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PRESIDENCY of the COUNCIL of MINISTERS draft law No. 230/200 X 636/PL 2008-11-02 the explanatory memorandum to the Portuguese Bank of business, s. a., has been facing for some time, a set of difficulties from the institution itself, which only recently was discharged in full, and that, coupled with the current aggravation of the liquidity conditions in the financial markets If they prove insurmountable. Under the inspection of the Bank of Portugal were detected a number of impairments that have led to investigations and the establishment of various processes of administrative offense and complaint to the Attorney General of the Republic. Several prior initiatives have been developed in order to allow the Bank to overcome the difficulties they encounter and prevent cease payments, in particular through special liquidity support in the form of loans and other operations. Despite these measures, the Portuguese Bank of business, s. a., is very close to a situation of breach of payments, it appears not possible to continue to seek a solution to the absence of adequate liquidity of the institution without the resolution of a problem that requires the replacement of the appropriate capital levels to engage in activity.
PRESIDENCY of the COUNCIL of MINISTERS the restructuring plans submitted by the Portuguese Bank of business, s. a., have not produced the desired results, in particular because it was not possible to achieve, through private investment, the capital increase is necessary for the Bank's capitalization, and because the amounts now determined as being necessary for the financial balance proved to be substantially higher than originally expected and the Bank in a situation of non-compliance with the minimum of creditworthiness. Before the development of the situation and in view of the volume of accumulated losses by the Bank, not glimpsed the use of viable new liquidity support operations in view of the high risks they were exposed to the participating entities. We are facing a situation of impending rupture of payments by the Bank, which will put at risk the interests of depositors and the stability of the financial system and which requires urgent intervention by the State in the direction proposed. The Government, when making the decision to nationalize, took into consideration the evaluation of the situation of the Portuguese Bank of business, s. a., carried out by the Bank of Portugal, as well as your decision to proceed with the appointment of provisional administrators under article 143 of the general scheme of credit institutions and financial corporations. It happens that, in accordance with constitutional effect articles – 83, 165, paragraph 1, point (l)), and article 18, paragraph 3 – the Act of nationalization assumes the existence of a general regulatory law with which it complies. Therefore, it is necessary to comply with this constitutional requirement.
PRESIDENCY of the COUNCIL of MINISTERS in these terms, this Bill also seeks to create a general legal framework for public ownership, for reasons of public interest, shareholdings of private legal persons, thereby giving the execution article 83 and in accordance with the principles set out in (f)) of article 81, both of the Constitution. The central concern of the Government in matters covered by this draft law is to safeguard the public interest, with observance of the principles of proportionality, equality and competition. It is in this context that imposed the measures provided for in this Bill. So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following proposal of law: article 1 legal status of public ownership is adopted in the annex to this law, which is an integral part, the legal regime of public ownership through nationalization, in application of article 83 of the Constitution. Article 2 nationalization of Portuguese business Bank, n. a. 1-Are nationalized all shares representing the capital stock of the Portuguese Bank of business, s.a., hereinafter referred to as BPN.
2 – The Act of nationalization referred to in the preceding paragraph shall apply the provisions of the following paragraphs, as well as, in all that is not prepared in a special way in this article, the regime set out in the annex to this law.
PRESIDENCY of the COUNCIL of MINISTERS 3-For the purposes of paragraph 1 and regardless of any formalities, transmitted to the State, through the Directorate-General of Treasury and finance, all the shares representing the capital stock of the BPN, free of any charge or charges, for all legal purposes. 4 – the change in the ownership of the shares produces its effects directly by virtue of this law and is enforceable against third parties regardless of registration. 5-BPN is the nature of a public limited company of public capital to writing, continued to be governed by the legal provisions governing their activity, as well as by its Statute, to the extent that they do not contradict the provisions of the legal regime of the State enterprise sector and in this law. 6-the management of BPN is assigned by this Act, to the Caixa Geral de Depósitos, s.a., fitting to this authority to proceed to the appointment of members of the governing bodies. 7-it is up to the Caixa Geral de Depósitos, S.A., proceed, within 60 days, the definition of the objectives for the management of BPN, Waring, in particular, the interests of the depositors, the patrimonial interests of the State and the taxpayers and the defense of workers ' rights. 8-the objectives set out in the preceding paragraph are subject to prior approval by the Member of Government responsible for the area of finance.
Article 3 entry into force this law shall enter into force on the day following your publication.
Seen and approved by the Council of Ministers of 2 November 2008 PRESIDENCY of the COUNCIL of MINISTERS the Prime Minister the Minister of Parliamentary Affairs Minister Presidency, PRESIDENCY of the COUNCIL of MINISTERS
ANNEX (referred to in article 1) article 1 Purpose may be subject to public ownership through nationalization, in whole or in part, shareholdings of private legal persons, where, for reasons especially, this is necessary to safeguard the public interest. Article 2 of Act 1 – except when nationalization are legislative form, acts of public ownership, through nationalisation, are adopted by regulatory decree, with respect for this scheme. 2 – the implementing decree shows in its preamble to the recognition of the public interest Act of nationalization, with observance of the principles of proportionality, equality and competition. Article 3 1 Procedure – No implementing decree referred to in the preceding article shall contain the specific aspects and the conditions of the operations to be carried out and, in case of partial nationalization, the identification of shareholdings to nationalize.
2-in the case of nationalised social equity belong to legal entity admitted to trading on regulated markets, should the managing body of the respective market proceed to suspend the trading of all of the activities of the legal person, PRESIDENCY of the COUNCIL of MINISTERS from the time of announcement of the nationalization, in order to protect the interests of investors and the proper functioning of the market. Article 4 1 – Compensation to the holders of the shares of the legal person, as well as the possible holders of burden or charges constituted on the same, is the right to compensation when due, with the reference value of the respective rights, assessed in the light of the financial situation of the legal person at the date of entry into force of the Act of nationalization. 2 – the calculation of compensation to be allocated to holders of holdings nationalized, the value of rights is determined taking into account the effective net worth. Article 5 Assessment 1 – for the purposes set out in the previous article, the Government promotes the realization of an evaluation to be carried out by at least two independent entities, designated by order of the Member of Government responsible for the area of finance. 2 – the assessment referred to in paragraph 1 must be completed within 30 days, renewable for an equal period by duly justified request by the institutions.
3-on the basis of the assessment referred to in the preceding paragraph, the Member of Government responsible for the area of finance, fixed by order, within 15 days, the amount of compensation, after prior hearing of the representatives of the previous holders of shares, are constituted as such.
PRESIDENCY of the COUNCIL of MINISTERS – 4 the right to the payment of compensation shall be suspended while they are under way, against the previous holders, directly or indirectly, of shares, legal proceedings or investigations for evidence of practices detrimental to the patrimonial interests of the legal person and even judicial decision with traffic, which does not lead to your conviction. Article 6 transmission of shares to the State 1-considered to be transmitted to the State, for all legal purposes and regardless of any formalities, the shares covered by the nationalization taken by regulatory decree referred to in article 2, free of charge and charges. 2-the change in ownership of the shareholdings produces its effects directly by virtue of the regulatory decree referred to in article 2 and is enforceable against third parties regardless of registration. 3-the provisions of paragraph 1 shall not prevent the eventual and subsequent transfer of the shares to which society is fully held, directly or indirectly, by the State.
Article 7 maintenance of legal personality and legal nature 1-nationalization of the shareholdings of a legal person under the conditions laid down in the present scheme does not extinguish their legal personality, nor change its legal nature. 2-the provisions of the preceding paragraph shall not prejudice any subsequent decisions of the legal person. Article 8 rights and obligations of the COUNCIL of MINISTERS PRESIDENCY 1-Without prejudice to the provisions of paragraph 2 of the preceding article, shall remain in the ownership of a legal person the universality of goods, rights and obligations, legal or contractual, that this holds at the time of the nationalisation, in particular emerging of employment contracts where the body corporate is a party, fully respecting workers ' rights. 2-the legal person continues to exercise all the duties are carried out by operation of law, contract or its statutes. Article 9 Dissolution of the corporate bodies 1-in the event that the nationalization covering all or most of the shares, shall be deemed to be dissolved with immediate effect, the governing bodies of the legal person concerned and of the companies with this company that is in a dominant or group. 2-retiring members of the corporate bodies remain in Office until new members are appointed and are required to provide to their successors all the information and clarifications necessary for the normal exercise of their duties. 3-unless different procedure result from the application of the special arrangements for supervision, retiring members of the management bodies of a legal person and of the companies referred to in paragraph 1 may not practise any acts or contracts might alter the patrimonial situation of the legal person which is not reconduzam to your current management, under penalty of nullity of the acts and contracts in question and of the personal liability for damages arising out of those. 4-the limitation provided for in paragraph 1 extends to acts of execution of decisions taken prior to the dissolution of the governing bodies. 5-the dissolution referred to in paragraph 1 does not confer a right to any compensation, despite contractual provision to the contrary. Article 10 PRESIDENCY of the COUNCIL of MINISTERS
Appointment of members to the administrative or supervisory organs In case of partial nationalization, the State may proceed with the designation of one or more members to the administrative or supervisory organ of the legal person, without requiring compliance with the statutory limit to the composition of those bodies. Article 11 Mandate and objectives 1 management-the management of the legal person whose holdings have been nationalized can be attributed to third party, the terms and conditions set out in order of the Member of Government responsible for the area of finance, fitting to this entity the appointing members governing bodies of the legal person. 2 – Can still be assigned to the third party referred to in the previous paragraph, the definition of the management objectives of the legal person, subject to prior approval by the Member of Government responsible for the area of finance. 3 – when the third party is a public company, shall not apply to the members of their governing bodies or to members of entities with this company that is in a dominant or group, that is designated under paragraph 1, the restrictions on the exercise of functions provided for in chapter IV of the Statute of the Public Manager. Article 12 public company Transformation 1 – whenever the nationalization work the application of any of the circumstances provided for in paragraph 1 of article 3 of the State's business sector regime, approved by Decree-Law No. 558/99, of December 17, as amended by Decree-Law No. 300/2007 of 23 August, the legal person is transformed into a public limited company of public capital. 2-in the situation provided for in the preceding paragraph, the Government shall adopt, by Ordinance, within 30 days, the new statutes of the legal person. Article 13 delegation of PRESIDENCY of the COUNCIL of MINISTERS powers are delegated the Minister responsible for the area of finance, with faculty of sub-delegation, the sufficient powers to, by order, determine the other ancillary conditions that are convenient and to practice the implementation tasks that are necessary for the realization of the operation of nationalization under this regime.
Article 14 effects of the recognition of the public interest the recognition of the public interest laid down in implementing decree referred to in article 2 dispenses with the adoption of the resolutions referred to in paragraph 1 of article 128 of the code of Administrative Courts Procedure so that the eventual impeachment of any acts or regulations adopted in implementation of the provisions of this scheme does not produce suspensive effect. Article 15 social and cooperative Sector this scheme applies, with any necessary adaptations, to the social sector and cooperative.
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