financial intermediary shall establish a policy of execution of
orders that:
a) Allow to get, for the orders of customers, the best conditions
referred to in paragraph 2 and include, at a minimum, the trading structures
that allow to obtain, in a repeated manner, that result;
130
b) In relation to each type of financial instrument, please include
information about the different trading structures and the
determinant factors of your choice.
6-A The provision of customer services presupposes that this has given its
assentiment to the policy of execution of orders, or to any change to
this, in the terms that have been previously transmitted to you.
7-The financial intermediary demonstrates, at the request of the client, that its
orders have been executed in accordance with the enforcement policy that
has been transmitted.
Article 331.
Criteria of execution in the best conditions
1-For the purpose of determining the relative importance of factors
set out in paragraph 2 of the previous article, the financial intermediary must
consider the characteristics:
a) From the customer, including its unqualified investor nature
or of qualified investor;
b) Of the client's order;
c) Of the financial instruments subject to the order;
d) Of the trading structures for which the order can be
directed.
2-Understand by negotiation structure a regulated market, a
multilateral trading system, a systematic internalizer or
a market creator or other provider of liquidity or an entity
which performs in a country third similar functions as
performed by any of the entities referred to.
3-Whenever a financial intermediary executes an order per account
of an unqualified investor, the best conditions are
determined in terms of the global pecuniary counterpart, represented
for the price of the financial instrument and for the costs for its
execution, including all expenses incurred by the customer and
directly related to the execution of the order, such as commissions
of the negotiation structure, the settlement or the
131
compensation and any other commissions paid to third parties involved
in the execution of the order.
4-In cases where the order can be executed in more than one
space or a negotiation organization, the intermediary, to evaluate
the best conditions, must consider the commissions per se charged to the
client by the execution of the orders in each trading structure.
5-The financial intermediary may not structure or change its
commissions so as to introduce unwarranted discrimination between
negotiation structures.
6-The financial intermediary shall annually evaluate the policy of
execution of orders, specifically in relation to the structures of
expected negotiation, by way of identifying and, if necessary, correct
possible deficiencies.
7-This analysis should also be carried out whenever a
relevant change, likely to affect the ability of the intermediary
financial to continue to get the best possible results in what
concerns the execution of the orders of its customers, on a basis
coherent, using the spaces or the trading organisations
included in your enforcement policy.
Article 332.
Information to unqualified investors on the policy of implementation
1-Regarding its policy of execution of orders, the intermediary
financial must present to customers, who are investors not
qualified, sufficient in advance in relation to the provision of the
service:
a) A description of the relative importance that the intermediary
financial ascribe, in accordance with the criteria specified in paragraph 1
of the previous article, to the factors cited in Article 330 (2) or
to the process on the basis of which the financial intermediary determines
the relative importance of such factors;
b) A list of the spaces or of the trading organisations in which the
financial intermediary deposits greater confidence to respect the
132
your duty to take all reasonable steps to obtain, in a
regular basis, the best possible results regarding the
execution of the orders of the customers;
c) A well-visible warning that any specific instructions from
a customer can prevent the financial intermediary from taking the
measures adopted in the framework of its policy for the implementation of
orders, to obtain the best possible results regarding the
execution of these orders, with regard to the elements
covered by these instructions.
2-To the provision of the information provided for in the preceding paragraph shall apply to
provisions of Article 312 (7)
Article 333.
Application to the management of portfolios and reception and transmission of orders
1-The financial intermediary who, in the provision of the management services of
portfolios or reception and transmission of orders, transmits to others
financial intermediaries orders that result from a decision of
negotiate in financial instruments on account of a customer or
orders from customers, respectively, must take the measures
necessary to obtain the best conditions of execution,
considering the factors and criteria referred to in Article 330 para.
2-The duty provided for in the preceding paragraph shall not apply when the
financial intermediary, in the transmission of the order, follow the instructions
specific given by the customer.
3-To ensure compliance with the duty provided for in paragraph 1, the intermediary
financial must:
a) Establish a policy that identifies, in relation to each type of
financial instruments, the financial intermediaries to whom the
orders are transmitted, which they must have a policy of
execution of orders;
b) Providing your customers with information on established policy
under the terms of the preceding paragraph;
c) Assess the effectiveness of the policy set out in the terms of the paragraph a) and,
133
in particular, the quality of the execution of orders carried out by the
financial intermediaries in that identified, altering that
policy if any deficiency has been verified that endanger the
compliance with the duty provided for in the preceding paragraph.
4-A assessment referred to in paragraph c) from the previous number is done regularly
and, at a minimum, on an annual basis and whenever any change occurs
which affects the ability of the financial intermediary to obtain the
better conditions in the execution of the orders of customers or given by
your account.
5-The financial intermediary shall adopt procedures that ensure
a quick and correct treatment and the immediate allocation of the orders of
customers in relation to the orders of other customers and the operations
carried out on its own by the financial intermediary.
Article 334.
Liability to the payers
1-Financial intermediaries respond to their payers:
a) By the delivery of the acquired financial instruments and the
payment of the price of the divested financial instruments;
b) For the authenticity, validity and regularity of the instruments
acquired financial;
c) For the non-existence of any vices or legal situations that
onset the acquired financial instruments.
2-It is void of any contractual clause contrary to the provisions of the number
previous, when the order should be executed in market
regulated or multilateral trading system.
Article 335.
Scope
1-By the contract of management of an individualized portfolio of instruments
financial, the financial intermediary obliges:
a) To carry out all acts aimed at the valorisation of the portfolio;
134
b) To exercise the rights inherent in the financial instruments that
integrate the wallet.
2-The provisions of this Title shall apply to the management of instruments
financial, yet the portfolio integrates goods from another nature.
Article 336.
Binding orders
1-Even if this is not foreseen in the contract, the customer can give orders
binding on the manager as to the operations to be carried out.
2-The provisions of the preceding paragraph shall not apply to contracts that guarantee
a minimum profitability of the portfolio.
Article 337.
[...]
1-[...].
2-[...]:
a) [...];
b) Preparation and submission of the application for prospectus approval or
of prior registration in the CMVM;
c) [...].
3-[...].
Article 343.
[...]
The contract shall determine the scheme relating to the exercise of rights
inherent in the financial instruments registered or deposited.
Article 347.
[...]
1-[...]:
135
a) Acquire for yourself any financial instruments when
there are customers who have requested them at the same price or at the price
higher;
b) Divest financial instruments of which it is holder rather than
financial instruments whose divestments have been ordered to
by your customers at the same or lower price .
2-[...].
Articles 348 para.
[...]
1-Market fomenting operations aim to create conditions for
regular marketing in a market of a given category
of securities or financial instruments, namely the
increment of liquidity.
2-[...].
3-[...].
4-[...].
Article 351.
[...]
1-Relatively to market-boosting operations, CMVM defines,
by means of regulation, the information that should be provided to you, well
like the one that is to be disclosed to the market by the entities
referred to in Article 348 (2).
2-[ Previous Article No 4 ].
Article 352.
[...]
1-[...]:
a) Establish policies regarding the market of instruments
financial and, in general, to the matters regulated in this Code and in
136
supplementary legislation;
b) [...];
c) Coordinate supervision and regulation relating to instruments
financial, when the competence belongs to more than one
public entity.
2-When in the financial instruments market check out
disturbance that puts at grave risk the national economy, may the
Government, by joint porter of the Prime Minister and the Minister of the
Finance, order the appropriate measures, namely suspension
temporary regulated markets or trading systems
multilateral, of certain categories of operations or of the activity of
managing entities of regulated markets, of systems of
multilateral trading, from managing entities of settlement systems,
of entities managing chambers of clearing or countering
central and of entities managing centralised systems of values
securities.
Article 353.
[...]
1-[...]:
a) The supervision of organised forms of negotiation of
financial instruments, of public offerings relating to values
securities, clearing and settlement of operations to those
relating, of the centralized securities systems and
of the entities referred to in Article 359;
b) The regulation of the financial instruments market, of offers
public relating to securities, of the activities carried out
by the entities subject to their supervision and other matters
provided for in this Code and in supplementary legislation;
c) The supervision and regulation of the conduct duties of the entities
that they are proposing to celebrate or mediate connected insurance contracts
to investment funds or to commercialize adhesion contracts
individual to open pension funds.
137
2-[...].
3-Regarding the contracts set out in paragraph c) of paragraph 1, the CMVM
must:
a) Adopt the necessary regulations on provision of
information, consulting, advertising, prospecting, marketing
and mediation, including on the processing and conservation of
records of these, heard the Insurance Institute of Portugal;
b) Establish with the Insurance Institute of Portugal rules
intended to articulate supervisory procedures and to ensure the
compatibilization of rules applicable to entities subject to
supervision of both authorities.
Article 355.
[...]
1-[...]:
a) [...];
b) Managing entities of regulated markets and systems of
multilateral trading
c) Managing entities of settlement systems, of the chamber of
compensation, central counterparty and centralized systems of
securities;
d) [...];
e) [...];
f) [...].
2-A CMVM may also exchange information, albeit subject to
secret, with the European Central Bank, with the authorities of
supervision of the member states of the European Union or with the entities
that there will exert functions equivalent to those referred to in the preceding paragraph.
3-A CMVM may yet exchange information with the authorities of
supervision of states that are not members of the European Community
and with the entities which carry out functions equivalent to those referred to in
n. 1, if, and to the extent that, it is necessary for the supervision of the
markets for financial instruments and for supervision, on the basis of
138
individual or consolidated, of financial intermediaries.
Article 356.
[...]
1-[...]:
a) [...];
b) For supervision, on an individual or consolidated basis, of the activity
of financial intermediaries and for supervision of the markets of
financial instruments;
c) [...];
d) [...];
e) [...];
f) In the context of the conflict mediation procedure provided for in the
articles 33 and 34.
2-[...].
3-The entities that pursuant to the preceding paragraph receive information
of the CMVM become subject to duty of secrecy with the content provided for in the
article 354 para.
4-[ Previous n. 3].
Article 358.
[...]
[...]:
a) [...];
b) Efficiency and regularity of operation of the markets of
financial instruments;
c) [...];
d) [...];
e) [...];
f) [...].
139
Article 359.
[...]
1-Within the scope of activities relating to financial instruments, they are
subject to the supervision of the CMVM, without prejudice to the competence conferred
to other authorities, the following entities:
a) Managing entities of regulated markets, of systems of
multilateral trading, of settlement systems, of the chamber of
compensation or central counterparty and centralized systems of
securities;
b) Financial intermediaries and consultants for investment;
c) [...];
d) [...];
e) [...];
f) [...];
g) Credit securitisation companies;
h) Companies of venture capital;
i) Entities that are biding to celebrate or mediate contracts of
insurance linked to investment funds or to commercialize
individual membership contracts to open pension funds, in the
scope of these activities;
j) [ Previous point (g) ].
2-The persons or entities that carry out activities of character
transnational become subject to the supervision of the CMVM whenever those
activities have some relevant connection with markets
regulated, multilateral trading systems, operations or
financial instruments subject to Portuguese law.
3-[...].
Article 360.
[...]
1-[...]:
a) Follow up the activity of the entities subject to their supervision and
140
the operation of the markets for financial instruments, of the
systems for settlement of financial instruments and systems
centralized of securities;
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) [...];
i) [...].
2-[...].
3-[...].
Article 361.
[...]
1-[...].
2-[...]:
a) [...];
b) [...];
c) [...];
d) Require the collaboration of other persons or entities, including
police officials, when this proves necessary or
convenient to the exercise of its functions, specifically in
case of resistance to such exercise or in the reason of specialty
technique of the subjects in question;
e) To replace the managing entities of regulated markets, of
multilateral trading systems, of settlement systems, of
clearing house, central counterparty and systems
centralized securities when these do not adopt the
measures necessary for regularization of anomalous situations that
Jeopardize the regular operation of the market, of the
activity exerted or the interests of the investors.
141
f) [...];
g) [...].
3-In the situations provided for in paragraph 1 and in points a ), b) and c) of paragraph 2, the
natural or legal persons concerned shall be subject to the duty of not
disclose to customers or to third parties the content or occurrence of the act practiced.
4-[...].
Article 363.
[...]
1-[...]:
a) The managing entities of regulated markets, of systems of
multilateral trading, of settlement systems, of the chamber of
compensation, central counterparty and centralized systems of
securities.
b) [...];
c) [...].
2-[...]:
a) [...];
b) [...];
c) Control of the suitability of holders of the managerial bodies, of the
people who actually drive the activity and the holders of
qualified stakes, according to the criteria defined in the
article 30 of the General Regime of Credit Institutions and the
Financial Societies, with due adaptations.
3-[...].
Article 364.
[...]
1-[...]:
a) [...];
b) Conducts inquiries for enquiries of offences of any
142
nature committed in the framework of the instrument market
financial or that affect their normal functioning;
c) [...].
2-[...].
Article 366.
Supervision relating to advertising and general contractual clauses
1-Compete to CMVM scrutinize the application of advertising legislation
and general contractual clauses in respect of the matters regulated in this
code, instructing the counterordinance processes and applying the
respective sanctions.
2-[...].
3-[...].
4-[...].
Article 369.
[...]
1-[...].
2-[...].
3-[...].
4-The regulations of the CMVM that include subjects relating to a
certain regulated market or financial instruments
in it traded are also disclosed in the newsletter of that market.
5-[...].
Article 372.
[...]
1-In the limits of the law and regulations, the managing entities of the
regulated markets, of multilateral trading systems, of the
settlement systems, central counterparty or clearing and the
centralized securities systems can regulate
143
autonomously the activities per se managed.
2-The rules set out in the terms of the preceding paragraph that are not
subject to registration, as well as those that appear in codes
deontology approved by managing entities and by associations
professionals of financial intermediaries, must be communicated to the
CMVM.
Article 376.
[...]
1-In the exercise of its tasks the CMVM cooperates with the institutions
counterparts or equips from other states.
2-[...]:
a) Collection of elements relating to infringements against the market of
financial instruments and of others whose research falls into the
scope of the tasks of the CMVM;
b) [...];
c) [...];
d) [...].
3-[...].
4-[...].
5-[...].
Article 377.
[...]
1-Without prejudice to the application of the provisions of the previous article, the CMVM
cooperates still with the congenic institutions of the member states of the
European Union and provide them with assistance for the effect of the exercise of
respective supervisory and research functions.
2-[...].
3-[...].
4-[...].
5-A request from the congenere institution provided for in paragraph 1 and in the framework of
144
functions provided therein, the CMVM promotes on the national territory and under the
your direction the enquiries and representations necessary to establish facts
which constitute an illicit in that member state, and may authorize
representatives of the applicant institution, auditors or other experts to
follow up or carry out the representations.
6-[...].
7-[...].
8-[...].
9-[...].
10-[...].
Article 377-The
[...]
1-When the CMVM veris that the duties concerning the communication and the
disclosure of qualifying holdings, the drafting of a prospectus
of public offer or admission, to the disclosure of periodical information
and to the performance of a regulated market or a system of
multilateral negotiation have been violated gives knowledge of the aforementioned
facts to the authority of the Member State of origin of the issuer or, in the
case of infringement committed by regulated market or system of
multilateral negotiation, to the authority of the State accorded to it
authorization.
2-If the competent authority does not take the requested arrangements or
these are unsuitable and the holder of qualified participation, the
issuer, the financial intermediary responsible for the public offering, the
regulated market or the multilateral trading system persists
in the infringement of the applicable standards, the CMVM, after informing that fact
the competent authority, makes the arrangements that it understands convenient
in the aim of protecting investors and the proper functioning of the
markets.
3-For the purposes of the provisions of the preceding paragraph, the CMVM may prevent that
the regulated market or the trading system in question
continue to make available, in the Portuguese territory, mechanisms of
145
access and negotiation by members established in Portugal.
4-The arrangements made by the CMVM under paragraph 2 are
communicated to the European Commission with the brevity possible.
Article 388.
[...]
1-[...].
2-[...].
a) Financial instruments, public offers relating to values
securities, organized forms of instrument trading
financial, settlement and clearing systems, counterparty
central, financial intermediation, securitisation companies of
credits, venture capital companies, venture capital funds
or legally entitled entities to administer capital funds
of risk, insurance contracts linked to investment funds,
individual membership contracts to open pension funds and
information and publicity regime relating to any of these
subjects;
b) Managing entities of regulated markets, of systems of
multilateral trading, of settlement systems, of the chamber of
compensation, of central counterparty, of centralized systems of
securities or holding companies of social shareholdings
in these entities.
3-[...].
4-[...].
5-[...].
Article 389.
[...]
1-Constitui counterordinate very serious:
a) The communication or dissemination, by any person or entity, and
through any means, of information that is not complete,
146
true, current, clear, objective and licite;
b) The lack of sending information to the system provided for in the article
367.
2-Includes in the letter a) of the previous number the provision of information to the
its customers by any entity that carries out activities of
intermediation.
3-[...]:
a) [...];
b) Sending the supervisory entities and the managing entities of
regulated markets, of multilateral trading systems,
of settlement systems, of clearing house, of
central counterparty and centralized systems of values
information securities that is not complete, true,
current, clear objective and licite;
c) [...];
d) Publication or dissemination of information not accompanied by
report or opinion drawn up by auditor registered at the CMVM or
the omission of a statement that the information was not subject to
audit, when the law requires it;
e) [...].
4-[...].
5-[...].
Article 390.
[...]
1-Constitui counterordinate very serious omission of communication or
disclosure of qualified participation in open society.
2-[...]:
a) [ Repealed ];
b) [...];
c) [...].
3-[...]:
a) [...];
147
b) [...];
c) [...];
d) Not making available to the right holders of form voting rights
proxy for the exercise of that right;
e) Mention, in convening of general assembly, of the availability of
proxy form or the indication of how to request it;
f) [ Previous point (d) ];
g) [ Previous point (e) ];
h) [ Previous point f) ];
i) [ Previous point (g) ].
Article 392.
[...]
1-[...].
2-[...].
3-[ Revoked ].
4-[...].
5-Constituting less serious counterordinance the facts referred to in us
previous number when relative to securities issued by
closed companies or not admitted to trading on market
regulated.
Article 394.
Organized forms of negotiation
1-[...]:
a) The creation, maintenance in operation or the management of a
organised form of negotiation, suspension or closure
of their activity outside the cases and terms provided for in law or
regulation;
b) The operation of regulated market or system
multilateral trading in accordance with rules not registered in the
CMVM or not published;
148
c) The lack of provision to the public, by the managing entities of
regulated markets and multilateral trading systems,
of the information to which they are obliged;
d) The admission of members of a regulated market or of a
multilateral trading system by the respective entity
gestures, without the requirements required by law or regulation;
e) [...];
f) The admission of financial instruments to market trading
regulated with violation of legal and regulatory rules;
g) [...];
h) The lack of disclosure of the information required by issuers of
securities traded on regulated market;
i) [...].
2-[...]:
a) [...];
b) [...];
c) From provision to the managing entity of the regulated market or the
multilateral trading system, by the members of this, of the
information necessary for the good management of the market or system;
d) [...];
e) From sending to CMVM, by issuers of securities
admitted to trading on regulated market or by whom
have applied for admission to trading on market
regulated securities without the consent of the
issuer, of the information required by law;
f) From disclosure of the information consolidation document
annual;
g) [...];
h) From keeping information available to the public for time
determined, when required by law.
3-[...]:
a) From representative to relations with the market and CMVM,
by entity with values admitted to trading on market
regulated;
149
b) [...].
Article 395.
[...]
1-[...]:
a) In a given regulated market or trading system
multilateral, on financial instruments, not admitted to the
trading in that market or not selected for trading
in that system or suspended or excluded from the negotiation;
b) [...];
c) [...].
2-[...]:
a) [...];
b) The trading on regulated market of operations without the
registration or the approval of the respective general clauses, when
demanded;
c) The carrying out of operations by holders of administration bodies,
direction and supervision of financial intermediaries or
managing entities of regulated markets, of systems of
multilateral trading, of settlement systems, of the chamber of
compensation, central counterparty and centralized systems of
securities, as well as by the respective employees, if
such operations are vgranted to them;
d) The violation of the duty of communication to the CMVM of operations on
financial instruments admitted to trading on market
regulated.
Article 396.
Central counterparty and settlement systems
1-Constitui counterordinate very serious:
a) The exercise of the functions of clearing house, counterparty
central and settlement system out of the cases and terms foreseen
150
in law or regulation, in particular the exercise by entity not
authorized for the purpose;
b) The operation of clearing house, of counterparty
central or settlement system according to rules no
registered in the CMVM or not published;
c) The carrying out of operations on the financial instruments
referred to in points d) and e) of Article 2 (1) without the
central counterparty interposition;
d) The lack of timely provision of financial instruments
or of money for settlement of operations;
e) The violation of the duty to adopt the necessary measures to the defence of
market, the minimization of risks and the protection of the system of
compensation
2-Constitui counter-ordinance grave the violation by the entity that takes over the
compensation chamber functions and central counterparty of the following
duties:
a) From identifying and minimizing sources of operational risk;
b) From scrutinizing the access requirements of compensating members;
c) From adopting a structure of accounts that ensures segregation
heritage among the own values of the compensating members
and those belonging to the customers of the latter.
Article 397.
[...]
1-[...].
2-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
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h) [...];
i) From releasing orders that are not immediately enforceable;
j) From respecting the rules on the aggregation of orders and the allocation
of operations;
l) From not executing orders, without the consent of the customer, out of
regulated market or multilateral trading system;
m) To establish a policy of execution of orders or to evaluate it
with the frequency required by law;
n) From respecting the requirement in a written form to the contracts of
financial intermediation;
o) To abide by the rules on the assessment of the appropriate character
of the operation in function of the customer profile.
3-[ Revoked ].
4-[...]:
a) [...];
b) [ Revoked];
c) [...];
d) [...];
e) [ Revoked ];
f) From respecting the rules on subcontracting;
g) From maintaining the customer's record;
h) From respecting the rules on investor categorization. "
Article 8.
Addition to the Securities Code
They are deferred to the Securities Code the articles 16-A, 16.-B, 21.-A, 244.
A, 246.-A, 250.-A, 250.-B, 294.-A, 294 .º-B. 294.-C, 294.-D, 304.-A, 304.-B,
304.-C, 305.-A, 305.-B, 305.-C, 305.-D, 306.--E, 306.-A, 306.-B, 306.-C, 306.
D, 306.-And, 307.-A, 307.-B, 308.-B, 308.-B, 308.-C, 309.-D, 309.
309.-C, 309.-D, 309.-And, 309.-F, 312.-A, 312.-B, 312.-C, 312.-D, 312.-And, 312.-F,
312.-G, 314.-A, 314.-B, 314.-C, 317.-D, 317.-B, 317.-B, 317.-D, 321.
A, 323.-A, 323.-B, 327.-C, 327.-A, 328.-A and 328.-B, with the following wording:
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" Article 16.
Settlement and market creation
1-Except for the duty of communication to the CMVM, the provisions of paragraphs 1 and
2 of the previous article does not apply with respect to shares
traded exclusively for the purpose of operations of
compensation and settlement within the short and usual cycle of
liquidation.
2-For the purposes of the previous number, the short and usual cycle of trading is
of three days of trading counted from the transaction.
3-Except for the duty of communication to the CMVM, the provisions of paragraphs 1 and
2 of the previous article does not apply to intermediary shareholdings
financial acting as a market creator that achievs, surpass
or become less than 5% of the voting rights corresponding to the
social capital, provided that the latter does not intervene in the management of the issuer in
cause, neither influences it to acquire those shares or to support its price.
4-For the purposes of the preceding paragraph, the financial intermediary shall:
a) Communicating to the CMVM, within the time limit laid down in Article 16 (1), that
acts or intends to act as a market creator relatively
to the issuer concerned;
b) Informing the CMVM of the cessation of acting as creator of
market, as soon as making such a decision;
c) Identify, at the request of the CMVM, the shares held in the framework of
market creation activity, and may do so by any
a verifiable medium except if it is unable to identify those
financial instruments, in which case it keeps them into account
separate;
d) Present to the CMVM, at the request of this, the contract of creation of
market when exigible.
Article 16-B
Qualified participation not transparent
1-In the absence of the communication provided for in Article 16, if this does not respect
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the provisions of the preceding paragraph or if, in any case, they exist
cast doubt on the identity of the people to whom they may be
imputed the voting rights relating to a participation
qualified, in accordance with Article 20 (1), or on compliance
cabal of the communication duties, the CMVM notifies this fact the
interested, the organs of administration and surveillance and the President of
table of the general meeting of the open society concerned.
2-Up to 30 days after the notification, may the interested persons present proof
intended to clarify the aspects raised in the notification of the CMVM,
or take action with a view to ensuring the transparency of the title
of the qualifying holdings.
3-Whether the elements are fertilised or the measures taken by the interested non
put an end to the situation, the CMVM informs the market of the lack of
transparency as to the entitlement of qualified stakes in
cause.
4-A from the communication to the market made by the CMVM pursuant to the
previous number, gets immediate and automatically suspended the exercise
of the right to vote and the rights of a patrimonial nature, with the exception
of the right of preference in subscribing to capital increases, inherent
to the qualified participation in question, until the CMVM informs the
market and the entities referred to in paragraph 1 that the title of the
qualified participation is considered transparent.
5-The patrimonial rights referred to in the preceding paragraph that fall to the
affected participation are deposited in special account open with
credit institution enabled to receive deposits in Portugal, being
prohibited its handling of debit while it lastfor the suspension.
6-Before taking the measures set out in paragraphs 1, 3 and 4, the CMVM will give
knowledge of the same to the Bank of Portugal and the Institute of
Insurance from Portugal whenever they are involved entities
subject to the respective supervision.
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Article 21-The
Equivalence
1-issuers with registered office outside the European Union are
dispensed with the performance of the duty to provide information
predicted:
a) In Articles 16 and 17, if, under the applicable law, the
information on qualifying holdings is disclosed at the deadline
maximum seven days of trading;
b) In Article 20 (3) and Article 20 (1)-A, if applicable law
oblige the investment fund managing entities or the
financial intermediaries authorized to provide the management service
of portfolios to keep, in all circumstances, independence
in the exercise of the right to vote in the face of the dominant society and the non
take into account the interests of the dominant society or any
another entity by this controlled whenever conflicts arise from
interests.
2-For the purposes of the b) of the previous number the dominant society
must:
a) Comply with the information duties set out in paragraphs 2 and 5 of the
article 20-The;
b) Declare, in relation to each of the entities referred to in (
b) of the preceding paragraph, which meets the requirements required in paragraph 1
of Article 20;
c) Demonstrate, at the request of the CMVM, that fulfils the requirements
set out in paragraph c) of Article 20 (2)-A and in paragraph 3 of that
article.
Article 244-The
Choice of competent authority
1-For the effects referred to in points c) and d) of paragraph 1 of the previous article, the
competency of CMVM results, respectively:
a) From admission to exclusive trading on regulated market
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situated or operating in Portugal or from the fact that in this one has been
submitted the first application for admission to the European Union;
b) From the choice of Portugal as a competent State from among that
in which the issuer has its registered office and those in whose
territories to be located or to operate regulated markets in
who are admitted to trading the securities in
cause.
2-A choice provided for in the b) of the previous number is made by the issuer
and is valid, at least, for three years.
3-A The choice made by force of the previous number is to be disclosed in the
terms set out in Article 244 (3).
Article 246-The
Quarterly information and interim information of the administration
1-Are required to provide quarterly information to issuers, subject
the Portuguese personal law, of shares admitted to trading on market
regulated that, for two consecutive years, surpass two of the
following limits:
a) Total balance sheet: 100,000,000 euros;
b) Total net sales and other income: 150,000,000 EUR;
c) Number of workers employed on average during the
exercise: 150.
2-The issuers of shares referred to in Article 244 (1) that are not
required to provide the information provided for in the preceding paragraph discloses,
during the first and the second half of the financial year, a
statement of the body of administration concerning the period
between the beginning of the semester and the date of the declaration containing the following
elements:
a) An explanatory description of the relevant occurrences and the
transactions made during the relevant period and its incidence
on the financial position of the issuer and companies per se
dominated; and
b) A general description of the financial position and performance of the
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issuer and of the companies by themselves dominated during the period
relevant.
3-A The declaration referred to in the preceding paragraph is made between the first ten
weeks and the last six weeks of the semester to which you respect.
4-A The disclosure of quarterly information replaces the duty of disclosure of
interim information of the administration.
Article 250-The
Scope
1-The provisions of Articles 245, 246 and 246-The shall not apply to:
a) States, regional authorities, local authorities, bodies
international public that it is part of at least one state-
member, European Central Bank, national central banks of the
Member States;
b) Issuers that only emit representational securities
of debt admitted to trading for trading in a market
regulated, whose unitary nominal value is at least from
EUR 50,000 or equivalent value on the date of issue.
2-The provisions of the b) and d) of Article 249 (2) and (4) no se
applies to the state and its regional and local authority.
3-A This subsection is not applicable to securities
representative of debt issued by maturity of less than one year.
Article 250-B
Equivalence
1-Without prejudice to the duty of dispatch to the CMVM and the provisions of paragraphs 3 and 4 of the
article 244, issuers with registered office outside the European Union
are exempted from compliance with the duties of providing
information provided for:
a) With respect to the point a) of Article 245 (1), relatively
to the management report, if the applicable law obligates the issuer to include
in the annual management report, at a minimum, an appropriate analysis of the
157
developments in business, performance and the situation of the issuer,
a description of the main risks and uncertainties with which to
defaced for the report to present a balanced view and
complete the development and performance of the business of the
issuer and its position, consistent with the size and
complexity of the activity exerted, an indication of the
important events occurring after the closure of the
exercise and indications on the likely future evolution of the
issuer;
b) With respect to the point c ) of Article 245 (1) and (1) c) of the n.
1 of Article 246, if the applicable law obligates the issuer to have
one or more persons responsible for financial information and in
particular, by the compliance of the financial statements with the
set of the applicable accounting standards and the suitability of the
management report;
c) In respect of Article 245 (3), if the applicable law, although
not obliging the disclosure of information in the individual form,
compel the issuer to include in the consolidated accounts information
on the minimum social capital, capital requirements of its own and
liquidity needs and, additionally, for issuers of
shares, calculation of dividends and indication of the ability to
proceed to your payment;
d) In respect of Article 245 (4), if the applicable law, although
not obliking to the disclosure of information in the form
consolidated, obliges the issuer to draw up individual accounts of
agreement with International Accounting Standards
recognized pursuant to Article 3 of Regulation (EC) No
1606/2002 applicable in the European Union, or with the standards
national accounting for a third country considered
equivalent to those standards;
e) In respect of Article 246 (4), if the applicable law obligates the
issuer to disclose a set of financial statements
condensates that includes, at the very least, a management report
interim containing the analysis of the period in question, indications
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on the developments of the issuer in the remaining six months of the financial year
and, additionally for issuers of shares, the main
transactions between related parties, if they are not disclosed
on continuous basis;
f) In respect of Article 246-A, if the applicable law obligates the
issuer to disclose quarterly financial reports;
g) With respect to the point a) of Article 249 (2), if the law
applicable obliging the issuer to provide, at a minimum, information
on the place, timetable and order of proceedings of the assembly;
h) With respect to the point f) of Article 249 (2), if the applicable law
obliging the authorised issuer to hold up to 5%, at the most, of
own actions to inform the public whenever it is reached or
topped that threshold and, for issuers allowed to hold between 5%
and 10%, at most, of own shares, to inform the public
where these thresholds are achieved or overcome;
i) In Article 249 (3), if the applicable law obligates the issuer to
to disclose the total number of voting rights and capital within the period of
thirty days after the occurrence of an increase or decrease of these.
2-For the purposes of the a) of the preceding paragraph the analysis referred to therein includes,
to the extent necessary to ensure the understanding of the evolution, of the
performance or position of the issuer, indicators of the performance
financial and, if necessary, not financial, pertinent to the
developed activity.
3-For the purposes of the c) of paragraph 1, the issuer shall submit to the CMVM, the
application, additional audited information on individual accounts
pertinent to frame the information required therein, and may elaborate
such information in accordance with the accounting standards of a country
third.
4-For the purposes of the d) of paragraph 1, individual accounts shall be
object of audit and if they are not drawn up in accordance with the standards
there they are referred to, are presented in the form of financial information
rephrased.
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Article 294-The
Activity of the linked agent and respective limits
1-The financial intermediary can be represented by linked agent
in the provision of the following services:
a) Prospecting of investors, exercised on a professional basis, without
prior solicitation of these, outside the establishment of the intermediary
financial, with the purpose of capturing customers for any
financial intermediation activities; and
b) Receipt of orders, placement, provision of advice on
financial instruments and on the services provided by the
financial intermediary.
2-A activity is carried out outside the establishment, namely,
when:
a) There is communication in the distance, made directly for the
residence or place of work of any persons,
specifically by correspondence, telephone, e-mail
or fax;
b) There is direct contact between the linked agent and the investor in
any locations, outside the premises of the financial intermediary.
3-In the exercise of its activity is vetted to the linked agent:
a) Acting on behalf of and on account of more than an intermediary
financial, except when among these there is domain relationship
or group;
b) Delegating to other persons the powers conferred upon it by the
financial intermediary;
c) Without prejudice to the provisions of the paragraph b) of paragraph 1, celebrate any
contracts on behalf of the financial intermediary;
d) Receive or deliver money;
e) Act or make investment decisions on behalf or on account
of investors;
f) Receive from investors any kind of remuneration.
4-In its relationship with investors, the linked agent shall:
a) Carry out its identification before those, as well as that of the
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financial intermediary in the name and on account of who exercises the
activity;
b) Deliver written document containing full information,
specifically on the limits to which it is subject in the exercise of
your activity.
Article 294-B
Exercise of activity
1-The exercise of the activity of the linked agent depends on contract
written, concluded between the one and the financial intermediary, which
expressly establish the functions assigned to it,
in particular those provided for in paragraph b) of paragraph 1 of the previous article.
2-Without prejudice to the provisions of the article 294-D, the activity of the agent
linked is exercised:
a) By natural persons, established in Portugal, not integrated
in the organisational structure of the financial intermediary;
b) By commercial companies, with registered office in Portugal, which
do not find themselves in domain or group relation with the
financial intermediary.
3-Linked agent must be elderly and possess training and experience
appropriate professional.
4-The financial intermediary is responsible for the verification of the requirements
predicted in the previous number.
5-In the case provided for in paragraph b) of paragraph 2:
a) The idoneity is affered to the society, the holders of the
body of administration and to the natural persons who exercise the
linked agent activity;
b) The suitability of training and professional experience is awound
relatively to natural persons who carry out the activity of
linked agent.
6-The exercise of the linked agent activity can only start after
communication from the intermediary to the CMVM, for public disclosure, of the
identity of that.
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Article 294-C
Liability and duties of the financial intermediary
1-The financial intermediary:
a) Responds by any acts or omissions of the linked agent in the
exercise of the functions entrusted to it;
b) Must control and scrutinise the activity developed by the agent
linked, finding this subject to internal procedures
of that;
c) Must adopt the necessary measures to prevent the exercise
by the linked agent of activity distinct from that provided for in paragraph 1 of the
article 294-A can have in this any negative impact.
2-Should the financial intermediary allow the linked agents to
receipt of orders, must communicate in advance to the CMVM:
a) The procedures adopted to ensure the observance of the
standards applicable to such service;
b) The written information to be provided to investors about the conditions
of receipt of orders by the linked agents.
Article 294-D
Linked agents not established in Portugal
The provisions of Articles 294 to 294.-C shall apply to persons
established in a member state of the European Union that does not allow the
appointment of linked agents and who wish to exercise, in that State
member, the activity of linked agent in the name and on account of
financial intermediary with registered office in Portugal.
Article 304-The
Civil liability
1-Financial intermediaries are required to indemnify the damage
caused to any person as a result of the violation of duties
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relating to the organisation and the exercise of its business, which
are imposed by law or by regulation emanating from authority
public.
2-A The fault of the financial intermediary presumes when the damage is
caused in the context of contractual or pre-contractual relationships and, in
any case, when it is originated by the violation of duties of
information.
Article 304-B
Deontological codes
The codes of conduct that come to be approved by the associations
professionals of financial intermediaries must be communicated to the
CMVM.
Article 304-C
Duty of communication by the auditors
1-The auditors who provide service to financial intermediary or to
company that with it is in relation to domain or group or that
in it detains, directly or indirectly, at least 20% of the rights to
vote or the social capital, shall immediately communicate to the CMVM the
facts relating to that financial intermediary or to that company of
who have knowledge in the exercise of their duties, when such
facts are likely to:
a) Constitute crime or illicit of mere social ordinance provided for in
legal or regulatory standard setting out the conditions of
authorization or which regulates, in a specific manner, activities of
financial intermediation; or
b) Affect the continuity of the exercise of the activity of the intermediary
financial; or
c) Justify the refusal of the certification of the accounts or the issuance of
reservations.
2-The duty of communication imposed by this article prevails on
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any restrictions on the disclosure of information, legal or
contractually foreseen, and your fulfillment of good faith does not involve
any liability for the respective subjects.
3-If the facts referred to in paragraph 1 constitute insider information in the
terms of Article 248, the CMVM and the Bank of Portugal shall
coordinate the respective actions, with a view to an appropriate
conjugation of the supervisory objectives pursued by each
of these authorities.
4-The auditors referred to in paragraph 1 shall submit, annually, to the CMVM
a report that attests to the proper character of the procedures and
measures, adopted by the financial intermediary, by force of the
provisions of subsection III of this section.
Article 305-The
System for monitoring compliance [ compliance )
1-The financial intermediary shall adopt policies and procedures
appropriate to detect any risk of non-compliance with the duties to which
meets subject, applying measures to minimise them or correct,
avoiding future occurrences, and to allow the competent authorities
exercise their duties.
2-The financial intermediary must establish and maintain a system of
control of independent compliance that covers, at least:
a) The monitoring and regular assessment of suitability and
effectiveness of measures and procedures adopted to detect
any risk of non-compliance with the duties to which the intermediary
financial is subject, as well as of the measures taken
to correct any deficiencies in the performance of these;
b) The provision of advice to the persons referred to in paragraph 5 of the
article 304 responsible for the exercise of activities of
financial intermediation, for the purposes of fulfilling the duties
provided for in this Code;
c) The identification of operations on financial instruments
suspicions of money laundering, financing of
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terrorism and those analyzed in accordance with Article 311 (3);
d) The immediate provision to the body of information administration
about any indications of violation of duties enshrined in
standard referred to in Article 388 (2) that may cause to incur the
financial intermediary or the persons referred to in paragraph 5 of the article
304. in an illicit of a serious counterordinational nature or much
serious;
e) The maintenance of a record of the defaulters and the measures
proposals and adopted in the terms of the preceding paragraph;
f) The elaboration and presentation to the body of administration and the body
of surveillance of a report, of periodicity at least annual,
on the monitoring system of compliance, identifying the
verified defaults and the measures adopted to correct
possible deficiencies.
3-To ensure the adequacy and independence of the control system of the
compliance, the financial intermediary shall:
a) Appoint a person responsible for the same and for any provision of
information regarding that and confers on the necessary powers to the
performance of its functions in an independent manner,
specifically as to the access to relevant information;
b) Endothole it with appropriate means and technical capacity;
c) To ensure that the collaborators involved in the control system
of compliance are not involved in the provision of services
or exercise of activities by you controlled;
d) To ensure that the method of determination of remuneration for
collaborators involved in the system of monitoring compliance
are not likely to compromise your objectivity.
4-The duties provided for in points c) and d) of the previous number are not
required if the financial intermediary demonstrates that his or her
compliance is not necessary to ensure suitability and
independence of this system, taking into account the nature, size and the
complexity of the activities of the financial intermediary, as well as the
type of financial intermediation activities presaged.
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Article 305-B
Management of risks
1-The financial intermediary shall adopt policies and procedures for
identify and manage the risks related to their activities,
procedures and systems, considering the level of tolerated risk.
2-The financial intermediary must keep up with suitability and effectiveness
of the policies and procedures adopted in the terms of the preceding paragraph,
the performance of these by the persons referred to in paragraph 5 of the article
304. and the appropriateness and effectiveness of the measures taken to correct
possible deficiencies in those.
3-The financial intermediary shall establish a management service of
independent risk and responsible for:
a) To ensure the implementation of the policy and procedures referred to in
n. 1; and
b) Providing advice to the body of administration and elaborating and
present to the latter and the supervisory body a report, of
periodicity at least annual, relative to risk management,
indicating whether appropriate measures have been taken to correct
possible deficiencies.
4-The duty provided for in the preceding paragraph shall apply in appropriate terms and
proportional, taking into account the nature, the size and the complexity
of the activities, as well as the type of intermediation activities
financial premised.
5-The financial intermediary who, depending on the criteria set out in the
previous number, do not adopt a risk management service
independent should ensure that policies and procedures
adopted meet the requirements set out in paragraphs 1 and 2.
Article 305.-C
Internal audit
1-The financial intermediary must establish an audit service
internal, which acts with independence, responsible for:
166
a) Adopt and maintain an audit plan to examine and evaluate the
suitability and effectiveness of systems, procedures and standards that
support the internal control system of the intermediary
financial;
b) Issue recommendations based on the results of the assessments
performed and verify their observance; and
c) Elaborate and present to the body of directors and the organ of
supervision a report, of periodicity at least annual, on
audit questions, indicating and identifying the recommendations
that have been followed.
2-The duty provided for in the preceding paragraph shall apply where appropriate and
proportional, taking into account the nature, the size and the complexity
of the activities, as well as the type of intermediation activities
financial premised.
Article 305-D
Responsibilities of the holders of the board of directors
1-Without prejudice to the functions of the supervisory body, the holders of the organ
of administration of the financial intermediary are responsible for
ensure compliance with the duties provided for in this Code.
2-The holders of the board of directors shall periodically assess the
effectiveness of internal policies, procedures and standards adopted for
fulfillment of the duties referred to in Articles 305-to 305-C and
take appropriate measures to correct any deficiencies
detected and prevent its future occurrence.
Article 305-And
Complaints from investors
1-The financial intermediary shall maintain an effective procedure and
transparent for the proper and speedy handling of complaints
received from unqualified investors, which provides for at least:
a) The reception, forwarding and handling of the complaint by
167
collaborator other than the one who practised the act of which he complains;
b) Concrete procedures to be adopted for the assessment of
complaints;
c) Maximum response time.
2-The financial intermediary shall maintain, for a term of 5 years,
records of all claims that include:
a) The complaint and the respective date of entry;
b) The identification of the financial intermediation activity in question
and the date of the occurrence of the facts;
c) The identification of the collaborator who practiced the claimed act;
d) The assessment made by the financial intermediary, the measures
taken to resolve the issue and the date of its communication to the
claimant.
Article 306-The
Recording of movements
1-The financial intermediary shall register daily and sequentially, in
computer support, in your accounting, all movements a
debit and the credit of financial and money instruments, relating to
each customer.
2-The registration of each account movement contains:
a) The name of the customer;
b) The date;
c) The nature of the movement, the debit or the credit;
d) The description of the movement;
e) The remaining balance, relatively the money.
3-Without prejudice to the casuistic control carried out by the intermediary
financial, the computer systems for recording the operations of
financial intermediation must have automatic connection to the system
of accounting.
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Article 306-B
Registration and deposit of financial instruments of customers
1-The financial intermediary who intends to register or deposit
financial instruments of customers, in one or more open accounts together
of a third party shall:
a) Observing care duties and employing high standards of
professional due diligence in selection, appointment and evaluation
periodical of the third party, considering its technical capacity and the
its reputation in the market; and
b) Inform yourself about the legal or regulatory requirements and the
market practices, relating to detention, registration and deposit
of financial instruments by these third parties, susceptible to
negatively affect the rights of customers.
2-The financial intermediary may not register or deposit instruments
financial together with an entity established in a state that does not
regulates the registration and deposit of financial instruments, unless:
a) The nature of financial instruments or of the services of
investment associated with these financial instruments o require it;
or
b) The financial instruments should be registered or deposited
on behalf of a qualified investor who has required it by
written.
Article 306-C
Use of financial instruments of customers
1-Case intends to dispose of financial instruments registered or
deposited on behalf of a client, the financial intermediary shall
request prior and written permission from that, proven, in the case
of unqualified investor, by its signature or by a mechanism
equivalent alternative.
2-If financial instruments are found to be registered or deposited
on a global account, the financial intermediary who intends to have the
169
same must:
a) Request prior and express permission from all customers in whose
name the financial instruments are registered or
deposited jointly in the global account; or
b) Having systems and controls that ensure that they are only
used the financial instruments registered or deposited
on behalf of clients who have previously given their
express permission, pursuant to paragraph 1.
3-The records of the financial intermediary shall include information on
the customer who authorized the use of the financial instruments , the
conditions of such use and the amount of financial instruments
used that are found to be registered or deposited on behalf of each
customer, so as to allow the allocation of possible losses.
Article 306-D
Deposit of money from customers
1-The money delivered by customers to investment firms is
deposited immediately in one or more open accounts together with:
a) A central bank;
b) An authorized credit institution in the European Union to receive
deposits;
c) An authorised bank in a third country; or
d) A fund of the eligible money market, if previously
consented by the customer.
2-The accounts mentioned in the previous number are opened in the name of the
investment company on account of its customers, and may respect the
a single customer or a plurality of these.
3-Whenever it does not deposit the money of customers together from a bank
central, the investment company shall:
a) Act with special care and diligence in the selection, in the appointment
and on the periodic evaluation of the depositary entity, considering the
its technical capacity and reputation in the market; and
b) Inform yourself about the legal or regulatory requirements and the
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market practices relating to the detention of money from customers by
those entities likely to negatively affect the rights
of those.
4-Investment companies must establish written procedures
applicable to the receipt of money from customers, in which they define themselves,
specifically:
a) The means of payment accepted for provisioning of the accounts;
b) The department or the collaborators authorized to receive
money;
c) The type of demonstrator that is delivered to the customer;
d) Rules regarding the place where the same is kept until it is
deposited and the file of documents;
e) The daily periodicity with which the deposit is to be carried out in the
accounts referred to in paragraph 1;
f) The procedures for prevention of money laundering and
financing of terrorism.
5-For the purposes of the d) of paragraph 1, is understood by " fund of the market
eligible monetary ", a collective investment body
harmonized or that is subject to supervision and, if applicable, be
authorized by an authority of a Member State of the Union
European, provided that:
a) Its main purpose of investment is maintenance
constant of the net value of the assets of the body of
collective investment on par or the value of the initial capital of the
investors added to the gains;
b) With a view to the achievement of the main investment objective,
uniquely invist in cash or on instruments of the
high quality money market, with a maturity or
a residual maturity not exceeding one year or with
adjustments of the profitability carried out regularly and, by the
less, annually;
c) Provide liquidity through settlement in the day itself or on the day
next.
6-An instrument of the money market is of high quality if it has
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been the subject of a rating of risk by a rating agency
competent and receive the highest available risk rating by
part of all the competent rating agencies that have been subjective
that instrument the notation.
7-For the purposes of the preceding paragraph, a rating agency shall be competent,
if:
a) Issue risk ratings relating to money market funds
on a regular and professional basis;
b) For an eligible rating agency within the meaning of paragraph 1 of the article
81. of Directive 2006 /48/CE of the European Parliament and of the
Council, of June 14, 2006, on access to business
of credit institutions and their exercise [recast).
Article 306-And
Movement of accounts
1-The financial intermediary shall make available to customers the money
due to any operations relating to financial instruments,
including the perception of interest, dividends and other income:
a) On the day on which the amounts concerned are available
in the account of the financial intermediary;
b) Until the following business day, if the rules of the settlement system of the
operations are inconsistent with the provisions of the preceding paragraph;
or
c) On the date set by convention written with the customer, as long as not
proves to be less favorable to the interests of this.
2-Investment firms can move debit the accounts
referred to in Article 306 (1)-D for:
a) Payment of the subscription price or purchase of instruments
financial for customers;
b) Payment of commissions or fees due by customers; or
c) Transfer to other open accounts on behalf of customers or
transfers determined by customers to accounts by these
indicated.
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Article 307-The
Registration of the customer
The financial intermediary shall maintain a register of the customer, containing,
inter alia, updated information on rights and obligations
of both parties in financial intermediation contracts, which rests on
in the respective supporting documents.
Article 307-B
[...]
1-Without prejudice to more stringent legal or regulatory requirements, the
financial intermediaries retain on file the documents and
records relating to:
a) Operations on financial instruments, by the deadline of five
years after the realization of the operation;
b) Service contracts concluded with the customers or the
documents from which the conditions are listed on the basis of which the
financial intermediary provides services to the customer, until they have
elapsed five years after the end of the clientele relationship.
2-A the request of the competent authorities or their customers, the
financial intermediaries must issue certificates of the records
relating to the operations in which they intervened.
3-Records must be kept in a support that allows the
storage of information in an accessible form for future reference
by the CMVM and so that:
a) Be it possible to reconstitute each of the essential phases of the
treatment of all operations;
b) Any corrections or other changes, as well as the content
of the records before those corrections or changes, may be
easily verified; and
c) It is not possible to manipulate or change, by any way, the
records.
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Article 308.
Principles applicable to subcontracting
1-A subcontracting obeys the following principles:
a) It shall not result in the delegation of the responsibilities of the organ of
administration;
b) Maintenance, by the subcontractor financial intermediary, of the
control of subcontracted activities and functions and the
liability to its customers, particularly of the
information duties;
c) Non-emptying of the activity of the financial intermediary
subcontractor;
d) Maintenance of the relationship and duties of the financial intermediary
subcontractor with respect to its customers, particularly of the
information duties;
e) Maintenance of the requirements for which they depend on the authorisation and the
registration of the subcontractor financial intermediary.
2-The provisions of the d) of the previous number implies that the intermediary
subcontractor financial:
a) Define the management policy and take the main decisions, if the
services, activities or subcontracted functions imply
powers of management of any nature;
b) Keep the exclusive of relations with the customer, there included the
payments that should be made by or to the customer.
Article 308-B
Requirements of subcontracting
1-The subcontractor financial intermediary shall observe duties of
care and employ high standards of professional due diligence in the
conclusion, in the management or cessation of any contract of
subcontracting.
2-The subcontractor financial intermediary shall ensure that the entity
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subcontractor:
a) Has the qualifications, capacity and authorization, if required
by law, to carry out in a reliable and professional manner the
subcontracted activities or functions;
b) Provides effectively the subcontracted activities or functions;
c) Controls the realization of the subcontracted activities or functions and
generate the risks associated with subcontracting;
d) It has all the information necessary to comply with the
subcontracting contract;
e) Informs the financial intermediary subcontractor of facts
likely to influence their ability to exercise, in
compliance with legislative and regulatory requirements
applicable, the subcontracted activities or functions;
f) Cooperates with the supervisory authorities regarding the
subcontracted activities or functions;
g) Allows the access of the subcontractor financial intermediary, of the
respective auditors and the authorities for information supervision
on subcontracted activities or functions, as well as the
your commercial premises;
h) Diligencia in the sense of protecting any information
confidential relating to the subcontractor financial intermediary
or to their customers.
3-In addition to the duties provided for in the preceding paragraph, the intermediary
subcontractor financial shall:
a) Have the technical capacity required to supervise the
subcontracted activities or functions and to manage the risks
associated with subcontracting;
b) Establish methods of evaluation of the level of performance of the
subcontracted entity;
c) Take appropriate measures, if it suspects that the entity
subcontractor may not be providing the activities or functions
subcontractors effectively and in fulfillment of the requirements
applicable legal and regulatory;
d) Be able to cease the contract of subcontracting, where necessary,
175
without prejudice to the continuity and quality of the services provided
to customers;
e) Include in your annual reports the essential elements of the
subcontracted activities or functions and the terms in which
elapsed.
4-Where necessary, taking into account the activities or functions
subcontractors, the subcontractor financial intermediary and the entity
subcontractor should adopt a contigation plan and carry out rehearsals
periodicals of the security copy systems.
5-If the subcontractor financial intermediary and the subcontractor entity
integrate the same group of societies, the first can, for purposes
of the preceding paragraphs and Article 308-C, take into account the measure in
which controls the subcontractor entity or influences its actions and in
that this is included in the consolidated supervision of the group.
6-In the case referred to in the preceding paragraph, the financial intermediary
subcontractor is responsible for compliance with the standards concerning the
prevention and management of conflicts of interest and segregation of
functions.
7-A subcontracting is formalized by written contract, of which the
rights and duties that arise for both parties of the willing
articles and in the previous numbers.
Article 308-C
Subcontracting of portfolios management services in entities located in countries
third parties
1-In addition to the fulfilment of the requirements set out in Articles 308 to and
308.-B , a financial intermediary may subcontract the service of
management of portfolios the entity located in a country not belonging to the
European Union, provided that:
a) In your country of origin, the subcontractor entity is authorized to
provide such service and be subject to prudential supervision; and
b) There is a cooperation agreement between the CMVM and the authority of
supervision of that entity.
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2-When not check any of the conditions laid down in the number
previous, a financial intermediary may proceed to subcontracting
together with an entity located in a country not belonging to the Union
European, if the CMVM, within 90 days after being notified of the
subcontracting contract, not raise objections to the same.
3-A CMVM disseminates, pursuant to Rule 367:
a) The list of the supervisory authorities of countries not belonging to the
European Union with which to have cooperation agreements for
effects of point a) of paragraph 1;
b) A statement of principles that includes examples of situations in
that, even if there were not one of the conditions laid down in the
n. 1, CMVM would raise no objections to a subcontracting,
including a clear explanation of the reasons why, in these
cases, subcontracting would not jeopardize compliance with the
requirements set out in Articles 308-A and 308 .º-B.
Article 308-D
Information to be provided to the CMVM
1-The subcontractor financial intermediary shall render the CMVM all the
information necessary for the verification of compliance with the provisions of
in the previous articles, specifically:
a) Contract of subcontracting;
b) Name of the persons responsible for decision making and the
control of subcontracted activities or functions;
c) Description of procedures for control and exchange of information
between the two entities;
d) Identity of the supervisory authority of the subcontractor entity,
if applicable;
e) Any fact with repercussion in activity or function
subcontractor that could endanger the principles enshrined in the
article 308.
2-Whenever the subcontractor entity is established in a country
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not belonging to the European Union, CMVM can confirm, together with
competent supervisory authority, the information by that provided.
Article 309-A. para.
Policy on conflicts of interest
1-The financial intermediary shall adopt a policy in respect of
conflicts of interest, reduced to written, and appropriate to their size and
organisation and the nature, the size and the complexity of their
activities.
2-Whenever the financial intermediary is part of a group of
societies, the policy shall also take into account any
circumstances that are, or should be, of the knowledge of that
likely to originate a conflict of interest arising from the structure
and commercial activities of other companies in the group.
3-A The policy on conflicts of interest shall:
a) Identify, in respect of financial intermediation activities
specific premised by or on behalf of the financial intermediary,
the circumstances that constitute or may give rise to a
conflict of interest;
b) Specify the procedures to be followed and the measures to be taken, in order
of managing such conflicts.
4-The procedures and measures provided for in the paragraph b) of the number
previous to be designed in such a way as to ensure that people
referred to in Article 304 (5) involved in different activities,
implying a conflict situation of interests of the specified type
in the paragraph a) from the previous number, develop the said activities
with an appropriate degree of independence in the face of dimension and
activities of the financial intermediary and of the group to which it belongs and the
importance of the risk of injury to the interests of customers.
5-To the extent necessary to ensure the level of independence
required, should be included:
a) Effective procedures to prevent or control the exchange of
information between persons referred to in Article 304 (5).
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involved in activities that entail a risk of conflict of
interests, whenever that one may harm the interests of a
or more customers;
b) A separate audit of the persons referred to in paragraph 5 of the article
304. whose main functions involve the realization of
activities on behalf of clients, or the provision of services to
These, when your interests may be in conflict or
when they represent different interests, likely to be in
conflict, including with those of the financial intermediary;
c) The elimination of any direct relationship between the remuneration of
persons referred to in Article 304 (5) involved in a
activity and remuneration or revenue generated by other
persons referred to in Article 304 (5), involved in another
activity, to the extent that a conflict of
interests between such activities;
d) The adoption of measures to prevent or limit any
person of exerting an inappropriate influence on the way in which
a person referred to in Article 304 (5) provides activities of
financial intermediation;
e) The adoption of measures aimed at preventing or controlling the
simultaneous or sequential involvement of a person referred to in the
n Article 304 (5) in different intermediation activities
financial, when such involvement may hinder management
proper of conflicts of interest.
6-Should the adoption of any of the procedures and measures provided for in the
previous number do not ensure the required level of independence, the
CMVM may require the financial intermediary to adopt the measures
alternatives or additional that prove necessary and suitable for the
effect.
Article 309-B
Conflicts of potentially harmful interests for a client
The policy on conflicts of interest referred to in the previous article
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must compulsorily contemplate the situations in which, as a result of
provision of financial intermediation activities or by another
circumstance, the financial intermediary, a person in domain relation
with this or a person referred to in Article 304 (5):
a) Be liable to obtain a financial gain or avoid a loss
financial, to the detriment of the customer;
b) Have an interest in the results arising from a service provided
to the customer or of an operation carried out on account of the customer, who
be conflicted with the interest of the customer in these results;
c) Receive a financial or other benefit to
privileging the interests of another customer in the face of the interests of the
client concerned;
d) Develop the same activities as the customer;
e) Receive or come to receive, from a person other than the client, a
illicit benefit pertaining to a service provided to the customer, under
form of money, goods or services, other than the commission or the
normal honorariums of that service.
Article 309-C
Registration of activities that originate conflicts of interest
1-The financial intermediary shall maintain and update regularly
records of all types of financial intermediation activities ,
carried out directly by you or on your behalf, which originated a
conflict of interest with relevant risk of earmarking the interests of
one or more customers or, in the case of ongoing activities, likely to
the originate.
2-When you pay for services related to public or other offers of
that results in the knowledge of insider information, the intermediary
should draw up lists of the people who had access to the information.
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Article 309-D
Investment recommendations
1-The financial intermediary who, outside the scope of the exercise of
consultancy activity for investment, draws up recommendations from
investment, as defined in Article 12-A, intended or
which are likely to be disclosed, under their responsibility or
society belonging to the same group, as recommendations of
investment to its customers or the public, must comply with the provisions of the
Article 309 (5)-A relatively the persons involved in the
elaboration of the recommendations.
2-The people involved in the drafting of the recommendation cannot
carry out personal operations, in a sense contrary to what in it if
recommends, on the financial instruments covered by the
recommendation or financial instruments with them related, save
if exceptional circumstances occur and are for such authorized
by the competent service of the financial intermediary.
3-The analysts and other persons referred to in Article 304 (5) that
meet the likely timing of disclosure of the recommendation or your
content cannot carry out operations, neither on its account, nor by
account of outrain, on the financial instruments covered by the
recommendation or financial instruments with them related before
of the recipients of the recommendation to whom they have had access and to
opportunity to make investment decisions depending on your
content, except if in the context of the normal exercise of the function of
market creator or in execution of a customer order no
requested.
4-For the purpose of the provisions in the preceding paragraphs shall be deemed to be
financial related to another financial instrument any
financial instrument whose price is likely to be influenced by
price oscillations from another financial instrument.
5-The financial intermediary, the analysts and other persons referred to in the n.
5 of Article 304 involved in the drafting of recommendations no
can:
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a) Accept, from whom it has a significant interest in the subject matter
of the illegitimate benefits recommendations, as defined in the
article 313;
b) Promising a favourable assessment to issuers to which the
recommendation refers.
6-Until its communication to the recipients, the financial intermediary shall
limit access to the content of the recommendation to the analysts involved
in its elaboration.
7-The financial intermediary shall adopt the procedures for
ensure compliance with the provisions of the n. 2 a to 6.
8-The financial intermediary may disclose, together with the public or from
customers, investment recommendations drawn up by third parties since
that, in addition to compliance with the provisions of Article 12-D, check
that who the elabora is subject to requirements equivalent to those provided for
in this diploma with respect to the elaboration of recommendations or
has established an internal policy that provides them.
Article 309-And
Operations carried out by relevant persons
1-The financial intermediary shall adopt procedures aimed at
prevent any person referred to in Rule 304 (5) involved in
activities likely to originate a conflict of interest or that
have access to insider information or other information
confidential conduct a personal operation or advise or request the
listen to the realization of an operation on financial instruments:
a) In violation of Article 248 (4) and Article 378;
b) Which involves the unlawful use or undue disclosure of the
confidential information;
c) In violation of any duty of the financial intermediary
provided for in this Code.
2-The procedures adopted by the financial intermediary shall
ensure, in particular, that:
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a) All persons referred to in Article 304 (5) covered by the
n. 1 are informed of the restrictions and procedures
relating to personal operations;
b) The financial intermediary is immediately informed of all
the personal operations carried out; and
c) Be kept a record of each personal operation, including
indication of any permit or prohibition concerning the same.
Article 309-F
Personal operation
For the purposes of Articles 309-D and 309.-And, is understood by personal operation,
an operation on a financial instrument completed by a person
referred to in Article 304 (5) or in its name, provided that:
a) The person referred to in Article 304 (5) acts outside the scope of the
functions that it carries out in that quality; or
b) The operation is carried out on account:
i) Of the person referred to in Article 304 (5);
ii) Of persons who with the person referred to in Article 304 (5)
have a relationship in accordance with Article 248 (4);
iii) Of a society in which the person referred to in Article 304 (5)
detain, directly or indirectly, at least 20% of the rights to
vote or social capital;
iv) Of society in group relation with society dominated by the
person referred to in Article 304 (5); or
v) From a person whose relationship with the person referred to in paragraph 5 of the article
304. be such that this has a material interest, direct or
indirect, in the result of the transaction, in addition to the remuneration or
commission charged for the execution of it.
Article 312-The
Quality of information
1-A information disclosed by the financial intermediary to investors not
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qualified must:
a) Include your social denomination;
b) Be accurate and, in particular, not to give emphasis to any benefits
potential of a financial intermediation activity or a
financial instrument, without giving also a correct indication
and clear of any relevant risks;
c) Be presented in such a way as to be understood by the recipient
medium;
d) Be presented in such a way as to not hide or underestimate elements,
statements or important notices.
2-A comparison of financial intermediation activities, instruments
financial or financial intermediaries should focus on aspects
relevant and specify the facts and assumptions of which it depends and the
sources on which it is based.
3-The indications of results recorded in the past of an instrument
financial, of a financial index or of an activity of
financial intermediation should:
a) Do not constitute the most visible aspect of communication;
b) Include appropriate information regarding the results covering the
five years immediately preceding, or the entirety of the period
for which the financial instrument was offered, if lower than
five years, but not less than one year, or for a period more
long that the financial intermediary has decided and that if
base, in any case, in full periods of twelve months;
c) Refer to the period of reference and the source of the information;
d) Contain a well-visible warning that the data refers to the
past and that the results recorded in the past do not constitute
a reliable indicator of future results;
e) Where they are based on data denominated in a currency
different from that of the State in which you reside an investor not
qualified, indicate the currency and include a warning that the gains
for the investor may increase or decrease as a consequence
of exchange rate oscillations; and
f) Where they are based on raw results, indicate the effects
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of the commissions, remuneration or other charges.
4-A indication of simulated past results should refer to only the
financial instruments and financial indices and:
a) Be based on the actual results verified in the past of one or
more financial instruments, financial indices or activities
of financial intermediation that are identical or are
underlying the financial instrument concerned;
b) Respect the conditions laid down in points a) a c) , e) and f) from the
previous number, in relation to the results verified in the past;
and
c) Contain a well-visible warning that the data refers to
simulated results of the past and that the results recorded in the
past do not constitute a reliable indicator of the results
futures.
5-A indication of future results:
a) It cannot be based on simulated past results;
b) Must be based on reasonable assumptions, supported by data
objectives;
c) If it is based on raw results, it should indicate the effects of the
commissions, remuneration and other charges; and
d) It must contain a well-visible warning that it does not constitute a
reliable indicator of future results.
6-A reference to a specific tax treatment should indicate, in a manner
highlighted, that this one depends on the individual circumstances of each
client.
7-Reference is prohibited to any competent authority so that
suggest any support or approval on the part of this to the products or
services of the financial intermediary.
Article 312-B
Time of provision of information
1-The financial intermediary shall provide the unqualified investor,
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in advance sufficient to the linking to any contract of
financial intermediation or, in the pendency of a clientele relationship,
prior to the provision of the proposed financial intermediation activity
or requested, the following information:
a) The content of the contract;
b) The information required in Articles 312-C to 312.-G-related
with the contract or the activity of financial intermediation.
2-The financial intermediary may provide the required information in the
previous number immediately after the beginning of the provision of the service,
if:
a) At the request of the customer, the contract has been concluded using a
means of distance communication that prevented it from providing the
information in accordance with paragraph 1; or
b) Providing the information provided for in Article 15 of the Decree-Law No
95/2006, of May 29, as if the investor were a
"consumer" and the financial intermediary a " provider of
financial services " within the meaning of this diploma.
3-Financial intermediary notifies the customer, in advance
sufficient, through the same support with which it was provided
initially, of any significant change in the information
provided under the articles 312. ºC to 312 .º-G.
Article 312-C
Information relating to the financial intermediary and the services per se provided
1-The financial intermediary shall provide the following information to
unqualified investors:
a) The appellation, the nature and the address of the intermediary
financial and the contact elements necessary for the
client can effectively communicate with this;
b) The languages in which the client can communicate with the intermediary
financial and receive from this documents and other information;
c) The channels of communication to be used between the intermediary
financial and the customer, including, where appropriate, for the purpose of
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sending and receiving orders;
d) Statement that attests that the financial intermediary is
authorized for the provision of the intermediation activity
financial, indication of the date of the authorization, with reference to the
supervisory authority that granted it and its respective address of
contact;
e) Where the financial intermediary acts through an agent
bound, a declaration in that sense, specifying the State
member of the European Union in which the agent is listed as listing
public;
f) The nature, frequency and periodicity of the reports on the
performance of the service to be provided by the financial intermediary to the
client;
g) Should the financial intermediary detain financial instruments
or money from customers, a summary description of the measures
taken to ensure its protection, inter alia
synthetic information on the systems for compensation of the
investors and guarantee of deposits applicable to the intermediary
financial by virtue of its activities in a member state of the
European Union;
h) A description, yet presented synthetically, of the policy
in matters of conflicts of interest followed by the intermediary
financial, in accordance with Article 309 and, if the customer
request, additional information on that policy;
i) The existence and mode of operation of the service of the
financial intermediary intended to receive and analyze the
complaints from investors, as well as indication of the
possibility of complaint with the supervisory authority;
j) The nature, the general and specific risks, specifically of
liquidity, credit or market, and the underlying implications of the
service that it aims to provide, the knowledge of which is necessary for the
investor decision making, taking into account the nature of the
service to be provided, the knowledge and experience manifested,
by handing over a document that reflects this information.
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2-When the customer is a qualified investor, the willing in the number
previous only applies if this expressly requests the information
in it referred to, and the financial intermediary shall inform
expressly the customer of that right.
Article 312-D
Additional information concerning the management of portfolios
1-In addition to the information required in the article previous, the intermediate
financial that offers or effectively delivers the management service of
portfolios to an unqualified investor, must inform you about:
a) The method and the frequency of evaluation of financial instruments
of the customer's portfolio;
b) Any subcontracting of the discretionary management of totality, or
of a part, of the financial instruments or of the money of the
customer's wallet;
c) The specification of the reference value face to which they are compared
the results of the customer's portfolio or other method of
assessment that is adopted pursuant to paragraph 2;
d) The types of financial instruments likely to be
included in the customer's portfolio and the types of operations susceptible
of being carried out on these financial instruments, including
possible limits;
e) The management objectives, the level of risk reflected in the exercise of
discretization of the manager and any specific limitations
of this discretization.
2-To allow the evaluation by the customer of the performance of the portfolio, the
financial intermediary shall establish a suitable method of
evaluation, specifically through the setting of a reference value,
basing on the client's investment objectives and the types of
financial instruments included in the portfolio.
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Article 312-And
Information on financial instruments
1-The financial intermediary shall inform the investors of nature and
of the risks of financial instruments, explaining, with a degree
sufficient detailing, the nature and the risks of the type of
financial instrument in question.
2-A The description of the risks shall include:
a) The risks associated with the financial instrument, including a
explanation of the impact of the leverage effect and the risk of
loss of the entirety of the investment;
b) The volatility of the price of the financial instrument and the possible
limitations existing in the market in which the same is negotiated;
c) The fact that the investor can take over, as a result of operations
on the financial instrument, financial and other commitments
additional obligations, in addition to the cost of purchasing the same;
d) Any requirements in respect of margins or obligations
analogues, applicable to the financial instruments of that type.
3-A information, provided to an unqualified investor about a value
furnishings the subject of a public offer, must include the information
on the place where the respective prospectus can be consulted.
4-Where the risks associated with a composite financial instrument
of two or more financial instruments or services are likely to
of being superior to the risks associated with each of the instruments or
of the financial services that make up it, the financial intermediary
must present a description of the way in which their interaction increases
the risk.
5-In the case of financial instruments that include a guarantee of a
third, the information on the guarantee must include sufficient elements
on the guarantor and the guarantee, in order to allow a correct assessment
on the part of an unqualified investor.
6-A simplified prospectus pertaining to units of participation in a
harmonized collective investment body and which respects the
article 28 of Directive No 85 /611/CEE is deemed appropriate for
189
effects of the provisions of the paragraph d) of Article 312 (1)
Article 312-F
Information on the protection of the heritage of customers
1-The financial intermediary, whenever he or she detains, or may come to detain,
financial instruments or money that belong to investors not
qualified, must inform them about:
a) The possibility of financial instruments or money
be able to come to be held by a third party on behalf of the
financial intermediary and the responsibility assumed by this,
by virtue of the applicable law, in respect of any acts or
omissions of the third party, and the consequences for the customer of the
insolvency of the third party;
b) The possibility that the financial instruments may be able to come
held by a third party in a global account, should this be permitted
by applicable law, presenting a well-visible warning on the
resultant risks;
c) The impossibility, by virtue of the applicable law, to identify
separately the financial instruments of customers, held
by a third party, in the face of the financial instruments owned
of that third party or the financial intermediary, presenting a
well visible warning of the resulting risks;
d) The fact that accounts containing financial instruments or
money from the customer being, or being able to come to be, subject to law
foreign, indicating that the client's rights may be
affected;
e) The existence and content of rights arising from guarantees that
a third party has, or may come to have, concerning the
financial instruments or the customer's money or rights of
compensation that detains face to these financial instruments or
money.
2-The financial intermediary shall provide qualified investors to
information referred to in points d) and e) of the previous number.
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3-A financial intermediary, before completing operations of
financing of financial instruments, as defined in the article
2. of Commission Regulation (EC) No 1287/2006 of August 10,
relatively to financial instruments belonging to an investor
not qualified or to use them to another title, either by your account or by
account of outrain, must inform the customer, in writing, with sufficient
advance in relation to the use of such financial instruments,
about the obligations and responsibilities that about you relapse through the
the fact of using these financial instruments, the conditions of your
restitution and the risks involved by such use.
Article 312-G
Information on costs and charges
1-The financial intermediary shall provide to unqualified investors,
information on the cost of services, including:
a) The total price to be paid by the investor with respect to the instrument
financial intermediation or financial intermediation activity, including
all remunerations, discriminated commissions, charges and
related expenses and all taxes payable through the
financial intermediary or, if it cannot be indicated a price
exact, the base of calculation of the total price, so that the investor
o can check it;
b) The indication of the currency involved and the rates and costs of conversion
applicable currency exchange, whenever any part of the total price should
be paid or represent an amount in foreign currency;
c) Communication of the collection to the customer of other costs, including
taxes related to operations referring to the instrument
financial intermediation or financial intermediation activity, which no
are paid through the financial intermediary;
d) Modalities of payment or other possible formalities.
2- The information that contains the costs referred to in the preceding paragraph is
released, in a very visible way, on all contact channels with the
public and must be delivered to the investor at the time of the opening of
191
account and whenever at the same if they introduce unfavourable changes to
this one, before these entered into force.
Article 314-The
Management of portfolios and investment advice
1-Within the scope of the provision of portfolios management services or
consultancy for investment, the financial intermediary must obtain from the
investor, in addition to the information referred to in paragraph 1 of the previous article,
information regarding your financial situation and your objectives of
investment.
2-The financial intermediary shall obtain the necessary information for which
be able to understand the essential facts related to the customer and
so that, taking into account the nature and scope of the service provided,
may consider that:
a) The specific operation to be recommended or to be started corresponds to the
investment objectives of the customer in question;
b) The customer can financially support any risks of
related investment, in coherence with its objectives of
investment; and
c) The nature of the customer ensures that this has the experience and the
knowledge necessary to understand the risks involved
in the operation or the management of your portfolio.
3-If the financial intermediary does not obtain the required information, do not
may recommend to the customer investment services or instruments
financial.
4-In the provision of consulting for investment to an investor
qualified, the financial intermediary may assume, for the purposes of
b) of paragraph 2, which the client manages to financially support the
risk of any possible injury caused by the investment.
5-The provisions of the preceding paragraph shall not apply to customers whose treatment
as qualified investors result from an your order.
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Article 314-B
Content of the information required
1-A information concerning the knowledge and experience of a customer
must include:
a) The types of services, operations and financial instruments with which
the customer is familiar;
b) The nature, volume and frequency of the customer's operations in
financial instruments and the period during which they were
carried out;
c) The level of habilitations, the profession or the previous profession
relevant from the client.
2-A information referred to in the preceding paragraph takes into consideration the
nature of the investor, the nature and scope of the service to be provided and the type
of planned product or operation, including complexity and risks
inherent in the same.
3-Whenever the financial intermediary pays a service of
investment to a qualified investor presumes that, in relation to the
products, operations and services for which it is treated as such, that
client has the necessary level of experience and knowledge,
specifically for the purposes of the ( c) of paragraph 2 of the previous article.
4-A information regarding the financial situation of the customer includes, whenever
is relevant, the source and the size of their regular incomes, the
their assets, including net assets, investments and assets
real estate and its regular financial commitments.
5-A information on the investment objectives of the investor
includes, whenever it is relevant, the period during which that
intends to halt the investment, its preferences regarding the
risk-taking, your risk profile and your objectives of
investment.
193
Article 314-C
Provision of information
1-The financial intermediary shall refrain from encouraging a customer to no
provide the required information in the previous figures.
2-The financial intermediary may be based on the information provided by the
customers, unless you have knowledge or are in a position to know
that the information finds itself outdated, inaccurate or incomplete.
3-The financial intermediary who receives from another financial intermediary
instructions to provide investment services on behalf of a customer
of the latter can be based:
a) In the information on the customer that has been transmitted to you by the
financial intermediary who hired him;
b) In the recommendations regarding the service or operation that have
been transmitted to the customer by the other financial intermediary.
4-The financial intermediary who transmits instructions to another
financial intermediary must ensure sufficiency and truthfulness
of the information transmitted on the customer and the suitability of the
recommendations or advice regarding the service or operation that
have been by themselves provided to this.
Article 314-D
Reception, transmission and execution of orders
1-In the exclusive provision of the reception, transmission and
execution of customer orders, yet accompanied by the provision of
ancillary services, the provisions of Article 314 shall not apply, provided that:
a) The object of the transaction is shares admitted to trading in a
regulated market, bonds, excluding that they incorporate
derivatives, units of participation in organisms of
collective investment in harmonized securities and
other non-complex financial instruments;
b) The service is provided on the initiative of the customer;
c) The customer has been cautioned, in writing, albeit in a way
194
standardized, of which, in the provision of this service, the intermediary
financial is not obliged to determine the suitability of the transaction
considered to be the circumstances of the customer; and
d) The financial intermediary complies with the duties on conflicts
of interests provided for in this Code.
2-For the purposes of the a) of the previous number, a financial instrument
is non-complex, provided that:
a) It is not covered in the points e) and f ) of paragraph 1 and b) a and ) of paragraph 1 of the
article 2;
b) Check out frequent opportunities to alienate you, rescue or
carry out at prices that are public and meet the
provision of market participants, corresponding to prices
of market or at prices made available by evaluation systems
independent of the issuer;
c) Do not imply the assumption of responsibilities by the customer who
exceed the cost of acquiring the financial instrument;
d) Be publicly available information appropriate information about your
characteristics, which allows an average unqualified investor
evaluate, in an informed manner, the opportunity to carry out a
operation on that financial instrument.
Article 317-The
Procedures for the solicitation of treatment as an unqualified investor
1-The treatment as an unqualified investor to confer on an investor
qualified under the terms of Article 30 depends on written agreement, the
celebrate between the financial intermediary and the customer that there is required,
which you must need, in clear form, your scope, specifying the
services, financial instruments and operations to which it applies.
2-In the absence of the stipulations provided for in the preceding paragraph, it is presumed that the
said agreement produces effects on all services, instruments
financial and contracted operations.
3-Mediant written statement, the customer may denounce the said agreement
in paragraph 1, at all time.
195
Article 317-B
Requirements and procedures for the solicitation of treatment as a qualified investor
1-The unqualified investor may ask the financial intermediary
treatment as a qualified investor.
2-A satisfaction of the request formulated in the terms of the previous number
depends on prior assessment, to be carried out by the financial intermediary,
of the knowledge and experience of the customer, by which to ensure that
this one has the capacity to make its own decisions of
investment and that understands the risks that they involve,
weighted the nature of services, financial instruments and operations
contractors.
3-For the purposes of the assessment provided for in the preceding paragraph, the customer shall, in the
minimum, respect two of the following requirements:
a) Have carried out operations with a significant volume on the market
relevant, with an average frequency of ten operations per
quarter, during the last four quarters;
b) Have a portfolio of financial instruments, including
also cash deposits, which exceeds € 500,000;
c) To provide or have provided duties in the financial sector, during, by the
less, one year, in office that requires knowledge of the services or
operations in question.
4-In cases where the solicitation has been submitted per person
collective, the assessment provided for in paragraph 2 and the relative to the requirement
mentioned in the point c) from the previous number are made relatively to the
responsible for the investment activities of the applicant.
5-A The request for treatment as a qualified investor observes the
following procedures:
a) The customer requests the financial intermediary, in writing,
treatment as a qualified investor, and you should need the
services, financial instruments and operations in which it intends such
treatment;
b) After carried out the evaluation provided for in the previous article, the
196
financial intermediary shall inform the customer, in writing, of the
deferris of the application and the consequences resulting from the
satisfaction of the formulated request, explaining that such an option
matters a reduction in the protection afforded to it by law or
regulation;
c) Received such information, the customer shall declare, in writing, in
autonomous document, which is aware of the consequences of its
option.
Article 317-C
Responsibility and suitability of qualification
1-Compete to the customer who has requested treatment as an investor
qualified keep the financial intermediary informed about any
amendment likely to affect the assumptions that led to its
qualification.
2-The financial intermediary who knows that a customer has ceased to satisfy
the requirements set out in the previous article shall inform the customer that, if
not to substantiate the maintenance of the requirements, within the time frame by that
determined, is treated as an unqualified investor.
Article 317-D
Eligible counterparties
1-Are eligible counterparties of the financial intermediary with whom
relate:
a) The entities set out in the paragraphs a) a g) and i) , with the exception of
regional governments, of Article 30 (1);
b) The persons set out in the points g) and h) of Article 289 (3)
2-The treatment as eligible counterparty may be sidelined, in relation to
any type of operation or to specific operations, upon
express statement of the eligible counterparty.
3-If, in the statement referred to in the preceding paragraph, the eligible counterparty:
a) Do not expressly request the treatment as an investor not
197
qualified, is the same treated as a qualified investor;
b) Expressly request the treatment as a qualified investor,
may, at all times, request treatment as an investor not
qualified under the terms of Article 317.
4-The financial intermediary may also treat as counterparties
eligible the companies mentioned in the letter b ) of Article 30 (3),
provided that such processing has been by these expressly accepted, by
written, in relation to a type of operation or to specific operations.
5-The recognition of the status of eligible counterparty by intermediary
financial in respect of the company referred to in the preceding paragraph, whose
seat situated in another state, depends on the consecration of such status in the
respective planning.
6-Compliance with the duties provided for in Articles 312 to 314.-D, 321.
a 323.-C and 328 to 333 is not required to the financial intermediary
authorized to perform one or several of the planned services and activities
in the points a) , b) and f) of Article 290 (1) whenever it is at issue
the realization of operations between the financial intermediary and a
eligible counterparty or the provision of ancillary services with those
related.
Article 321-The
Minimum content of contracts
1-Financial intermediation contracts concluded with investors
not qualified must at least contain:
a) Complete identification of the parts, address, and telephone numbers of
contact;
b) Indication that the financial intermediary is authorized for the
provision of the financial intermediation activity, as well as the
their respective registration number in the supervisory authority;
c) General description of the services to be provided, as well as the identification
of the financial instruments subject to the services to be provided;
d) An indication of the rights and duties of the parties, namely those of
legal nature and the respective form of compliance, as well as
198
consequences resulting from the imputable contractual default
to any of the parties;
e) An indication of the law applicable to the contract;
f) Information on the existence and mode of operation of the
service of the financial intermediary intended to receive the
complaints from investors as well as from the possibility of
complaint with the supervisory entity.
2-The elements referred to in the a ) from the previous number can be
received from other financial intermediaries who provide services to the
client, upon prior authorization of this and without prejudice to the duty of
professional secret provided for in Article 304 (4).
Article 323-The
Reporting duties in the scope of portfolio management
1-The financial intermediary shall refer to each customer an extract
periodical, in writing, on portfolios management activities
carried out on account of that customer.
2-The periodical extract addressed to unqualified investors should
include:
a) The designation of the financial intermediary;
b) The identification of the customer's account;
c) A statement of the contents and value of the portfolio, including
information on all financial instruments held, the
their respective market value or the fair value, if the value of
market not to be found available, the cash balance at the beginning and the
final of the period in question and the results of the portfolio during the
same;
d) The total amount of commissions and charges incurred during the
period in question, starting with headings, at least, the
total management commissions and the total costs associated with the implementation,
and including information that a breakdown will be remitted
detailed, upon submission of application;
e) A comparison of the results recorded during the period in
199
cause face to the reference value of the investment results
agreed between the financial intermediary and the customer;
f) The total amount of dividends, interest and other payments
received during the period concerned with respect to the portfolio of the
client;
g) Information on other activities of the financial intermediary
that they confirm you rights with respect to financial instruments
held in the portfolio;
h) Regarding all the operations performed during the period
in question, the information referred to in points c) a m) of paragraph 5 of the
article 323, save if the customer chooses to receive the information about
the operations carried out on an operation basis the operation, being
then applicable to paragraph 5 of this Article.
3-In the case of unqualified investors, the periodical extract shall be
presented semestrally, except when:
a) It is submitted quarterly, at the request of the customer;
b) It shall be applicable to paragraph 5, being submitted at least annually,
except in relation to transactions in financial instruments
covered in the ( b) a f) of Article 2 (2);
c) For presented, at least monthly, whenever a
unqualified investor has authorized the realization of
operations with recourse to loan.
4-The financial intermediary shall inform investors not
qualified from your right to request the shipment of the extract with a
quarterly periodicity.
5-If the customer chooses to receive the information about the operations
performed on an operation basis the operation, after the execution of each
operation, the financial intermediary shall immediately provide the
client, in writing, the essential information regarding that.
6-If addressed to an unqualified investor, the communication referred to in
previous paragraph shall contain the information provided for in paragraph 5 of the article
323. and be sent no later than on the first working day following the
execution of the operation.
200
Article 323-B
Additional information duties
1-The financial intermediary that carries out portfolios management operations
or operates customer accounts that include an uncovered open position
must communicate to unqualified investors any possible losses that
exceed the pre-established limit, agreed between that and each
client.
2-A communication referred to in the preceding paragraph shall be made at the latest
by the end of the working day in which the limit has been exceeded or, in the case of this
have been overtaken on an unhelpful day, at the beginning of the following working day.
Article 323-C
Extract concerning the heritage of customers
1-The financial intermediary shall send, on a monthly basis and in writing, a
extract relating to the assets belonging to the patrimony of customers, save
if the same has already been sent in the frame of the provision of any
other periodical information.
2-The extract referred to in the preceding paragraph shall include:
a) The amount of financial instruments or money held by the
client, at the end of the period covered by the extract, indicating the
movements carried out and the respective dates;
b) The amount of financial instruments or customer money that
has been the subject of instrument financing operations
financial;
c) The amount of any gains that revert in favour of the customer,
by virtue of participation in financing operations of
financial instruments, and the facts that gave them cause;
3-In cases where a customer's portfolio includes the revenues of one or
more unsettled transactions, the information referred to in para. a) from the
previous paragraph may be based on the date of negotiation or on the date of
settlement, provided that it consistently applies the same basis to all a
constant information of the statement.
201
4-When no movements are checked, the extract referred to in paragraph 1
can be sent only quarterly or semestrally, if
consented, in writing, by the customer.
5-The financial intermediary who pays the portfolios management service to
a customer may include the extract referred to in paragraph 1 in the periodical extract
sent to that customer by virtue of Article 323 (1) of the Article.
Article 327-The
Period of validity
1-Orders are valid by the deadline set by the payer, and may not
exceed one year, counted from the day following the date of receipt of the order
by the financial intermediary.
2-The financial intermediary may set deadlines lower than the deadline
maximum predicted in the previous number, informing customers about the
expiration times that you practice, which may vary depending on the
negotiation structures or the nature of financial instruments.
3-If the ordinator does not set the shelf life, the orders are valid until
at the end of the day they are given.
Article 328-The
Aggregation and allocation of orders
1-The financial intermediary-who intends to proceed with aggregation, in a
single order, from orders of several customers or from operations carried out by
own account, must:
a) Ensuring that aggregation is not, in global terms, harmful
to any payer;
b) Inform previously customers whose orders should be aggregated
of its policy for the allocation of orders and, if it is the case, of the
eventuality that the effect of aggregation is detrimental
relatively to a specific order.
2-The payer may object to the aggregation of its order.
3-The intermediary shall adopt a policy of the allocation of orders of
202
customers and on their own that provides an equitable allocation and
indicate, in particular:
a) The way in which the volume and price of the orders relate to the
form of assignment;
b) Procedures designed to prevent reallocation, in a manner
harmful to customers, from operations carried out by account
own, performed in combination with orders from the customers.
Article 328-B
Aggregation and allocation of operations carried out on its own
1-The financial intermediary, which has proceeded to the aggregation of
operations carried out on its own with one or more orders of
customers, it cannot affect the corresponding operations of mode
harmful to customers.
2-Without prejudice to the provisions of the following number, whenever the
financial intermediary proceed to the aggregation of an order of a
client with an operation carried out on their own and the order
aggregated is performed partially, should affect the operations
corresponding priority to the customer.
3-The financial intermediary may affect the mode operation
proportional if it demonstrates grounded that, without the combination,
would not have been able to execute the order or would not have been able to perform it at
such advantageous conditions. "
Article 9.
Amendment to the systematic organization of the Securities Code
1-Title IV of the Securities Code goes on to have the following epiggrafe.
"Negotiation".
2-Chapter I of Title IV of the Securities Code goes on to have the epiggrafe:
"Scope", covering articles 198 to 201;
3-Chapter II of Title IV of the Securities Code goes on to have the epiggrafe:
"Regulated markets and multilateral trading systems", covering:
203
a) In Section I, with the episting "Common provisions", Articles 202 to 216;
b) In Section II, with the epitome "Regulated Markets":
i) in subsection I, with the epiggrafe "General provisions", Articles 217 para.
at 223.
ii) in subsection II, with the epiggrafe "Members", Articles 224 to 226;
iii) in subsection III, with the epiggrafe "Admission to negotiation", the articles
227. to 232.
iv) in subsection IV, with the epiggrafe "Process of admission", the articles
233. and 000.
v) in subsection V, with the epiggrafe "Prospectus", Articles 236 to 000;
vi) in subsection VI, with the epiggrafe " Information relating to values
securities admitted to the negotiation ", Articles 244 to 250 .º-B.
4-Is added a Chapter III to Title IV of the Securities Code, with the
epiggrafe: "Systematic internalization", covering Articles 252 to 257.
5-Title V of the Securities Code goes on to have the following epiggrafe.
"Central counterparty, clearing and settlement".
6-Chapter I of Title V of the Securities Code are entered into
following changes to have the following epigenetic. "Central Counterparty",
covering articles 258 to 265.
7-Chapter II of Title V of the Securities Code goes on to have the following
epiggrafe. "Settlement systems", covering:
a) In section I, with the epitome "General provisions", Articles 266 to
273.
b) In Section II, with the epiggrafe "Operations":
i) In subsection I, with the epiggrafe "General provisions", Articles 274 para.
at 277.
ii) In subsection II, with the epiggrafe " Liquidation of operations of
regulated market ", Articles 278 to 282.
c) In section III, with the epiggrafe "Insolvency of participants", the articles
283. to 286.
d) In Section IV, with the epiggraft "Management", Articles 287 and 288.
8-A Section III of Chapter I of Title VI of the Securities Code passes the
have the following epiggrafe: "Organisation and exercise".
9-In Section III of Chapter I of Title VI of the Securities Code are
204
adited:
a) Subsection I, with the epitographical "General Provisions", covering the
articles 304 to 304-C;
b) Subsection II, with the epiggrafe "Internal organization", covering the
articles 305 to 305--E;
c) Subsection III, with the epigraft "Safeguard of the goods of customers",
covering Articles 306 to 306--E;
d) Subsection IV, with the epiggrafe " Records and conservation of
documents ", covering Articles 307 to 307-B;
e) Subsection V, with the epitographical "Subcontracting", covering the articles
308. to 308.-D;
f) Subsection VI, with the episting " Conflicts of interests and realization of
personal operations ", covering Articles 309 to 309.-F;
g) Subsection VII, with the epitographical "Defense of the market", covering the
articles 310 to 311;
h) Subsection VIII, with the epitographical "Information to investors",
covering:
i) In Division I, with the episting "General principles", Articles 312 to
312.-B;
ii) In Division II, with the epiggrafe "Minimum information", the articles
312.-C to 312. g-G;
i) Subsection IX, with the episting "Benefits illegitimate", covering the
article 313;
j) Subsection X, with the epitome " Appreciation of the appropriate character of the
operation ", covering articles 314 to 314-D;
l) Subsection XI, with the epitographical "Reporting of operations", covering the
article 315;
m) Subsection XII, with the epiggrafe " Information relating to operations in
shares admitted to trading on regulated market ", covering
the Article 316 para.
10-A Section IV of Chapter I of Title VI of the Securities Code passes
to have the following epiggrafe: "Categorization of investors", covering the articles
317. to 317 .no-D.
11-In Chapter I of Title VI of the Securities Code is added to the section
205
V, with the following epiggrafe: "Regulation", covering Articles 318 to 320.
12-In Section I of Chapter II of Title VI of the Securities Code are
added to subsections I and II, with the following epitographs: " Conclusion of contracts
of intermediation "and" contractual information ", covering articles 321 to 322 and
323. to 324, respectively.
13-A Section II of Chapter II of Title VI of the Securities Code passes
covering articles 325 to 334.
Article 10.
Amendment to the Code of Commercial Societies
Articles 365 and 372 of the Code of Commercial Societies, approved by the
Decree-Law No. 262/86 of September 2, with the amendments introduced by the
Decrees-Laws No 184/87 of April 21, para. 280/87, July 8, para. 229-B/88, 4
of July, paragraph 418/89, of November 30, para. 142-A/91, April 10, para. 238/91, 2
of July, paragraph 225/92, of October 21, para. 20/93, January 26, para. 261/95 of 3 of
October, paragraph 328/95, of December 9, para. 257/96, December 31, para. 343/98, 6
of November, paragraph 486/99, of November 13, para. 36/2000, March 14, para.
237/2001, of August 30, para. 162/2002, of July 11, para. 107/2003, of June 4,
n ° 88/2004 of April 20, para. 19/2005, January 18, para. 35/2005, 17 para.
February, paragraph 111/2005, of July 8, para. 52/2006, March 15, para. 76-A/2006, of
March 29, paragraph 8/2007, of January 17 shall be replaced by the following:
" Article 365.
[...]
Public limited companies may issue convertible bonds in shares
representative of your capital or by you held.
Article 372-The
[...]
Public limited companies may issue bonds with warrant . "
206
Article 11.
Amendment to the legal regime of brokerage and financial brokerage companies
-Decree-Law No. 262/2001, of September 28
Articles 2 and 3 of the legal regime of the brokerage and financial companies of
brokerage, approved by Decree-Law No. 262/2001, of September 28 go on
following wording:
" Article 2.
[...]
1-The brokerage companies have for the purpose of the provision of the services and
activities referred to in points a) , b) , c) and f) and the allotment without warranty
on public offer for distribution referred to in para. d) , all from the article
290. of the Securities Code.
2-The object of the brokerage companies further comprises the services and
activities indicated in the ( a) and c) of Article 291 of the Code of
Securities, as well as any others whose exercise is
allowed by porery of the Minister of Finance, ears the Bank of
Portugal and the Commission of the Securities Market.
Article 3.
[...]
1-brokerage financial companies have for the purpose of the provision of the
services and activities referred to in Article 290 of the Code of Values
Securities.
2-Include still in the object of the brokerage financial companies the
services and activities indicated in Article 291 of the Code of Values
Securities, as well as any others whose exercise is to them
allowed by porery of the Minister of Finance, ears the Bank of
Portugal and the Commission of the Securities Market. "
207
Article 12.
Amendment to the Legal Regime of Collective Investment Organisms
The 47. and 83 of the Legal Regime of Collective Investment Organisms, approved
by Decree-Law No. 252/2003 of October 17 and amended by the Decree-Law n.
52/2006, of March 15, shall be replaced by the following:
" Article 47.
Out-of-market regulated and trading system operations
multilateral
They are the subject of special registration organised by the managing entity as
operations on assets admitted to trading on regulated market
carried out outside regulated market and trading system
multilateral.
Article 83.
Regulation
[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) [...];
i) [...];
j) Registration of operations, on account of the OIC, on assets admitted to the
trading on regulated market held out of market
regulated or multilateral trading system;
l) [...];
m) [...];
208
n) [...];
o) [...];
p) [...];
q) [...];
r) [...];
s) [...];
t) [...];
u) [...];
v) [...];
x) [...];
z) [...]. "
Article 13.
Amendment to Decree-Law No 176/95 of July 26
Articles 2 and 5-A of the Decree-Law No. 176/95 of July 26, with the amendments
introduced by Decree-Law No. 60/2004 of March 22, they go on to the following
wording:
" Article 2.
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-[...].
6-To the information duties provided for in the preceding paragraphs may
add, if they prove necessary for the effective understanding by the
tomador of the essential elements of the commitment, information duties
and of advertising adjusted to the special characteristics of insurance or
operations of the "Life" branch, to be fixed by the standard of the Insurance Institute of
Portugal or, in the case of insurance contracts linked to funds of
investment, by the Securities Market Commission, heard
209
the Insurance Institute of Portugal.
7-If the specific characteristics of insurance or operations are justified,
it may be required that the information be made available through a
informational prospectus whose contents and support are defined by the standard of the
Institute of Insurance of Portugal or, in the case of connected insurance contracts
to investment funds, by regulation of the Commission of the Market of
Securities, heard the Insurance Institute of Portugal.
8-[...].
Article 5-The
[...]
1-[...].
2-[...].
3-To the pre-contractual duties provided for in Article 179 (1) of the Decree-
Law No. 94-B/98 of April 17, plus specific duties of
information and advertising to be defined by the Insurance Institute of Portugal
or, in the case of insurance contracts linked to investment funds, by the
Commission of the Securities Market, heard the Institute of
Insurance from Portugal.
4-Without prejudice to the fulfilment of other pre--information duties
contractual, insurance companies must make the information available
provided for in the preceding paragraph through informational prospectus whose
content and support are defined by the Insurance Institute of Portugal or,
in the case of insurance contracts linked to investment funds, by the
Commission of the Securities Market, heard the Institute of
Insurance from Portugal.
5-[...].
6-[...].
7-[...].
8-[...]. "
210
Article 14.
Amendment to Decree-Law No 94-B/98 of April 17
Articles 6, 20, 131-B, 156-B, 243, 17 of the Decree-Law No 94-B/98 of 17 of
April, republished by Decree-Law No. 251/2003 of October 14, with the amendments
introduced by Decree-law No. 145/2006 of July 31 go to the following
wording:
" Article 6.
[...]
1-[ Previous body of the article ].
2-The provisions of the preceding paragraph shall be without prejudice to the powers of supervision
relating to insurance contracts linked to investment funds
assigned to the Securities Market Commission.
Article 20.
[...]
1-[...].
2-[...].
3-When the company dedicates itself to the marketing of insurance contracts
linked to investment funds, the decision to revocation is preceded by
opinion of the Securities Market Committee.
4-[ Previous Article No 3 ].
5-[ Previous Article No 4 ].
6-[ Previous Article No 5 ].
Article 131-The
[...]
1-A advertising carried out by the insurance companies and their
business associations is subject to the general law, without prejudice to what it is
211
set in a standard of the Insurance Institute of Portugal and, in the case of
insurance contracts linked to investment funds, in regulation
of the Commission of the Securities Market, heard the Institute of
Insurance from Portugal.
2-The regulations provided for in the preceding paragraph, which will ensure the
protection of specific insurance creditors, may cover the
insurance intermediaries and must provide for the terms of the disclosure of the
tariff conditions on insurance intended for natural persons.
Article 131-B
Intervention of the Insurance Institute of Portugal and the Stock Market Commission
Securities
1-Without prejudice to the attributions of the Stock Market Commission
Securities in respect of insurance contracts linked to funds of
investment, and of assignments that reliefs specifically from the tutelage of the
consumers committed to other institutions and the establishment of
forms of cooperation with them, the surveillance of compliance with the
applicable standards for the advertising of insurance companies and
of its business associations competes with the Insurance Institute of
Portugal.
2-[...].
3-[...]
Article 156.
[...]
1-[...].
2-The provisions of the preceding paragraph shall be without prejudice to the tasks of the Commission
of the Securities Market in respect of insurance contracts
linked to investment funds.
3-[ Previous Article No 2 ].
4-[ Previous Article No 3 ].
212
Article 243.
[...]
1-[ Previous body of the article ].
2-The provisions of the preceding paragraph shall be without prejudice to the powers of regulation of the
Commission of the Securities Market regarding contracts
of insurance linked to investment funds. "
Article 15.
Amendment to Decree-Law No 12/2006 of January 20
Articles 14, 23, 26, 30, 42, 64, 65, 65, 65, and 92 of the Decree-Law No
12/2006, of January 20 shall be replaced by the following:
" Article 14.
[...]
1-Two or more open pension funds, managed by the same entity
gestures, each with a policy of own investment and
differential from the remaining can be marketed jointly,
so as to make it easier for taxpayers to choose between various options of
investment.
2-A adherence to the set of funds provided for in the preceding paragraph shall be carried out
upon the conclusion of a single accession contract, which shall
indicate, in particular, the special conditions of transfer of the
units of participation among the traded funds
jointly, in the terms to be defined by regulatory standard of the Institute
of Insurance from Portugal or, in the case of individual adhesions to funds of
open pensions, by regulation of the Stock Market Commission
Securities, heard the Insurance Institute of Portugal.
213
Article 23.
[...]
1-[...].
2-[...]:
a) [...];
b) [...];
c) Type of accession admitted;
d) [ Previous paragraph (c) ] ;
e) Denomination and seat of the marketers;
f) [ Previous point (d) ];
g) [ Previous point (e) ];
h) [ Previous point f) ];
i) [ Previous point (g) ];
j) [ Previous point (h) ];
k) [ Previous point (i) ];
l) [ Previous point (j) ];
m) [ Previous point (k) ];
n) [ Previous point l) ];
o) [ Previous point (m) ];
p) [ Previous paragraph (n) ];
q) [ Previous point (o) ];
r) [ Previous paragraph (p) ];
s) [ Previous point (q) ];
t) [ Previous point r) ];
u) [ Previous point (s) ];
v) [ Previous point (t) ].
3-Without prejudice to the provisions of the following number, the value of the units of
participation, the discriminated composition of the applications of the fund and the
number of units of participation should be published with
minimum monthly periodicity in the appropriate means of disclosure, in the
terms established by regulatory standard of the Insurance Institute of
Portugal, heard, in the case of open pension funds with membership
individual, the Commission of the Securities Market.
214
4-[...].
5-The regime of liability for valuation errors is established
by regulatory standard of the Insurance Institute of Portugal, heard the
Commission of the Securities Market.
Article 26.
[...]
1-[...].
2-[...].
3-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) Reference to the Insurance Institute of Portugal and the Commission of the
Securities Market, as being the authorities of
competent supervision;
h) [...];
i) [...].
4-[...].
5-[...].
Article 29.
[...]
1-In exceptional circumstances and whenever the interest of the participants
and beneficiaries advises him, the underwriting or transfer operations of
units of participation in open pension funds can be
suspended by decision of the managing entity, of the Insurance Institute of
Portugal or, in the case of open pension funds with individual membership,
of the Securities Market Committee in these latter case,
215
being previously heard from the other authority.
2-A The managing body communicates the suspension referred to in the preceding paragraph and the
respective statement of reasons previously to the Insurance Institute of
Portugal, which in the case of open pension funds with individual membership
informs the Securities Market Commission.
Article 30.
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-[...].
6-[...].
7-[...].
8-[...].
9-[...].
10-Where the application for prior permission for extinction is concerning
to an open pension fund with individual membership, the Institute of
Insurance from Portugal, before you decide, listen to the Market Committee of
Securities.
Article 42.
[...]
1-[...].
2-[...].
3-When the society gestures itself to the marketing of contracts
of individual adherence to open pension funds, the decision of
revocation is preceded by opinion of the Securities Market Commission
Securities.
216
Article 63.
[...]
1-In view of a better understanding, by the taxpayers, of the
characteristics of the fund, the financial risks inherent in the accession and the
applicable tax regime, the Securities Market Commission,
heard the Insurance Institute of Portugal, may require that beforehand
to the conclusion of the contract of individual membership, the relevant information
constant of the management regulation and the accession contract is
made available through an informative prospectus, the content of and
support are fixed by regulation.
2-[...].
3-[...].
4-To the information duties provided for in the preceding paragraph may
add, should they prove necessary to a better and effective
understanding of the characteristics of the fund and the contract of accession
celebrated, specific duties of information, to be fixed, as well as to
respective periodicity, by regulation of the Market Commission of
Securities, heard the Insurance Institute of Portugal.
Article 64.
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-The reports and accounts pertaining to open pension funds and the
gestural societies are made available to the public in a continuous manner and
by means that enables easy and free access to information, on the terms
to be defined by regulatory standard of the Insurance Institute of Portugal,
heard, in the case of open pension funds with individual membership, the
Commission of the Securities Market.
217
Article 65.
[...]
1-A advertising carried out by the managing entities is subject to the general law,
without prejudice to what is set in the regulatory standard of the Institute of
Insurance from Portugal and, in the case of open pension funds with membership
individual, in regulation of the Stock Market Commission
Securities, taking into consideration the protection of the interests of the
taxpayers, participants and beneficiaries.
2-[...].
3-[...].
Article 92.
[...]
1-[...].
2-The provisions of the preceding paragraph shall be without prejudice to the powers of supervision
assigned to the Securities Market Commission in matter
of marketing individual adhesion contracts to funds of
pensions.
3-[ Previous Article No 2 ].
4-[ Previous Article No 3 ].
5-[ Previous Article No 4 ].
6-[ Previous Article No 5 ].
7-[ Previous Article No 6 ]. "
Article 16.
Exemption from fees
They shall be exempt from any fees and emoluments all acts of registration which have
by object, exclusively, to adapt to the changes made by the present
decree-law and be carried out until November 1, 2007.
218
Article 17.
Transitional law
1-Who at the date of the entry into force of this decree-law shall be available
qualified pursuant to Art. 16 of the Securities Code that still
has not been disclosed to the market has two months to communicate to the
issuer the relevant information, and this shall disclose the information received in the
deadline provided for in Article 17 of that Code.
2-issuers with registered office in a State not belonging to the European Union
are exempted from submitting their annual report pursuant to Art. 245 before the
financial year that commencement in January 2009, provided that they present it in
compliance with the internationally accepted standards referred to in Article 9 of the
Regulation [EC) No 1606/2002.
3-The provisions of Article 246 shall not apply to issuers which, at the date of entry into
vigour of this diploma, have only admitted to trading on market
regulated securities representative of debt that enjoys warranty
unconditional and irrevocable from the state or its regional or local authorities.
4-The prospectors, whose identity has been communicated to the CMVM up to 1 of
November 2007, integrate the list of the linked agents.
5-Financial intermediaries shall report to the CMVM, until November 30 of
2007 a possible modification of the services provided, as of that date, by their
linked agents.
Article 18.
Revocation of the Securities Code
Articles 344 and 345 of the Code of Securities are repealed.
Article 19.
Entry into force
1-Without prejudice to the provisions of the following numbers, the present decree-law enters into
vigour on November 1, 2007.
2-The amendments to Articles 8, 16, 17, 23., 167, 244, 247, 249, 249, 249, 249, 249
219
250, 389, 390, 393 and 394 come into force on the day following that of the publication
of this decree-law.
3-The duties provided for in Articles 245 and 246 apply to the exercises initiated
on or after January 2007.
4-The issuers referred to in Article 246 (2) may, as of the date
provided for in paragraph 2, make use of the faculty provided there.
5-A point c) of Article 246 (5) shall apply only as of March 9, 2009.
6-The provisions relating to the supervision of insurance contracts connected to funds of
investment and open pension funds with individual membership come into
vigour as soon as the necessary regulations of the CMVM are adopted.
7-The provisions of paragraph 1 shall be without prejudice to the approval and publication, at a prior date, of the
regulations necessary for the implementation of the provisions of this decree-law.
Seen and approved in Council of Ministers of
The Prime Minister
The Minister of State and Finance
220
Annex II
Preliminary Decree-Law of Consulting Societies for Investment
The present decree-law partially transposes to the internal legal order the Directive
n. 2004 /39/CE of the European Parliament and of the Council of April 21, 2004 on
to the markets for financial instruments, amending Directives n. ºs 85 /611/CEE and
93 /6/CEE of the Council and the Directive No 2000 /12/CE of the European Parliament and of the
Council and repealing Council Directive No 93 /22/CEE by establishing the scheme
legal applicable to companies that have the exclusive object of the provision of the service of
consulting for investment in financial instruments and the reception and transmission
of orders on account of outrain concerning those.
The now-enshrined regime is without prejudice to the maintenance of a figure entirely
regulated by domestic law-the consultants for investment dedicated to consultancy
for investment in securities.
Considering that, on one side, consultancy for investment in instruments
financial, by virtue of the Directive on Markets in Financial Instruments,
becomes one of the financial intermediation activities that integrate the whole
of the main services and activities of investment, and of the other, which, only companies of
investment or duly authorized credit institutions may develop,
on a cross-border basis, such services and activities, it matters to ensure that the entities
who wish to exercise that activity meet the necessary requirements that
allow to qualify as investment firms and benefit from the nominee
community passport. It thus allows investment firms to operate at all
the space of the European Union on the basis of the authorisation granted to them by the State
Member in which its registered office is located.
In this framework, it is established as a new figure the " consulting society for
investment ", and is regulated, in an autonomous degree, the respective legal regime.
These societies may adopt the form of joint-stock company or society by
quotas. The circumstance of those interested in being able to opt for one of the listed
of radical societies in the fact that it is sought that the largest or the least complexity of the
business structure if it can reflect in the adopted societarium type.
In the regard of companies adopting the type of joint-stock company, it is emphasized that the
respective capital must be compulsorily represented by nominative actions, to
that you can easily determine who your shareholders are, having in view
221
control whether these meet the necessary conditions to ensure sound and prudent management
of these companies, in particular, the holders of qualified participation.
It is also to highlight that, as investment firms, the companies of
consultancy for investment become subject to a prior authorization regime, without the
which cannot carry out its activity. Such an authorative regime conforms to a
only act of registration, to be carried out with the Commission of the Securities Market,
to whom it is thus assigned competence to supervise such societies also under the
prudential point of view. The Directive provides for member states to recognize the
societies wishing to devote themselves to the provision of consultancy for investment in
financial instruments, the possibility of benefiting from a more flexible regime
in terms of prudential supervision. In the use of this prerogative, establish themselves
more lightweight prudential requirements that apply to the remaining companies of
investment, but, still, able to meet the needs of prudence, by
way to ensure the proper functioning of such companies.
It is also highlighted that, in order to ensure that the consulting activity for
investment is developed respecting the best existing canones in the matter,
it is required that the members of the governing bodies and the other persons who drive
effectively the activity are elderly people and professionally fit to
perform the respective functions.
Finally, it is stressed that attentive to the high technicity of some of the subjects
treated in this diploma, if you understand leaving to the Stock Market Committee
Securities the possibility of, by regulation, regular more developmentally
some aspects of the regime that it is establishing itself.
Thus:
In the use of the legislative authorization granted by the Law No. ___/2007, of ___ of ___ and in the
terms of the points a) and b) of Article 198 (1) of the Constitution, the Government decrees the
next:
Article 1.
Object and headquarters
1-Are consulting companies for investment by investment firms
222
exclusively authorised to engage in the consulting activities for
investment and reception and transmission of orders on account of scheduled outrain
in the points a) and f) of Article 290 (1) of the Securities Code.
2-A headquarters and the effective administration of the consulting company for investment
should be located in Portugal.
3-Investment consulting companies are governed by the constant standards
of this diploma and of the Securities Code.
Article 2.
Societarium type and administration
1-Investment advisory societies can adopt the type of society
anonymised or by companies by quotas.
2-The social capital of consulting society for investment that adopts the type of
anonymous society should be represented by nominative actions.
3-A The management or management of the consulting company for investment is
ensured, at the very least, by two elements, save by treating themselves from society
unipersonal by quotas.
Article 3.
Veiled operations
It is vetted to consulting companies for investment:
a) Detaining money or financial instruments of customers;
b) Grant credit in any form;
c) Provide personal or real guarantees in favour of third parties;
d) Acquire by your account any financial instruments and real estate,
save those necessary for the installation of their own activities.
Article 4.
Idoneity and professional experience
The members of the board of directors of consulting society for investment,
the people who actually drive their activity and the members of the organ of
223
supervision must be elderly and possess appropriate experience in the performance of the
respective functions.
Article 5.
Suitability of holders of qualified shareholdings
1-Those interested in detaining qualified participation in consulting society for
investment should bring together conditions that ensure the sound and prudent management of that
society.
2-For the purposes of this diploma, the concept of qualified participation is the one defined in the
General Regime of Credit Institutions and Financial Societies.
Article 6.
Patrimonial requirements
At the time of the constitution registration, the consulting company for investment
must satisfy at least one of the following patrimonial requirements:
a) An initial capital of € 50,000, held at the date of the company's constitution;
b) A professional liability insurance that covers the whole territory
of the European Union, or any other equivalent guarantee, that covers the
responsibilities resulting from professional negligence, which represents, in the
minimum, a coverage of € 1,000,000 per claim and, globally, €
1,500,000 for all claims that occur for one year;
c) A combination of initial capital and professional insurance of
civil liability in a form that results in a degree of protection
equivalent to the lecturer by any of the above.
Article 7.
Registration of constitution
1-A constitution of consultancy society for investment is subject to registration
in the CMVM.
2-The record referred to in the preceding paragraph is instructed on the basis of the required elements
by law for the authorization of investment companies, without prejudice to others that
224
by regulation of the CMVM are established.
3-Depend on prior consultation with the supervisory authority of the Member State of the Union
European, the granting of the registration concerning the consulting society for
investment that is:
a) A subsidiary of an authorized investment company in that member state, or
parent company affiliate of investment company under these conditions, or
dominated by the same natural or legal persons who dominate a
investment company authorized in that Member State;
b) Subsidiary of an authorized credit institution in that member state, or subsidiary
of parent company of credit institution in these conditions, or dominated by the
same natural or legal persons who dominate an institution of
authorised credit in that Member State;
c) Subsidiary of an authorized insurance company in that member state, or subsidiary of
parent company of insurance company in these conditions, or dominated by the
same natural or legal persons who dominate a company of
authorized insurance in that Member State.
4-For the purpose of consideration of the requirements set out in Articles 4 and 5, the CMVM
exchange information with the supervisory authorities referred to in the preceding paragraph.
5-The application for initial registration of activities referred to in Article 295 of the Code of
Securities is appreciated in concurrent with the application for registration of
constitution of consulting society for investment.
Article 8.
Concession and refusal of the registration of constitution
1-A The decision to grant the registration or its refusal is communicated to the applicant in the
term of sixty days counted from the date of receipt of the application or, if it is the case, of the
receipt of the information supplementary to that requested.
2-The registration is refused if the applicant does not meet the requirements set out in the
present diploma or in regulation, particularly when:
a) Inadequacies in the instruction of the application for registration are not sanctioned in the
deadline set by the CMVM;
b) The instruction of the sick request of inaccuracies or falsehoods;
c) The CMVM does not consider that it is shown to be meeting the
225
suitability requirements and professional experience set out in the articles
4. and 5.
d) The applicant does not dispose of the required patrimonial requirements;
e) The appropriate supervision of the consulting company for investment for
invitatiable by a close relationship between that and third parties;
f) The appropriate supervision of the consulting company for investment for
unviable by virtue of any legal or regulatory provisions of
third country to which is subject to any person with whom the society has
relationship of proximity or by difficulties inherent in the application of them.
Article 9.
Cancellation and expiry of the registration of constitution
1-A CMVM cancels the registration with the following fundamentals:
a) If it has been obtained by means of false statements or other expedients
ilocytes;
b) If you fail to check any of the requirements that depends on the granting of the
even, and the society does not regularize the situation in time that the CMVM
determine;
c) If it is exercised by the company activity not corresponding to the registered one;
d) If the society ceases activity or this is reduced to a level
negligible for period of more than 12 months;
e) If there are serious irregularities in the administration, organisation
accounting or internal supervision of the society;
f) If the society violates the standards that discipline its activity.
2-The cancellation of registration implies the dissolution and the liquidation of the society.
3-The registration lapses if the company expressly to him resign or if it does not start
activity within 12 months after its constitution.
Article 10.
Communication of qualified participations in consulting society for
investment
1-A person who, directly or indirectly, intends to acquire or divest participation
226
qualified in a consulting society for investment communicates in advance to the
CMVM your intention and the amount of the resulting participation.
2-The provisions of the preceding paragraph shall apply to cases in which it is intended to increase or
reduce the qualified participation that determined person already posits, in such a way
that the percentage of your voting rights or the capital that you detain reaches,
exceed or pass to be less than 10%, 20%, 33% or 50%, or where, on the other
cause, establish or basket a domain relationship with the gestures society.
3-Within the maximum period of 3 months from the date of the communication, if you consider that
it is not shown that the data subject fulfils the requirements set out in the n.
1 of Article 5, the CMVM is opposed to the acquisition or reinforcement.
4-When it does not deduct opposition, the CMVM may set a maximum term for the
realization of the intended operation.
5-If the person concerned is an investment company, credit institution, company of
insurance or entity managing body of collective investment in values
harmonized securities authorized in another member state, or person who dominates
any of these entities and if, as a result of the intended acquisition, the society of
consultancy for investment to become under your domain, the appreciation of
operation is subject to prior consultation with the state supervisory authority
member in question.
6-A acquisition or the reinforcement of qualified participation not communicated to the CMVM, or
to which this one objected, prevents the delinquent from, through the vote, exercising in society
superior influence than that it held prior to the acquisition or reinforcement of the
participation, being inhibited, to the extent necessary, the exercise of the rights of
voting inherent in its participation.
7-As soon as you are aware of any change to your shareholding
understood in paragraphs 1 and 2, the consulting society for communitys investment
such a fact to the CMVM.
Article 11.
Cross-border activity
To consultancy societies for investment seated in Portugal that wish to
to carry on business in another member state of the European Union, as well as
to those who based in State Member of the European Union wish to exercise their
227
activity in Portugal, apply, respectively, with the necessary adaptations, the
provisions set out in Articles 199-D and 199.-And of the General Regime of Institutions
of Credit and Financial Societies, approved by the Decree-Law No. 298/92, of 31 of
December, being that the notifications, communications and too much procedures that if
show demanded for the satisfaction of the applicants ' claim run their terms
together with the Securities Market Commission.
Article 12.
Regulation
The CMVM determines, by regulation:
a) The elements instructing the registration of constitution of society of
consulting for investment and the respective procedures;
b) The elements required for the assessment of the suitability requirements and of
professional experience set out in Articles 4 and 5;
c) The elements required for the assessment of the requirement of the capacity of the
holders of qualified shareholdings to develop sound management and
prudent of the consulting companies for investment in which they participate;
d) The requirements and procedures for the afferition of the professional qualification
of those who actually provide the consultancy service;
e) The subject matter of the guarantees that may be considered equivalent to the insurance
of professional civil liability.
Article 13.
Entry into force
The present decree-law shall come into force on November 1, 2007.
Seen and approved in Council of Ministers of
The Prime Minister
The Minister of State and Finance
228
Annex III
Preliminary Decree-Amendment Law to the legal regime of societies
gestures of markets and systems
Decorations about seven years on the process of transforming the managing entities
of markets and systems of mutualistic associations in public limited companies
lucrative, whose legal framework has been given to it by the Decree-Law No. 394/99, of 13
of October, it appears now necessary to carry out a review of this scheme in the sense
of matching it to the changes that, since the last revision introduced by the Decree-Law n.
8-D/2002, of January 15, occurred in the structures of management of markets and systems.
A part of these changes falls within the framework of the ongoing reform of the market of
capitals fruit of the transposition of Directive No 2004 /39/CE of the European Parliament and of the
Council, of April 21, 2004 on the markets for financial instruments,
but the present diploma project transcends to a broad extent this purpose,
seeking to reform the legal framework of the constitution and functioning of entities
gestures of markets and systems.
Since soon the scope of the diploma comes to extend to new societies
constituted for the exclusive management of multilateral trading systems, as well
as to the societies which, following the amendment to Article 268 of the Code of
Securities, they pass on to be able to autonomously pursue the management activity
of clearing house and the assumption of central counterparty responsibilities.
In what concerne the object of the managing entities of regulated markets, it came,
on the one side, to include in its scope the management of multilateral trading system and,
on the other hand, to exclude the possibility of accumulating the management activity of
settlement system, being the other purpose in this second amendment to segregation of
risk between both functions. Clarifies, ademals, the activities that, by title
accessory, can be conducted by the managing entities of regulated markets,
specifically the elaboration, distribution and marketing of information relating to
markets or financial instruments and the development, management and marketing of
equipment and computer programs. They have equipped themselves with the managing societies of
regulated market, from the point of view of the legal object, the managing companies of
multilateral trading systems.
Releva highlights the change in the scheme of the allowable shareholdings in the capital of the
managing entities of regulated markets, which cees to be based on the typification
229
of the legitimated entities to acquire shares of those entities to become the fundar
in a regime of control of the idoneity of who intends to acquire or divest a
qualified participation. Similar change in philosophy also occurs at the level
of the allowable holdings in the capital of other entities, which go on to be awounded
depending on the purpose underlying the detention of such participation-it is only authorized
the holding of shareholdings that have an investment character-, although if
keep bounded to the entities that pursue an object on the perimeter of the
managing entities of markets and systems.
It is the subject of renewed treatment of conflict of interest, which was once again
gated around an impediment to the accumulation of administration functions in
managing entity of markets and systems with the exercise of activity,
in particular, in an issuer of securities admitted to market under its
management and in financial intermediary, and henceforth becomes based on the afferition of the
suitability and professional experience of the holders of the social organs.
The articulation between the ministerial authorization process, which is maintained, is clarified
both for regulated markets and for their respective managing entities, and the
registration process with the CMVM of the latter. In what concerne the instruction and
registration procedures, the changes made result, on the one hand, of the
consolidation of the regime that was found to be dispersed in regulatory headquarters and, from another
side, of the consecration of flexibility solutions. In this framework was introduced
expressly, among the grounds for the refusal of the record, the verification of facts
likely to make the appropriate supervision impossible.
Particularly innovatory is the express prediction of a guarantee of continuity of the
regulated markets, for a transitional period, when from their extinction can
result in serious injury to the national economy or to issuers, members of
market or investors. The same spirit of providing the legal framework of entities
gestures of a complete regime, adapted to its specificities and insurance manifests itself
in the introduction of own standards aimed at regulating the thematic of good government and the
conflicts of interest.
Finally, it matters to emphasize the creation of a legal type vocationally specifically
for the management of clearing house and / or central counterparty, in this way if
recognizing the growing autonomy that these activities have been taking on
relatively to the management of markets and settlement systems.
230
Thus:
In the use of the legislative authorization granted by the Law No. ___/2007, of ___ of ___ and in the
terms of the points a) and b) of Article 198 (1) of the Constitution, the Government decrees the
next:
Title I
General provisions
Article 1.
Scope
1-The present decree-law regulates the legal regime of market managements companies
regulated, of the holding companies of multilateral trading systems, of the
countervailing chamber holding companies or acting as a counterparty
central of the settlement system management companies and the managing societies
of centralized securities system.
2-The companies referred to in the preceding paragraph shall also apply for the Code of
Securities.
Article 2.
Nature and legal regime of managing societies
The regulated market gestural societies, the system managing companies of
multilateral trading, the holding companies of clearinghouse or of
central counterparty, the settlement system societies and the societies
centralized securities system gestures are anonymous societies
Article 3.
Headquarters
The managing companies referred to in the preceding Article shall have registered and effective registered office
administration in Portugal
231
Title II
Regulated market gestures and system-managing societies
of multilateral trading
CHAPTER I
Characteristics and contract
Article 4.
Object and firm of regulated market managements
1-Regulated market holding companies must have as an object
principal the management of the markets referred to in Article 199 of the Code of Values
Securities, and may still carry out the following activities:
a) Management of multilateral trading systems referred to in Article 200 of the
Code of Securities;
b) Clearance of net positions;
c) Provision of other services relating to the issuance and trading of
securities that do not constitute intermediation activity
financial;
d) Provision to the members of the markets by you managed from the services that
revealing necessary to the intervention of these members in markets managed by
congenital entity of another state;
e) Elaboration, distribution and marketing of information relating to
markets for financial instruments or financial instruments
negotiated;
f) Development, management and marketing of equipment and programmes
computer as well as of telematic networks aimed at contracting and
transmission of orders or data.
2-A firm of the companies referred to in this article shall include the expression
"regulated market-holding company" or the abbreviation SGMR, which,
or others that with them confuse, cannot be used by other entities.
232
Article 5.
Object and firm of the managing societies of multilateral trading systems
1-The managing societies of multilateral trading systems must have as
major object to the management of multilateral trading systems to which the
Article 200 of the Securities Code, and may still exercise the
activities provided for in paragraph 1 of the preceding Article.
2-A firm of the companies referred to in this article shall include the expression
"society gestures of multilateral trading system" or the abbreviation
SGSNM, which, or others that with them confuse, cannot be used by
other entities.
Article 6.
Allowable holdings
1-The regulated market or trading system of trading system
multilateral may hold stakes:
a) that have an investment character; and
b) in the managing companies referred to in Article 2 or in the societies that
develop some of the activities referred to in Article 4 (1).
2-A participation of regulated market manager or system of
multilateral negotiation in society that imports the assumption of responsibility
unlimited or in an issuing company of shares admitted to trading or
selected for negotiation or in the multilateral trading systems by you
managed, depends on prior authorization from the Stock Market Commission
Securities [CMVM), granted upon demonstration of the existence of
appropriate mechanisms to compensate for the risk addition or to prevent conflicts of
interests, respectively.
Article 7.
Number of shareholders
The regulated market or trading system holding companies
multilateral constitute and remain with any number of shareholders, in the terms
233
of the law.
Article 8.
Social capital
1-The regulated market or trading system of trading system
multilateral should have social capital not less than that established by
Portaria of the Minister of Finance.
2-On the date of constitution of the society, the minimum amount of social capital shall
be fully subscribed and fulfilled.
3-The representative shares of the social capital of market managements
regulated or multilateral trading system should be nominative.
Article 9.
Qualifying participations
1-Who, directly or indirectly, intends to acquire qualified participation in a
regulated market or trading system of trading system
multilateral must communicate in advance to the CMVM its intention and the amount of the
resultant participation
2-Qualified participation is considered:
a) To which, directly or indirectly, represent percentage not less than 10%
of the capital or voting rights of the managing company, or
b) To which, for another reason, it enables a significant influence on the management of the
society gestures.
3-For the purposes of this decree-law, the voting rights of the participant shall be deemed to be
in the management of regulated market or trading system
multilateral those referred to in Article 20 (1) of the Securities Code,
with due adaptations.
4-The provisions of paragraph 1 shall apply to cases in which the percentage of the voting rights
or the percentage of the capital held reaches, exceeds or passes less than
any of the thresholds of 10%, 20%, 33% or 50%, or in which, for another reason, if
establish or cesse a domain relationship with the gestures society.
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Article 10.
Suitability requirements
1-Who intends to acquire or strengthen qualified stakes in the terms of the article
previous one should be elderly, in the terms to be appreciated by the CMVM.
2-For the purposes of the preceding paragraph shall apply, with the appropriate adaptations, paragraph 2 of the
article 103 of the General Regime of Credit Institutions and Financial Societies.
3-A CMVM may, by regulation, establish other standards appropriate to the
concretization of the circumstances deemed to be unlawfully unlawfully indictable,
in addition to those in the preceding paragraph.
Article 11.
Decision
1-Within the maximum period of 30 days counted from the communications referred to in Article 9,
the CMVM deduces opposition to the acquisition or reinforcement if it considers that it is not
demonstrated that the person concerned brings together the applicable requirements of suitability.
2-When it does not deduct opposition, the CMVM may set a maximum term for the
acquisition or reinforcement of participation.
3-If the person concerned is an investment company, a credit institution, a
insurance company or a managing company of an OICVM authorized in another
Member state, or person who dominates any of these entities and if, as a result
of the intended acquisition, if it establishes a domain relationship on society
gestures, the appreciation of that acquisition is subject to prior consultation of the authority
competent of the Member State concerned.
Article 12.
Subsequent communication
The management of regulated market or trading system
multilateral must report to the CMVM, within 15 days, the celebration of the acts
upon which the acquisition or increase in participation is realized
qualified subject to prior communication.
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Article 13.
Inhibition of voting rights
1-A acquisition or the reinforcement of qualified participation provided for in Article 9, no
communicated to the CMVM or to which the CMVM objected, prevents the delinquent of,
by voting, to exercise in the society influence higher than the one it held before
of the acquisition or reinforcement of the participation, being inhibited, as necessary,
the exercise of the voting rights inherent in its participation.
2-Failure to comply with the duty provided for in the preceding article determines the inhibition of the
voting rights, up to the achievement of the missing communication.
Article 14.
Special arrangements for the invalidity of deliberations
1-Where the CMVM or the governing body of the market management company
regulated or multilateral trading system has knowledge of
some situation of inhibition of exercise of voting rights, pursuant to the provisions of
in the previous article, he shall immediately communicate that fact to the president of the table
of the general meeting of the society, and this shall act in such a way as to prevent the
exercise of the inbred voting rights.
2-Are nullified the social deliberations taken on the basis of inbred votes, unless
if it proved that deliberation would have been adopted without those votes.
3-A cancellability of deliberation can be argued in the general terms or, still, by the
CMVM.
Article 15.
Disclosure of shareholdings
The governing body of the regulated market holding company or of
multilateral trading system should promote disclosure, in the bulletin of the market:
a) Of the communications to which he alludes Article 12;
b) Of the information on holdings held, decrease or cessation,
including the identity of the holders, in relation to the social capital
represented by shares with a right to vote, or to the total social capital, in
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amount equal to or greater than the shareholdings to which it allees Article 9 (3);
c) Until the fifth day prior to the achievement of the general meeting, of the list of
shareholders who are holders of representative shares of more than 2% of the
social capital represented by shares with the right to vote or the social capital
total.
CHAPTER II
Administration and surveillance
Article 16.
Requirements of the holders of the organs
1-The holders of the administration and supervisory boards of the managing society of
regulated market or multilateral trading system and the people who
actually drive them must be elderly and endowed with professional experience,
giving guarantees of sound and prudent management.
2-On the appreciation of the requirements of idoneity and professional experience are
applicable, with due adaptations, the n. the
2 a to 4 of Article 30 and Article 31 of the
General Regime of Credit Institutions and Financial Societies.
3-The gestural societies must establish in their code deontological rules
relating to the performance of duties and the holding of qualified participations by the
holders of their administration bodies in other entities, intended to prevent the
occurrence of conflicts of interest.
Article 17.
Lack of requirements of the holders of the organs
If in relation to any holder of the administration or supervisory bodies if
leave to check, in fact supervenient or not known to the CMVM at the date of the
their respective registration, the suitability requirement, the CMVM must notify the society
regulated market manager or multilateral trading system for, of
prompt, terminate the functions of the persons concerned and, within the time limit,
promote the respective replacement.
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Article 18.
Administration
1-The governing body of the regulated market holding company or of
multilateral trading system has plural composition
2-Compete, inter alia, to the governing body of the managing company of
regulated market or multilateral trading system, in the terms of the
applicable legal and regulatory standards and in relation to markets or systems
managed by the society:
a) To approve the rules concerning the general organization of markets or systems and the
admission, suspension and exclusion of the members of those markets or systems;
b) Approve the rules on admission or selection for negotiation, suspension
and exclusion of financial instruments in the markets or systems;
c) Approve the rules that set quantitative limits on the positions that each
investor or member of the market, per se or in association with others, may
take over in operations on the financial instruments referred to in points
d) and e) of Article 2 (1) of the Code of Securities;
d) Approve the rules on the disciplinary procedure in accordance with
the Article 32, safeguarded the confidentiality of the process and the guarantees of
defense of the accused;
e) Deliberating on the admission of the members of the markets or systems of
multilateral trading or, when they cease to check the requirements of their
admission or by virtue of disciplinary sanction, on suspension and exclusion
of those members;
f) Exercising the disciplinary power;
g) Admit to trading or selecting for trading, as well as suspending and
exclude from trading financial instruments;
h) Require issuers of securities admitted to trading and to the
members of the markets or systems the information necessary for the financial year
of your competences, even if the requested information is met
subject to professional secrecy;
i) Scrutinise the implementation of the operations, the behaviour of the members of the
markets or systems and the fulfilment of information duties;
j) Promoting cooperation with partner entities of national markets and
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foreigners.
3-The governing body shall also compete to adopt any required measures
for the proper functioning of the markets or to prevent the practice of any acts
fraudulent and others likely to disrupt the regularity of their functioning,
particularly:
a) Interrupt the negotiation;
b) Suspend the carrying out of operations;
c) Delete offers from the trading system or cancel business;
d) Exclude operations as an element for the calculation of the reference price,
where applicable.
4-The measures adopted in the terms of the preceding paragraph and the respective justification
must be immediately communicated to the CMVM, which may determine its
revocation, if it considers them inappropriate or uneven the justification presented.
CHAPTER III
Authorization
Article 19.
Authorization
The constitution of regulated market-holding companies, albeit by
alteration of the existing social object of society already existing or by division, and the constitution of the
regulated markets by it managed depend on authorisation, to be granted by the
Minister of Finance, with the prior opinion of the CMVM.
Article 20.
Statement of the order
1-The application for permission is instructed with the following elements:
a) Project of the contract of society;
b) Organic structure and human means, technicians and materials that will be used;
c) Structure of the markets that the society intends to manage;
d) A proven study of the economic and financial viability of society to
constitute;
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e) Identification of the founding shareholders, with specification of the amount of
capital to be subscribing by each;
f) Identification of the entities holder of any shareholdings in
society, with specification of the respective percentage of the social capital and of the
percentage of voting rights, pursuant to Article 20 of the Code of
Securities;
g) Declaration of commitment that in the act of the constitution, and as a condition
of it, you will find yourself deposited in a credit institution the amount of the
social capital.
2-A CMVM, on its own initiative or at the request of the Minister of Finance, may
ask the applicants for additional elements and information and carry out the
enquiries that you consider necessary.
Article 21.
Decision
1-A The decision is notified to those concerned within two months counted from the
receipt of the application, the opinion of the CMVM shall be issued within one month
counted from the date of your request.
2-Should elements or supplementary information be requested, the date of
receipt of the same constitutes the initial term of the deadlines set out in the number
previous, which may not exceed, respectively, six and five months.
3-In the lack of a decision in the deadlines set out in the preceding figures presumed
undismissed the pretension.
Article 22.
Refusal
The authorization is refused whenever:
a) The application for permission shall not find instructed, within the time limits
applicable, with the elements referred to in Article 20 (1) or, in the same
deadlines, the elements and supplementary information are not delivered
requested;
b) The instruction of the sick request of inaccuracies or falsehoods;
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c) The Society to constitute not to observe the standards that are applicable to it;
d) The Society to constitute non-expenditability of human, technical and material means
or of the appropriate financial resources for the pursuit of its object
social;
e) No authorisation to be granted for constitution of the regulated market
whose management the society to constitute is proposing to ensure.
Article 23.
Caducity
The authorisation shall lapse:
a) If the applicants to it renounce expressly;
b) If the corporation is not constituted within 6 months of its authorisation
or do not start activity within 12 months after your authorisation;
c) If the society is dissolved;
d) If the regulated market that proposes to manage does not start activity in the
deadline of 12 months after the authorization of the society.
Article 24.
Abrogation standard
1-The Minister of Finance may revoke the authorisation in any of the following
situations:
a) Have been obtained by false statements or other unlawful means;
b) Do not correspond the activity to the authorized social object;
c) If the society ceases the exercise of the activity;
d) Leave to check the adequacy of the economic and financial situation of the
Society with a view to ensuring the provisions of Article 32, specifically in
virtue of non-regularization of some of the situations provided for in paragraphs 2 and 3
of Article 40 within the period that is fixed by the CMVM;
e) Leave to check any of the requirements that depend on the granting of the
respective authorization;
f) Serious flawing occurs in the activity of the society, specifically in the
administration, in the audit, in the accounting organization or in the systems
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of internal control;
g) Failure to comply with the standards, legal and regulatory, which are applicable to you
or not accrunting determinations of the competent authorities;
h) The Society does not adopt the measures referred to in Article 29 (6);
i) Extinction of the regulated market managed by the society.
2-A The revocation of the authorisation implies dissolution and liquidation of the managing company of
regulated market.
3-The Minister of Finance sets out, in the act of revocation, the management regime
provisional of the Society, and may, in particular, appoint a majority of the members
of the organs of administration and surveillance of the society and determine the adoption of
any measures that ensure the defence of the market.
4-Havendo appeal of the revocation decision, it is presumed that the suspension of execution
determines serious injury of the public interest.
Article 25.
Domain participations
1-The provisions of this Chapter shall be still applicable, with due adaptations, to
who wishes to attain or surpass, pursuant to the provisions of Article 20 of the
Securities code, participation of 50% of voting rights
corresponding to the social capital of regulated market manager and
yet to whom, in respect of this, may exert a dominant influence, in the
terms of Article 21 of the same diploma.
2-The process of authorisation must at least be instructed with the elements
proving that they are meeting the legal requirements of the quality of shareholder
and with those referred to in points a) and f) of Article 20 para.
3-It is additional grounds for refusal of permission to the Minister of Finance not
consider demonstrating that the applicant meets the provisions of Article 103 of the
General Regime of Credit Institutions and Financial Societies, with due
adaptations.
4-It is specific grounds of expiry that the deliberations to be taken or other acts
practising following the authorisation do not take place within 6 months, or the
your execution does not take place within 12 months after the grant of
authorization.
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5-The acquisition of participation pursuant to paragraph 1, without prior authorization, applies to
provisions of Article 13 (2), until the respective authorisation is obtained or until
that it is reduced to participation.
6-The same scheme applies to those who find themselves involuntarily in the situations
provided for in paragraph 1.
Chapter IV
Registration
Article 26.
Subjection to registration
1-The regulated market gestural societies, the managing companies of
multilateral trading system, the holders of their social bodies, the people
that actually drive the activity and other persons that by regulation of the
CMVM to find themselves subject to registration, they cannot start their activity while
are not found to be registered in the CMVM.
2-A The authorization provided for in Article 217 of the Securities Code and the registration
of regulated markets and multilateral trading systems will only be
granted to their respective managing companies after the registration of these.
3-A CMVM, through regulation, defines the terms and content to which it obeys the
register of the managing companies provided for in paragraph 1.
Article 27.
Contents of the Registry
1-From the register of regulated market management companies and societies
gestures of multilateral trading system appear, inter alia, the
following updated elements:
a) Contract of society;
b) Identification of the holders of the social bodies, of the persons driving
effectively the society and the people who, by regulation of the CMVM, if
find them subject to registration;
c) Identification of persons holding holders of the qualified and amount shareholdings
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of the respective holdings.
2-The application for the registration of regulated market holding companies or
multilateral trading system should be instructed with the documents
necessary for the proof of the facts to be recorded, specifically:
a) The identification of the markets or systems managed by society, including
a programme of operations, specifying in particular the types of
projected commercial activity and the organisational structure;
b) The description of the human, technical and material means of which the society
has affections for the management of each market or system;
c) Feasibility study and the business plan, as well as the demonstration that
the gestures society has conditions to respect the prudential requirements;
3-In the case of regulated market management companies the application for registration
shall still be instructed with the permission provided for in Article 217 of the Code of
Securities and copy of the documents that instructed the proceedings.
4-Are averaged to record the changes to the elements subject to the same, the sanctions
of a criminal, counter-ordinance or applied disciplinary nature.
Article 28.
Deadline
1-The deadline to apply for registration is 15 days counted from the date on which the facts to
record have occurred.
2-The registration of the holders of the bodies of the regulated market management company
or of multilateral trading system may be requested before the respective
designation, and this shall be communicated immediately to the CMVM.
3-The deadline for consideration of the application for registration is 30 days counted from the date of
presentation of the respective application or the provision of clarifications or
complimentary information requested by the CMVM.
4-The registration is deemed to be refused if the CMVM does not make it within the period specified in the
previous number.
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Article 29.
Refusal and cancellation
1-A CMVM refuses the registration of the managing companies or the facts to be registered when the
application or its assumptions are non-compliant to the legal standards or
regulatory, particularly when:
a) The fact to be recorded is void;
b) It is manifest that the fact is not titled in the documents
presented;
c) The elements and the supplementary information are not delivered
requested;
d) The instruction of the sick request of inaccuracies or falsehoods;
e) Do not be proven or fail idoneity to holders of shareholdings
qualified;
f) Do not be proven or lacked idoneity or professional experience to the
holders of the administration bodies and the persons who actually drive
the society;
g) The Society does not have any human, technical and material means or
financial resources suitable for the pursuit of their social object;
h) The appropriate supervision of the managing society is made impossible by a
proximity relationship between this and other people;
i) Proper supervision of the gestures society is made impossible by the
legal or regulatory provisions of a third country to which it is subject
any of the persons with whom the gestures society has a relationship of
proximity or by difficulties inherent in the application of such provisions.
2-Constituting grounds for cancellation of the registration of the managing companies or the
recorded facts:
a) The verification of any previous or subsequent circumstance to the Registry that
obstaria to which this was carried out and which has not been sanctioned at the time
fixed by the CMVM;
b) Their obtaining by false statements or other illicit expedients;
c) The supervenient verification or knowledge of the lack of idoneity of
holders of qualified shareholdings, if the application of the inhibitions
correspondents cannot guarantee a sound and prudent management of the society;
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d) The supervenient verification or knowledge of lack of experience and
suitability of the holders of the administration bodies or persons who
actually drive the society, unless your replacement is promoted
on the deadline designated by the CMVM;
e) Do not commenced the activity of the market or system that is proposed on the deadline
of 12 months after your registration;
f) The non-occurrence of significant market activity or system during 6
consecutive months;
g) The revocation of the authorisation provided for in Article 217 of the Code of Values
Securities;
h) The violation, in a serious and repeated manner, of the applicable provisions;
i) The dissolution of the gestory society.
3-Cancellation of the market register or system imports the cancellation of the
register of the managing company, in the case of this not managing other markets or systems.
4-For the purposes of the provisions of the d) of paragraph 2, the market gestures of market
regulated or multilateral trading system are obliged to
communicate to the CMVM the facts provided for in Article 17, as soon as they take
knowledge and take the appropriate steps for such people to cease
immediately functions.
5-A The refusal or cancellation of the registration referred to in the preceding paragraph shall not determine the
invalidity of the acts carried out by the person concerned in the performance of his duties.
6-In the act of cancellation, the CMVM sets out the measures that are necessary
for the defence of the interests of investors, issuers and members of the
market or systems.
Article 30.
Continuity of regulated markets
When the cancellation of the registration of the managing company involves serious injury to the
national economy or, inter alia, for issuers of securities
admitted to trading, to market members and to investors, can the
Minister of Finance, listen to the CMVM, adopt the appropriate measures to be ensured,
during the required timeframe, the continuity of the markets until the dissolution of the society.
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CHAPTER V
Vicissitudes societaries
Article 31.
Amendment to the contract of society
1-A merger, spinoff, dissolution and reduction of the social capital of the managing society
depend on non-opposition of the CMVM, communicated within 15 days.
2-Caring out prior communication to the CMVM the following changes to the contract of
society:
a) Social object;
b) Firm;
c) Headquarters of the Society;
d) Creation of new categories of shares or changes to existing categories;
e) Limitations of counting of votes and other related matters;
f) Structure of administration or surveillance;
g) Limitation of the powers of the administration or supervisory bodies.
CHAPTER VI
Rules of conduct
Article 32.
Good management and good government
1-The regulated market or trading system of trading system
multilateral should ensure the maintenance of high quality standards and
efficiency in the management of the markets at your post, as well as in the provision of others
services.
2-gesturing societies must implement mechanisms designed to ensure a
sound management of the technical operations of the respective systems, including the
establishment of effective emergency measures to address the risks of
disturbance of the systems.
3-Moving societies must establish and disseminate mechanisms of good government,
that allow an appropriate hearing of market members or system and of the
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issuers in the decision-making process that concern them.
4-The managing companies shall annually disclose a report on the structure and
the practices of societarium government.
5-A CMVM shall, by means of regulation, define the content, form and time of
disclosure of the report referred to in the preceding paragraph
Article 33.
Conflict of interest
1-The regulated market or trading system of trading system
multilateral shall adopt the appropriate internal organization measures to:
a) To identify, prevent and prevent the occurrence of conflict of interest between the
requirement of the proper functioning of the markets or systems by themselves managed and the
interests of the managing company, holders of qualified shareholdings, of the
governing bodies of the society or of the people who actually the
drive, and
b) Managing the possible adverse consequences, arising from conflicts of
interests, for the operation of markets or systems by you managed or
for its members, in the impossibility of preventing the aforementioned conflicts.
2-The managing companies referred to in the preceding paragraph shall deal in a loyal manner and
equitable its shareholders, members of the market or system and issuers
of securities.
Article 34.
Self-admission
1-A The regulated market manager should adopt procedures
appropriate to prevent the occurrence of conflicts of interest in the event of a self-
admission of securities.
2-It is considered self-admission to admission to the trading of securities
issued by the regulated market management company, or by one of the
societies with which to find themselves in a domain or group relationship, in the markets
by you managed.
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Article 35.
Defence of the market
1-A The regulated market or trading system of trading system
multilateral should act with the highest commercial probity, not allowing the practice
of acts which are likely to endanger the regularity of operation to
transparency and the credibility of the market.
2-Are, inter alia, likely to put the regularity of operation at risk,
transparency and the credibility of the market the acts provided for in Article 311 of the
Code of Securities.
3-A The regulated market or trading system of trading system
multilateral should immediately communicate to the CMVM the verification of conditions
abnormality of trading or ducts likely to endanger the regularity
of operation, transparency and credibility of the market or system,
providing all relevant information for the respective research, and well,
so the relevant defaults of rules concerning the operation of the
same.
Article 36.
Deontological code
1-The regulated market or trading system of trading system
multilateral must approve a deontological code to which they become subject:
a) The holders of their organs;
b) Their workers;
c) The members of the markets by you managed;
d) Any entities that intervene in the markets managed by the society
regulated market manager or multilateral trading system
or to have access to the facilities of these markets managed by the society,
as to the duties related to such intervention or access.
2-The deontological code shall regulate, specifically:
a) The defence measures of the market;
b) The terms in which the persons to be subject to it may transacte instruments
financial traded on a market by you managed;
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c) The rules on the exercise of duties and holding of shareholdings
qualified by the holders of their administration bodies in other
entities, intended to prevent the occurrence of conflicts of interest;
d) The standards of diligence and professional aptitude that must be observed in
all activities of the society;
e) Appropriate penalties for the seriousness of the disciplinary offence, and may provide for,
among others, the warning penalties, of suspension up to six months or of
deletion.
3-The standards that have by recipients the holders of the organs and the employees of the
society and the members of markets by you managed should establish levels
high requirement.
4-The deontological code and respective amendments shall be communicated to the CMVM.
Article 37.
Professional secret
1-A The regulated market or trading system of trading system
multilateral, the holders of their organs, their employees and the people who
prestem, on a permanent or occasional basis, any services are subject to
professional secret as to all the facts and elements whose knowledge
adheres to the exercise of their duties or the provision of their services.
2-The duty of secrecy does not cease with the term of the duties or the service.
3-The facts and elements covered by the duty of secrecy can only be revealed in the
terms set out in the law, specifically to the CMVM.
Article 38.
Disciplinary power and reporting duties
1-Are subject to the disciplinary power of the regulated market managing company
or multilateral trading system, in the terms provided for in the code
deontological, the persons referred to in points b) , c) and first part of the d) of paragraph 1
of Article 36 para.
2-Constitutes disciplinary offence for the violation of the duties to which the persons are subject
referred to in the preceding paragraph, provided for in law, in regulation or in the code
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deontological.
3-The disciplinary applied sanctions are communicated to the CMVM.
4-If the offence sets up equally counter-ordinance or public crime, the organ of
administration of the society shall communicate it immediately to the CMVM.
Article 39.
Principles of exercise of disciplinary power
The regulated market or trading system holding companies
multilateral shall exercise the disciplinary power in accordance with principles of justice and of
equity, ensuring the exercise of the adversarial and the rationale of the respective
decisions.
CHAPTER VII
Prudential rules
Article 40.
Prudential and organizational rules
1-A The economic and financial situation of market-managing companies
regulated or multilateral trading system must guarantee
permanently the provisions of Article 33 para.
2-A gestures society must.
a) Be endowed with the means necessary to manage the risks to which it is exposed,
b) Implement appropriate mechanisms and systems to identify all risks
significant for their functioning, namely the risk of loss of
data in the event of operational problems; and
c) Institute effective measures, including contingency and follow-on plans,
to mitigate these risks.
3-A fraction of not less than 10% of the net profits ascertained in each financial year
by regulated market holding companies or trading system
multilateral should be earmarked for the constitution of legal reserve up to the cap of the capital
social.
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4-For the purposes of paragraph 1, the CMVM may, by regulation, lay down the rules that if
revealing necessary, specifically, in the concerning:
a) The suitability requirements of applicable own funds, on an individual basis
or consolidated, as well as the respective rules of calculation and the regime of
prudential supervision;
b) To the limits and forms of covering alheios resources and any other
responsibilities to third parties;
c) To the minimum limits of constitution of provisions for risks arising from the
activity;
d) To the limits on the relationship between the holdings held and the funds
own
e) To the definition of the content of the accounting plans.
5-If any of the duties referred to in the preceding paragraphs are infringed, the CMVM may
set reasonable time for regularization of the situation.
Article 41.
Acquisition of real estate
The management of regulated market or trading system
multilateral can only acquire the real estate that prove indispensable to its installation
and functioning.
Title III
Holding companies of clearing house or acting as a counterparty
central
Article 42.
Firm and legal regime
1-The gestural societies referred to in the c) of paragraph 2 and (2) c) of the Article 3 (3)
268. of the Securities Code must use in your firm, depending on the
social object to which they are biding, the denomination " chamber managing company of
compensation with central counterparty assumption "," chamber gestures society
of compensation "or" central counterparty ".
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2-The names referred to in the preceding paragraph may be substituted by the
corresponding abbreviations: SGCCCC, SGCC, CC.
3-Without prejudice to the provisions of this Title, to the companies referred to in the article
previous shall apply, with due adaptations, Title II of this decree-law.
Article 43.
Authorization
The exercise of clearing house functions and central counterparty relatively to
transactions on the financial instruments referred to in subparagraphs ii) and iii) of the paragraph
d) and a in the paragraph e) of Article 2 (1) of the Securities Code is subject to
prior authorization by joint porterie of the Minister of Finance and the Minister of the
sector to which they respect the underlying assets, listened to the CMVM.
Article 44.
Regulation
It is up to the CMVM to regulate, inter alia, the following subjects:
a) Activity of clearing house and central counterparty;
b) Technical, human and material means and risk management techniques required
for the granting of registration to the holding companies of clearing house
or that act as a central counterparty;
c) Prudential rules relating to the control of financial risk.
Title IV
Settlement system and centralized system management companies
securities
Article 45.
Subject
1-Can be constituted companies that have the object of the exercise, isolated or
set, from the management of:
a) System of settlement of securities;
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b) Centralized securities system.
2-The companies referred to in the preceding paragraph shall not be able to provide management services
of securities markets.
Article 46.
Legal regime
1-The managing companies mentioned in the previous article shall apply, with due
adaptations, the provisions of Title II.
2-The disclosures provided for in Article 15 shall be carried out on the website of the
respective gestures society.
Article 47.
Firm
1-The managing companies provided for in this Title shall use in their firm, depending on the
social object that is bidder to proceed, the denomination " society gestures of
settlement system "," society manager of centralized system of values
securities "or" company and system management system of settlement and system
centralized of securities ".
2-The names referred to in the preceding paragraph may be substituted by the
corresponding abbreviations: SGSL, SGSCVM, and SGSLSCVM.
Article 48.
Segregation patrimonial
Liquidation system management companies can only use the instruments
third-party financials in the terms and for the purposes for which they are mandated.
Title V
Final and transitional provisions
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Article 49.
Illicit from mere social ordering
To the violation of the duties enshrined in this diploma and the respective procedure applies the
provisions of the Securities Code for the illicit of mere social ordering.
Article 50.
Transitional law
1-The managing companies constituted and registered in the CMVM at the date of the publication of the
present decree-law shall proceed to the adaptation of the respective statutes and models of
internal organisation up to the date of the entry into force of the same, so as to give
host to the amendments by this introduced.
2-Stay exempt from any fees and emoluments all notarial and registration acts
which have the object of the adaptation to the changes made by the
present decree-law and are carried out within the time specified in the preceding article.
Article 51.
Abrogation standard
The Decree-Law No. 394/99 of October 13 is repealed.
Article 52.
Entry into force
1-The present decree-law shall come into force on November 1, 2007.
2-The provisions of the preceding paragraph shall be without prejudice to the approval and publication, on date
prior, of the regulations necessary for the implementation of the provisions of this decree-law.
Seen and approved in Council of Ministers of
The Prime Minister
The Minister of State and Finance
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Annex IV
Ante-project of the Decree-Law on investment in tangible goods
The public marketing of trade schemes intended for investment in goods
tangible-such as stamps, precious stones, works of art and antiques-shows,
among us, deficiently regulated. The offer of these services is not subject to the
supervision of none of the regulatory authorities of the financial markets,
circumstance that leads to investors in this type of investment contracts
have a level of protection that is not the appropriate face to the nature and risks that
these products usually behave. The present Decree-law thus aims to close
an absence of normative intervention, introducing a set of measures
designed to strengthen the quality of information on these products-even when
entered in message of advertising content-, clarifying and ensuring suitability
of the contractual relationship between the parties and establishing proportional patterns of
supervision and sanctionatory regime.
Because the subjects in which the exercise of the supervision of these products is to be concentrated
and of the respective marketer entities have as the main determinant risks
of a behavioral nature, to better ensure its effectiveness and efficiency, it assigns
this competence to the CMVM given its experience in this type of supervision. Predicts
that we are in the face of this type of contracts where supply or marketing is
of the same implies the receipt of funds from the public for the investment, per account
of customers, in those goods or in rights on them, aiming for their profitability or
valorisation and subsequent delivery to the participant of part or all of the same.
In the protection of investors, the present diploma discipline the range of
operations and mentions vindicated in the pursuit of investment policy, the requirements
pre- and post-contractual and additionally the rules to which the entities that the
make available stay linked as to the safety and segregation of the owned goods
to customers. It is also circumscribing this activity only to public limited companies,
who are required to have organized accounting and subject financial statements
the legal certification of accounts. Too much, obligate the entities that exercise this
supervisory function to communicate to the CMVM related facts, morally, with the
detection of irregularities or which may be likely to affect the continuity of the
exercise of the activity by the entities marketing tangible goods.
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It is also expected that the CMVM will disclose a list of the entities that exercise this
activity, imping, for the purpose, notification duties to the CMVM in advance to the
beginning of activity and still duties of later information, to be laid down in Regulation,
relating to the activity developed by these entities.
Thus:
In the use of the legislative authorization granted by the Law No. ___/2007, of ___ of ___ and in the
terms of the points a) and b) of Article 198 (1) of the Constitution, the Government decrees the
next:
Article 1.
Scope of application
1-The present decree-law establishes discipline the marketing, directed
specifically to persons with a residence or establishment in Portugal, of goods
or services allocated to investment in tangible goods.
2-It is considered marketing of goods or services allocated to investment in goods
tangible, the public offering of goods or services, regardless of modality
contractual used, within the scope of which the supplier:
a) Receives from the consumer any amount in consideration or with a view to the
acquisition, on account of these, of tangible goods or of rights on them; and
b) Assumes the obligation to conclude any other business relating to the goods
tangible or vested rights, with a view to full restitution or
partial, at one time or in installments, of the price paid or their profitability
or valuation.
3-The tangible goods to which the previous figures are referred to are any goods
furniture or real estate, namely stamps, works of art and antiques.
4-Only commercial companies constituted according to the type of joint-stock company
may market goods or services allocated to investment in tangible goods.
5-For the purposes of this decree-law, it is understood by:
a) Consumer: any person who acts with purposes that do not belong to the
scope of its professional activity;
b) Supplier: the commercial companies constituted according to the type of society
anonymous that marketing goods or services allocated to investment in goods
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corposrees.
6-Real estate investment funds, special investment bodies and the
corporate-managing societies are governed by special legislation.
Article 2.
Operations and vetting mentions
Whoever exercises the activity referred to in the preceding article shall not:
a) Carry out any activities or operations reserved to the institutions of
credit, financial companies, investment firms, bodies of
collective investment, insurance and reinsurance companies or any
other entities registered with the Bank of Portugal, of the Commission of the
Securities Market or the Insurance Institute of Portugal;
b) Include in your denomination, in the designation of goods or services
marketed, in the advertising of their activities or in any other
information that would pay the public or its customers any reference to
financial activity or collective investment or any other susceptible
of causing confusion with the activities reserved for the entities referred to in the
previous or with financial instruments.
Article 3.
Prior information
Prior to the conclusion of any contract relating to the marketing of goods or services
affections for investment in tangible goods, the consumer shall be informed, by
written, about:
a) Identification of the supplier of the goods or services and of their capacity for the
provide;
b) Nature, characteristics, risks, costs and other charges underlying the goods
or proposed services;
c) Systems for the valorisation of marketed goods and forms of access to
same;
d) Commercial objectives of the supplier of the goods or services;
e) Rules relating to the safety and segregation of the customer's goods and, being that
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the case, on the nominal value of such goods;
f) Guaranteed minimum value and guarantees of performance of the obligations assumed
by the supplier;
g) The law applicable to the contract;
h) Rules and procedures used relating to complaints;
i) Non-coverage by investor-compensation systems;
j) Existence, conditions and modalities of exercise of the right of resolution of the
contract, indicating the name and address, geographical or electronic, of the person
before which the right can be exercised.
Article 4.
Form and content of the contract
1-The contracts concluded with consumers in the exercise of regulated activity
in this decree-law must, under penalty of nullity, be reduced to written and contain
the all the elements referred to in Article 3.
2-The enunciation of the contract shall be drawn up in an explicit and clear manner.
3-The consumer shall datar and sign the document referred to in paragraph 1, being
also mandatory the delivery to the consumer of a copy of the contract
duly signed by the supplier.
4-A The nullity provided for in paragraph 1 is invoked at all time, but only by the
consumer.
Article 5.
Right of resolution
1-The consumer can settle the contract within 14 days counted from the date
of your signature, with no need to indicate the reason and without that there may be
place for any compensation or penalty of the consumer.
2-The time limits provided for in the preceding paragraph may be extended by agreement between the
parts.
3-They have for unwritten the clauses establishing the waiver of the intended right
in the preceding paragraphs, as well as those stipulating compensation or
penalization of any kind in case of exercise of that right.
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4-To safeguard the right of resolution provided for in the preceding paragraphs, up to the
end of deadline set for the increased effect of three days, suppliers do not
may receive any amounts directly or indirectly related to the
acquisition of the goods or services contracted.
5-A free resolution shall be notified to the supplier by means capable of proof and
in accordance with the terms of the contract and with the information provided for in Article 3.
6-A notification made on paper support or other durable medium available and
accessible to the recipient considers to be thematically made if it is sent to
the last day of the deadline, inclusive.
7-The exercise of the right of resolution extinguishes the obligations and rights arising from the
contract, with effect from its signature by the consumer.
8-The consumer shall refund to the supplier any amounts or goods of it
received within 30 days counted from the dispatch of the notification of the resolution.
9-Whenever the price of the good or contracted service is fully or partially covered
by a credit granted by the supplier or by third party on the basis of an agreement
entered into between this and the supplier, the credit contract is automatic and
simultaneously had by settled, without right to compensation, if the consumer
exercise your right of resolution in accordance with the previous figures.
Article 6.
Segregation
1-In the exercise of the activity referred to in this Decree-law, the supplier shall
adopt the rules laid down in this Article, as well as others to be bound by
contractually with your customers regarding the security and segregation of the goods
that belong to them.
2-In all acts that practise, as well as in the respective accounting records,
the supplier shall ensure a clear distinction between the goods belonging to his / her
heritage and the assets belonging to the heritage of each of its customers.
3-A The opening of insolvency or business recovery process has no effect
on the acts practiced by the supplier on account of its customers.
4-The supplier may not, in his interest or in the interest of third parties, dispose of the goods
or rights belonging to its customers, unless written agreement of the same.
5-The money received from consumers or in their favour must be deposited into account
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open banking on behalf of the beneficiary.
Article 7.
Reporting documents
1-The supplier's account documents shall be the subject of
legal certification of accounts, by auditor registered in the CMVM.
2-The supplier shall subject to the surveillance regime mentioned in the paragraph b) from the
n Article 413 (1) or in paragraphs 1 b) and c) of Article 278 (1) of the Code of
Commercial Societies.
3-Who exercises the supervisory functions provided for in the preceding paragraph shall
report immediately to the CMVM the facts relating to the entity concerned
have knowledge in the exercise of their duties, when such facts are
susceptible to:
a) Constitute infringement of any legal or regulatory standard that discipline a
activity referred to in this diploma;
b) Affect the continuity of the exercise of the activity of the entity concerned;
c) Justify the refusal of the certification of the accounts or the issuance of reserves.
4-The duty of communication imposed by the preceding paragraph prevails on any
restrictions on the disclosure of information, legal or contractually foreseen, and its
compliance in good faith does not involve any liability for the respective
subjects.
5-A CMVM may establish, by means of regulation, communication duties and
disclosure achievable to the accountability documents and legal certification of
accounts to the office of the supplier.
Article 8.
Notifications
1-Whoever intends to develop the activity referred to in this decree-law shall
notify the CMVM of this intention, with at least fifteen days in advance
in relation to the start date of the activity.
2-A notification referred to in the preceding paragraph shall contain the established elements
through regulation of the CMVM.
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3-It shall also be notified to the CMVM any changes to the items subject to
prior notification, including the cessation of activity.
Article 9.
Reporting duties before the CMVM
The supplier communicates to the CMVM, with the periodicity and on the terms that by this
established through regulation, the number of its customers and the amount of its
responsibilities in the face of them in the context of the mentioned activity.
Article 10.
Disclosure
The CMVM disseminates, through its information diffusion system, the list of the
entities that proceed to the notifications referred to in Article 8, as well as others
elements established through regulation.
Article 11.
Powers of the CMVM
In relation to suppliers, the CMVM:
a) It must pass regulatory standards that prove indispensable to the
appropriate exercise of the activity in question, and may in that scope
requirements in terms of organisational structure, minimum social capital and
suitability of holders of qualified participations and members of the
social bodies that are proportional to the risks involved in the
corresponding activity;
b) You can order them to disclose additional information about the contract,
particularly about the respective specific risks, or which suspend
temporarily or permanently cease the contract, in the conditions that
establish, when so requires the tutelage of the legitimate interests or rights
of consumers or the public at large;
c) It may prohibit or suspend the marketing of goods or services allocated to the
investment in tangible goods, when the rules set out in this diploma
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and supplementary legislation are not met;
d) Must exercise all the remaining powers conferred upon it by the respective
Statute, approved by the Decree-Law No. 473/99 of November 8, and by the
Code of Securities, approved by the Decree-Law No. 486/99, of 13
of November.
Article 12.
Illicit from mere social ordering
1-A violation of the duties set out in this diploma and in the standards
regulations provided for in Articles 8 to 11 constitute punishing counterordinance
with fine between € 2500 and € 25000, save the provisions of the following number.
2-A violation of the duties provided for in Article 6 constitutes counterordinate punishment
with fine between € 25000 and € 250000.
3-Cumulatively with the fines can be applied to those responsible for any
counterordinance the ancillary sanctions provided for in the general regime of the illicit of
mere social ordinance or in the Securities Code.
4-A attempt by any of the illicit mere social ordinance described in the present
diploma is punishable.
5-When it proves necessary for the instruction of the process or for the tutelage of the
interests of the participants or adherents or of the general public, may be
determined one of the precautionary measures provided for in the Code of Values
Securities or in the general regime of the illicit of mere social ordering.
6-A competence for the processing of counter-ordinations, application of the fines and
ancillary sanctions, as well as of the measures of a cautionary nature, belongs to the CMVM,
under the terms of its Statute and the Securities Code.
Article 13.
Transitional arrangement
The entities that are found to be carrying out the activity referred to in this Decree-law
on the date of the respective entry into force carry out the notification provided for in Article 5 in the
30 days subsequent to that date.
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Seen and approved in Council of Ministers of
The Prime Minister
The Minister of State and Finance