Advanced Search

Changes The Code Of Commercial Companies And The Commercial Registry Code, Transposing To The Internal Legal Order The Directive 2005/56/ec Of The European Parliament And Of The Council Of 26 October 2005 On Cross-Border Mergers Of Society

Original Language Title: Altera o Código das Sociedades Comerciais e o Código do Registo Comercial, transpondo para a ordem jurídica interna a Directiva n.º 2005/56/CE, do Parlamento Europeu e do Conselho, de 26 de Outubro de 2005, relativa às fusões transfronteiriças das socieda

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.

CHAIR OF THE COUNCIL OF MINISTERS

1

Proposed Law No. 236 /X

Exhibition of Motives

This proposed Act is intended to transact Directive No 2005 /56/CE, of the

European Parliament and of the Council of October 26, 2005 on mergers

cross-boundary of limited liability companies and Directive No 2007 /63/CE

of the European Parliament and of the Council of November 13, 2007, amending the

Directives No 78 /855/CEE and 82 /891/CEE of the Council with regard to the requirement of

a report of independent experts upon the merger or spinoff of companies

anonymous.

The transposition of the Cross-border Mergers Directive aims to allow societies to

of limited liability of different types, governed by legislation of different

Member States can merge. It is a fundamental possibility for the

operation of a community internal market.

The present degree scheme reduces the costs of a cross-border merger, benefiting the

largest possible number of companies, in harmony with the growth purposes of the

employment, assumed in the Lisbon Agenda.

With a view to the facilitation of cross-border mergers between liability companies

limited that, until now, or were impossible or involved excessively high costs,

establishes itself in the Code of Commercial Societies a simple and functional framework.

Simultaneously, the regime applicable to the definition of the rights of participation is established

of the workers in society resulting from the cross-border merger, seeking

ensure, in accordance with the Directive, respect for the rights of participation of

that were formerly the holders of the merger, the employees of the societies in it

participants.

The regime applicable to a cross-border merger implies the insertion of a new set of

provisions in the Code of Commercial Societies. The matter concerning the participation of the

workers, provided for in Article 16 of the Directive, arise separate, justifying, by

reasons of systematic, your condensation in another chapter and, by consequence, your not

insertion into the Code of Commercial Societies.

CHAIR OF THE COUNCIL OF MINISTERS

2

It is further transposed to Directive No 2007 /63/CE of the European Parliament and of the Council, of

November 13, 2007, amending Directives n. ºs 78 /855/CEE and 82 /891/CEE of the

Advice, with respect to the requirement for a report of independent experts at the

merger or spinoff of anonymous companies, dismising this report when all the

partners and holders of other securities confirming the right to vote of all societies

that participate in the merger dispensing it.

Should be considered the promotion of consultation to the representative organizations of the

workers.

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:

CHAPTER I

Common provisions

Article 1.

Object and scope

1-A This Law transposes to the internal legal order the Directive No 2005 /56/CE, of the

European Parliament and of the Council of October 26, 2005 on mergers

cross-boundary of limited liability companies, including the regime

referring to the participation of employees in the society resulting from the merger and the Directive

n. 2007 /63/CE of the European Parliament and of the Council of November 13, 2007,

amending Directives n. 78 /855/CEE and 82 /891/CEE of the Council, as regards

to the requirement for a report of independent experts upon the merger or spin-off of

anonymous societies.

2-The references made to Member States and the territory of the Community shall be

construed as referring also to the other States covered by the Agreement on

the European Economic Area and its territory.

Article 2.

Notions

For the purposes set out in this Law, it shall be understood by:

CHAIR OF THE COUNCIL OF MINISTERS

3

a) "Cross-border merger", the meeting in one of two or more societies,

constituted in accordance with the legislation of a Member State and having the registered office

statuary, the central administration or the main establishment in the territory of the

Community, provided that at least two of these societies are governed by the

legal ordinances from different Member States.

b) "Participation of workers", the right of workers or their

representatives elect or designate members of the governing bodies or

of supervision of a corporation, of committees of these bodies or of the governing body

competent to decide on the economic planning of the society or, still, the

right to recommend or object to the appointment of members of the organs of

administration or oversight of a society.

CHAPTER II

Participation of workers

Section I

General arrangement

Article 3.

Regime

1-To the society resulting from cross-border merger, carried out in the terms of the articles

117.-A to 117.-L of the Code of Commercial Societies, which has the registered office in Portugal,

applies the scheme for the participation of workers who eventually here to

applicable.

2-In substitution of the scheme provided for in the preceding paragraph, the provisions of the

following sections of this chapter whenever:

a) At least one of the merged companies has, during the six months that

background in the publication of the cross-border merger project, an average number

of workers in excess of 500 and be managed under a participation scheme

of workers;

b) The scheme provided for in the preceding paragraph does not provide for the same level of participation

that the applicable in the companies subject to the merger or does not provide for the

employees of the establishments located in the other Member States

CHAIR OF THE COUNCIL OF MINISTERS

4

may exercise the same rights of participation as employees

employees in the Member State of the head office.

3-A assessment of the level of participation, for the purposes of the application of the b) of the number

previous, it is made by reference to the proportion of workers ' representatives that the

Regime provides that they integrate the administrative or supervisory body or its

committees, or the governing body responsible for the profitable units of the society.

Section II

Determination of the applicable regime

Subsection I

Procedure of negotiation

Article 4.

Constitution of the special negotiating group

1-After the registration of the draft merger and the publication of the respective news, the societies

participants adopt the necessary measures for the constitution of a special group

of negotiation, for with this to negotiate the participation scheme of the workers in the

society resulting from the merger.

2-A The election or designation of the members of the special negotiating group shall be governed by the

legislation from each Member State in whose territory the workers are

represented.

3-Participating societies begin the procedure with the provision of the following

information:

a) Identification of participating companies, their subsidiaries and establishments;

b) Number of employees of the companies, subsidiaries and establishments referred to in

previous point.

4-A information provided for in the preceding paragraph shall be provided:

a) To the representatives of the employees participating in the designation or election

CHAIR OF THE COUNCIL OF MINISTERS

5

of the members of the special negotiating group, in accordance with the legislation of the

Member States in whose territory the participating societies are located or

respective subsidiaries and establishments

b) To employees of the participating companies, subsidiaries and situated establishments

in Member States whose legislation does not behold the participation of the

respective representatives in the designation or election of the members of the group

trading special.

Article 5.

Composition of the special trading group

1-The special negotiating group is composed of representatives of the employees

employees in each Member State by the participating companies, their subsidiaries and

establishments, corresponding to each Member State a representative for each

10% of the total number of employees employed in all Member States.

2-To the Member State in which the number of employees employed is lower than

percentage referred to in the previous number corresponds to a representative in the group

trading special.

3-The special negotiating group has so many supplementary members how many the

necessary to ensure, in relation to each Member State, a representative of the

workers from each participating society who have workers in that state and

let it cease to have legal existence as such after the merger.

4-The number of additional members may not exceed 20% of the number of members

resulting from the application of the provisions of paragraph 1.

5-If the number of additional members determined by application of paragraph 3 exceeds the

percentage predicted in the previous number, those members are providable, within this

limit and by descending order, by representatives of the societies which, in different

Member States, employ greater numbers of workers.

CHAIR OF THE COUNCIL OF MINISTERS

6

6-Are not represented by the members indicated under the n. ºs 1 and 2 the

employees of the companies represented by supplementary members pursuant to the

n. ºs 3 a to 5.

7-The number of employees of the participating companies and the respective subsidiaries and

interested establishments is determined with reference to the date on which they are

complied with the formalities referred to in paragraph 1 of the preceding Article.

Article 6.

Negotiation

1-A negotiation on the scheme for the participation of workers in the resulting society

of the merger has started as soon as the special trading group is constituted, cabling

the initiative to the participating societies in the merger.

2-The special negotiating group has the right to meet immediately prior to

any negotiation meeting.

Article 7.

Obligations of the participating society with greater number of employees and headquarters

in national territory

They are obligations of the participating company that employs the largest number of employees,

when you have the head office on national territory:

a) Determine, in accordance with the criteria set out in Article 5, the number

total of the members of the special negotiating group and the Member States in

that these must be elected or designated;

b) Make an appointment a reasonable time, counted from the information to be provided on the terms

of the paragraph d ), for the election or designation of the members of the special group of

negotiation;

c) To inform the special negotiating group on the merger project and its

evolution, up to the register of the society resulting from the merger;

CHAIR OF THE COUNCIL OF MINISTERS

7

d) Inform of the decisions provided for in points a) and b) the other societies

participants and the entities referred to in Article 4 (4);

e) Communicate to the other participating societies the constitution of the special group of

negotiation.

Article 8.

Operation of the special trading group

1-Each member of the special bargaining group has one vote.

2-The deliberations of the special negotiating group shall be adopted by an absolute majority

of the votes that correspond to members who represent the absolute majority of the

workers.

3-A deliberation that approves an agreement that entails the reduction of the right of participation

of the workers, in the event that this covers, at the minimum, 25% of the total workers

of the participating companies, shall be adopted by a majority of 2/3 of the members who

represent 2/3 of the total number of workers and that includes the votes of members

that represent employees employed in at least two Member States.

4-It is considered that there is a reduction in the right of participation if the proportion of members

representatives of employees in the bodies of administration or surveillance of the

society resulting from the merger is less than the highest proportion existing in

any of the participating companies.

5-For the purpose of the preceding figures and without prejudice to the following numbers, each member

of the special negotiating group represents the employees of the participating society

of which it comes from.

6-In the event that there is, in a Member State, some participating society, or subsidiary or

establishment of participating society with registered office in another Member State, not being

from these companies any member of the special trading group, the

representation of the respective employees is assigned, in equal parts, to the members

CHAIR OF THE COUNCIL OF MINISTERS

8

coming from that state.

7-In the event that there are, in a Member State, two or more members of the special group of

trading from the same participating society, the representation of the

respective workers are assigned, in equal parts, to those members.

8-A minutes of the meeting in which any negotiating position of the special group of

negotiation shall indicate, in particular, the elements that meet the requirements of the

n. ºs 2 a to 7.

9-The special negotiating group may be assisted by experts of your choice and may

to deliberate the participation of these in the negotiation meetings, without the right to vote.

10-The special negotiating group can inform the structures of collective representation

of the workers of the beginning and the evolution of the negotiation and the respective result.

Article 9.

Duration of the negotiation

1-A trading stems for a maximum period of six months from the

communication to the participating societies of the constitution of the special group of

negotiation.

2-By agreement between the parties, the period provided for in the preceding paragraph may be extended

up to another six months.

Article 10.

Good faith and cooperation

1-Parties shall act in good faith in the negotiation process, inter alia,

responding with the maximum possible brevity to the proposals and counterproposals and

observing, should it exist, the negotiating protocol.

2-Each Party shall provide the other with the elements or information that it requests,

to the extent that it does not result in prejudice to the defence of its interests.

Article 11.

Agreement

CHAIR OF THE COUNCIL OF MINISTERS

9

1-Without prejudice to the autonomy of the parties, the agreement on the participation of employees

shall provide for:

a) The date of entry into force and the duration of the agreement;

b) The scope of application, identifying the society resulting from the merger, subsidiaries and

establishments covered;

c) The number of members of the board of directors or supervision of the society

that employees, or their representatives, may designate or elect, or the

rights to which employees have to recommend or oppose the

designation or election of members of those bodies;

d) The applicable procedure for fulfillment of the provisions under the paragraph

previous;

e) The situations in which the agreement is to be reviewed and the review process.

2-In substitution of the provisions of the provisions of the c) and d ) from the previous number, the parties may

agree on the implementation of the scheme provided for in Subsection III.

3-The agreement is concluded in writing.

4-A society resulting from the merger should refer a copy of the agreement to the responsible ministry

by the labour area.

Subsection II

Remoteness of negotiation

Article 12.

Deliberation of participating societies

1-The procedure provided for in the previous Subsection has no place when the organs

competent of the participating companies to deliberate that it applies to the society

resulting from the merger, as of the date of the respective registration, the scheme provided for in

Following subsection.

2-A The deliberation referred to in the preceding paragraph takes place when the drafting of the project

of fusion, of which it must appear.

CHAIR OF THE COUNCIL OF MINISTERS

10

3-In the case provided for in paragraph 1 of this article, the participating companies shall promote the

designation or election of a structure of representation of workers identical to the

special negotiating group, which exercises the powers provided for in paragraph 4 of the article

14., in Article 15 and in Article 16 (2)

4-The structure referred to in the preceding paragraph and its members shall apply the same

regime that to the special negotiating group and respective members.

Article 13.

Deliberation of the special negotiating group

By a two-thirds majority of members representing, at the minimum, two-thirds of the

all employees and which includes the votes of members representing

workers in at least two Member States, the special negotiating group

may deliberate not to start the negotiation or terminate the one in progress, accepting the

participation scheme applicable to the society resulting from the merger provided for in Subsection

next.

Subsection III

Suptive regime

Article 14.

Institution

1-The workers of the society resulting from the merger shall have the right to elect, designate,

recommend or object to the designation of a number of members of the organ of

administration or surveillance of the said society equal to the highest of the

proportions that behold in any of the participating societies prior to the registration of the

merger.

2-Where the provisions in the preceding paragraph apply in the sequence of the

negotiation procedure provided for in Subsection I, the number of representatives of the

workers shall not exceed 1/3 of the total members of the governing body,

without prejudice to the possibility of by agreement being established a higher proportion.

CHAIR OF THE COUNCIL OF MINISTERS

11

3-The provisions of the preceding paragraphs shall apply in the following cases, without prejudice to the

provisions of the previous Subsection:

a) When the parties so decide;

b) Where no agreement has been concluded within the period set out in Article 6 and the

competent body of each of the participating companies to decide to accept their

application and so to follow up the process for registration of the resulting society

of the merger;

c) When there is in one or more participating societies regime participation

that covers at least 1/3 of workers in total societies

participants or when, although it is covered by participation scheme

less than 1/3 of employees, the special trading group so the

delibere.

4-If there are different modalities of participation in the participating societies, the

special negotiating group chooses the one that applies to the society resulting from the merger.

5-If the special negotiating group does not proceed to the choice provided for in the preceding paragraph, it is

applicable for modality covering the largest number of employees of the societies

participants.

6-The Parties shall provide each other with the knowledge of the deliberations taken.

Section III

Common provisions

Article 15.

Distribution of seats

1-Without prejudice to the competence of the board of employees with regard to the society

resulting from the merger in case this is a European society, it is incumbent on the special group of

negotiation to fix, taking into consideration the proportion of the employees of the society

resulting from the merger employed in each Member State, or the distribution of the

places to be probing in the bodies of administration or surveillance of society by the

members representing the employees of the various Member States, or the

CHAIR OF THE COUNCIL OF MINISTERS

12

mode how the same workers can recommend or reject members of the

body of administration or surveillance.

2-If, in accordance with the criterion referred to in the preceding paragraph, there are one or more States-

Members in which there are workers who do not have representatives in the organ of

administration or surveillance, should be assigned at least one place to one of these

States, preferring, being the case of this, the representative of the society based in the

national territory.

3-The number of seats assigned according to the previous number should be subtracted

to those of the Member States to which it would fit more than one place, proceeding by

inverse order to the number of workers in them.

Article 16.

Designation or election of members

1-A designation or election of the members representing employees employed

in each Member State for the places of the administrative or supervisory body

of the society resulting from the merger is regulated by the national legislation of that State.

2-In the absence of applicable national legislation, the mode of designation or election of the member

coming from that State is deliberated by the special negotiating group.

Article 17.

Status of members representatives of employees

The members of the administrative or supervisory body that are appointed, elected or

recommended by employees or by their representatives have the same rights and

duties that the remaining members, including the right to vote.

Article 18.

Financial and material resources

1-The participating societies shall:

CHAIR OF THE COUNCIL OF MINISTERS

13

a) Pay the expenses of the special trading group relating to trading and the

other representations which, in the terms of the previous articles, are from your

competence, so that the latter can properly carry out their duties;

b) To provide the special negotiating group with the necessary material means to the

fulfillment of the respective mission, including facilities and places for affixing of the

information;

c) Pay the expenses of at least one expert from the special negotiating group.

2-The operating expenses include those relating to the organisation of meetings, the

translations, stays and displacements and, still, the retribution of an expert.

3-The provisions of the preceding paragraph, except with respect to the consideration of an expert,

may be regulated differently by agreement with the participating societies.

4-Without prejudice to specific agreement on this matter, travel and stay expenses

are paid under the scheme in force in the establishments or companies in which the

representatives of the employees work, and the applicable regime is applied to the expert

to members from the same Member State.

5-From the application of the criterion set out in the preceding paragraph shall not result in payment of

expenses to one member of the special trading group less favorable than the other.

6-The expenses for each member of the special trading group are paid by the

a participating society from which or from whose branch or establishment the same is

coming.

7-The participating companies pay the expert's expenses in the proportion of the number of the

respective workers.

8-The expenses of member of the special trading group that does not come from

any participating society, its branch office or establishment are paid by the

participating companies whose employees are by it represented, in the proportion

of the number of these.

Article 19.

CHAIR OF THE COUNCIL OF MINISTERS

14

Duty of reservation and confidentiality

The provision of information to members of the special negotiating group and others

representatives of the workers, the qualification of those as confidential, the duty of

secrecy and the refusal of the provision of information shall be governed by Articles 458 to 460 of the

Code of Work.

Section IV

Provisions of a national character

Article 20.

Scope

The provisions of this Section shall apply to companies, subsidiaries and situated establishments

in national territory.

Article 21.

Designation or election of members of the special negotiating group

1-A designation or election shall ensure that there is a member of the special group of

trading coming from each participating society with registered office in national territory

or, if this is not possible, of those in it employ greater numbers of workers.

2-Can be a member of the special negotiating group a syndicate associate who

represent employees of the participating companies, subsidiaries or establishments

interested, regardless of whether you are a worker at your service.

3-Members of the special trading group are assigned:

a) In the event that there is only one participating or subsidiary company, by agreement between the

respective committee of workers and the trade union associations that represent

such workers, or only by that one, in the absence of these;

b) In the event that there are two or more participating companies or subsidiaries, by agreement

between the respective commissions of workers and the trade union associations that

represent those workers, or only among those, in the absence of these;

c) In the event that there are one or more participating companies or subsidiaries and one or more

CHAIR OF THE COUNCIL OF MINISTERS

15

establishments of another participating company or subsidiary, by agreement between the

respective committees of workers and trade union associations, provided that these

represent also the employees of the said establishments;

d) In the absence of commissions of workers, by agreement between the associations

union that together account for at least two thirds of the

employees of the participating companies, branches or establishments;

e) In the case of no check in the previous paragraphs, by agreement between the

trade union associations representing, each, 5% of the employees of the

participating societies, branches and establishments.

4-Only trade union associations representing at least 5% of the employees of the

participating companies, subsidiaries or existing establishments on national territory

may participate in the designation of the employees ' representatives, without prejudice to the

provisions of the following number.

5-The trade union associations that together account for at least 5% of the

employees of the participating companies, subsidiaries or existing establishments in

national territory, they can mandate one of them to participate in the designation of the

representatives of the workers.

6-The members of the special negotiating group are elected by direct and secret ballot, of

between applications submitted by at least 100 or 10% of the employees of the

participating companies, subsidiaries and existing establishments on national territory in the

following situations:

a) If there is no place to the designation under the preceding Articles;

b) Where at least one third of the employees of the participating companies,

branches and establishments the rewant.

7-A convocation of the electoral act, the respective regulation, the electoral notebook, the sections

of voting, the vote, the minutes, the clearance and publicity of the result of the election, well

as the control of the legality of it, are regulated by Article 328 (2) and

CHAIR OF THE COUNCIL OF MINISTERS

16

by Articles 331 to 336, 338 and 352 of Law No 35/2004 of July 29, with the

due adaptations.

8-A The designation or election of members of the special negotiating group shall be

accompanied by the indication of the number of workers each represents.

9-Part-time workers are considered for the purpose of calculating the number of

workers, regardless of the duration of their normal period of work.

Article 22.

Designation or election of the members of the board of directors or surveillance

To the designation or election of the members representing the workers for the seats of the

body of administration or surveillance of the company resulting from the merger shall apply the

provisions of the previous article, with the necessary adaptations.

Article 23.

Special protection of employee representatives

1-The members of the special negotiating group and the representatives of the employees in the

body of administration or surveillance shall, in particular, have a right to:

a) Credit of monthly hours for the exercise of their duties, equal to that of the members

of committee of workers;

b) Time credit without loss of retribution, as far as it is necessary

to participate in meetings with the society resulting from the merger, in meetings of the

body of administration or surveillance and in preparatory meetings of these,

including the time spent on the displacements;

c) Justification of absences by reason of the performance of their duties which

exceed the credit of hours, under the terms set out in the Labour Code for

the members of the structures of collective representation of workers;

d) Protection in the event of disciplinary procedure, dismissal and transfer,

on the terms set out in the Labour Code for members of the structures of

CHAIR OF THE COUNCIL OF MINISTERS

17

collective representation of workers.

2-There is no place the accumulation of the credit of hours for the fact that the employee belongs to

more of a structure of collective representation of workers.

Article 24.

Subsequent mergers

When the society resulting from the cross-border merger is managed according to a regime of

participation of employees, are applicable to the mergers in which it participates in the territory

national, for a period of three years subsequent to the cross-border merger, the provisions

of this chapter, with the necessary adaptations.

Section V

Counter-ordering

Article 25.

General regime

1-The general scheme provided for in Articles 614 to 640 of the Labour Code shall apply to the

offences arising from the violation of this Chapter.

2-In the application of this chapter to the Autonomous Regions shall be taken into account

competencies assigned by law to their respective regional bodies and services.

Article 26.

Counter-ordinations in particular

1-Constitutive counter-ordinance very serious violation of Article 4 (2) of Article 6,

of Article 7, of paragraphs 1 and 6 of Article 14 and of Article 18 (1) and 2.

2-Constitute counterordinance grave the violation of Article 6 (1) and Article 8 (9)

CHAIR OF THE COUNCIL OF MINISTERS

18

3-Constitute counterordinance leads to violation of paragraph 4 of artigo11.

CHAPTER III

Legislative amendments

Article 27.

Change to the Code of Commercial Societies

Articles 98, 99 and 101 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 n.

184/87, of April 21, 280/87, of July 8, 229-B/88, of July 4, 418/89, of 30 of

November, 142-A/91, of April 10, 238/91, of July 2, 225/92, of October 21,

20/93, of January 26, 261/95, of October 3, 328/95, of December 9, 257/96, of

December 31, 343/98, of November 6, 486/99, of November 13, 36/2000, of

March 14, 237/2001, of August 30, 162/2002, of July 11, 107/2003, of 4 of

June, 88/2004, of April 20, 19/2005, of January 18, 35/2005, of February 17,

111/2005, of July 8, 52/2006, of March 15, 76-A/2006, of March 29, and 8/2007,

of January 17, they are replaced by the following:

" Article 98.

[...]

1-The administrations of the societies wishing to merge elaborated, in

set, a fusion project donde constem, in addition to other elements

necessary or convenient for the perfect knowledge of the operation

targeted, both in the legal aspect, and in the economic aspect, the following

elements:

a) [...];

CHAIR OF THE COUNCIL OF MINISTERS

19

b) The type, the firm, the registered office, the amount of the capital and the number of matriculation

in the commercial register of each of the societies, as well as the registered office and

the firm of the company resulting from the merger;

c) [...];

d) [...];

e) [...];

f) [...];

g ) [...];

h) [...];

i) [...];

j) [...];

l) [...];

m) [...].

2-[...].

3-[...].

Article 99.

[...]

1-[...].

2-[...].

3-[...].

4-[...].

5-[...].

6-No examination of the draft merger referred to in paragraph 2 and the

reports provided for in paragraph 4 if all partners and holders of other securities

that confirm the right to vote of all the societies participating in the merger

CHAIR OF THE COUNCIL OF MINISTERS

20

dispensing them.

Article 101.

[...]

1-A from the publication of the convocation, of the communication to the partners or of the

warning to creditors required by the previous article, the partners and creditors, or,

when these do not exist, the employees of any of the societies

participants in the merger have the right to consult, at the head office of each of them,

the following documents and to obtain, without charge, full copy of these:

a) [...];

b) [...];

c) [...].

2-If up to the date set for the meeting of the general meeting pursuant to the article

previous the administration of the society to receive an opinion from the representatives

of the employees regarding the merger process, this opinion must be

attached to the report drawn up by the organs of society and by the experts ".

Article 28.

Addition to the Code of Commercial Societies

A Section I to Chapter IX is added, which covers Articles 97 to 119, as well as a

Section II to Chapter IX 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

184/87, of April 21, 280/87, of July 8, 229-B/88, of July 4, 418/89, of 30 of

November, 142-A/91, of April 10, 238/91, of July 2, 225/92, of October 21,

20/93, of January 26, 261/95, of October 3, 328/95, of December 9, 257/96, of

December 31, 343/98, of November 6, 486/99, of November 13, 36/2000, of

March 14, 237/2001, of August 30, 162/2002, of July 11, 107/2003, of 4 of

June, 88/2004, of April 20, 19/2005, of January 18, 35/2005, of February 17,

111/2005, of July 8, 52/2006, of March 15, and 76-A/2006, of March 29 and by the

Decree-Law No. 8/2007 of January 17, composed of Articles 117-A, 117.-B, 117-C,

117.-D, 117.-And, 117.-F, 117.-G, 117.-H, 117.-J and 117.-L, with the following wording:

CHAIR OF THE COUNCIL OF MINISTERS

21

" Section II

Cross-border mergers

Article 117-A

Notion and scope

1-A cross-border merger takes place upon meeting in one of two or

more societies, provided that one of the participating companies in the merger has

registered office in Portugal and another of the participating companies in the merger was

constituted in accordance with the legislation of a Member State, in the terms

of Directive No 2005 /56/CE, of the European Parliament and of the Council, of

October 26, 2005, and have the registered office, the central administration

or the main establishment in the territory of the Community.

2-Societies in the collective name and the societies in simple commanding no

may participate in a cross-border merger.

Article 117-B

Applicable law

They are applicable to companies based in Portugal participating in a process

of cross-border merger the provisions of this section and, secondarily,

the provisions relating to internal mergers, in particular with respect to the

decision making process concerning the merger, the protection of the creditors of the

companies under merger, of bond and the rights of the

workers who are unregulated by special law.

Article 117-C

Joint projects of cross-border mergers

Joint project for cross-border merger must contain the elements

referred to in Article 98 and still:

a) The rules for the transfer of shares or other securities

CHAIR OF THE COUNCIL OF MINISTERS

22

representative of the social capital of the society resulting from the merger

cross-border;

b) The date of the closure of the accounts of the companies participating in the

merger used to define the conditions of cross-border merger;

c) Where appropriate, the information on the procedures of agreement

with which the provisions relating to the intervention of the

workers in the definition of the respective rights of participation in the

society resulting from the cross-border merger;

d) The likely repercussions of the merger on employment.

Article 117-D

Designation of experts

1-Applies to the audit of the joint project in the societies with a registered office

Portugal participating in a cross-border merger the provisions of n. ºs 1, 2, and

4 a to 6 of Article 99 para.

2-If all the participating societies in the merger wish for, the expert examination

of the joint fusion project can be done as to all of them by the

even reviewer or society of reviewers, which draws up a single report

intended for all partners of the participating societies.

3-In the cases provided for in the preceding paragraph, recalling the choice of societies

participants in a Portuguese reviewer or in a society of reviewers

Portuguese, your designation is in charge of the Order of the Official Reviewers of

Accounts, which proceeds to the appointment the joint solicitation of the societies

interested.

Article 117-E

Form and advertising

CHAIR OF THE COUNCIL OF MINISTERS

23

The participation of companies based in Portugal in a merger

Cross-border is subject to the requirements of form, as well as the registration and the

publication set out for internal mergers, without prejudice to the provisions of the

article 117-H.

Article 117-F

Approval of the merger project

1-The joint project for cross-border merger must be approved by the

general assembly of each of the participating societies.

2-Applying to the approval of the joint project of merger by the general assemblies

of the participating companies with registered office in Portugal the provisions of the Articles

102. and 103.

3-A General assembly of any of the participating companies may

subordinate the realization of the cross-border merger to the condition of being

approved in that assembly the provisions relating to the participation of the

workers in society resulting from cross-border merger.

Article 117-G

Prior certificate and registration of the merger

1-The competent authorities for the control of the legality of mergers

cross-border are the services of the commercial register.

2-The monitoring of the legality provided for in the preceding paragraph covers the practice of the

following acts:

a) The issuance of a prior certificate, in relation to each of the

participating companies that have registered office in Portugal and at their request,

that proves the performance of the previous acts and formalities to the

merger;

b) The surveillance of the legality of the cross-border merger within its

CHAIR OF THE COUNCIL OF MINISTERS

24

register, as long as the merged company has its registered office in

Portugal.

3-A issue of certificate referred to in para. a) from the previous number assumes the

verification of the fulfilment of the formalities prior to the merger, in the face of the

applicable legal provisions, of the joint project registered and published and of the

reports from the organs of the society and the experts that, in the case, should exist.

4-The control referred to in paragraph b) of paragraph 2 is made, in particular, by

verification of the following elements:

a) Approval of the common project for cross-border merger, in the same

terms, by the societies in it participating;

b) Fixing of the provisions relating to the participation of employees, in

compliance with the applicable legal rules, in cases where the

same is required.

5-For the purposes of the control referred to in paragraph b ) of paragraph 2, the application for registration of the

cross-border merger should be submitted to the service of the commercial register

by the participating companies, accompanied by the certificate referred to in para.

a) of the same number and of the joint cross-border merger project

approved by the general meeting, within six months after the issuance of the

certificate.

Article 117-H

Effects of the registration of cross-border merger

With the enrollment of the cross-border merger in the commercial register, the

effects provided for in Article 112.

Article 117-I

CHAIR OF THE COUNCIL OF MINISTERS

25

Incorporation of society wholly owned by another

1-The provisions of this Section shall apply, with the exceptions set out in the

following numbers, to the incorporation by a society of another of whose

quotas or shares that is the sole proprietor, directly or by persons who

hold those holdings on account of her but on her own behalf.

2-They shall not apply in this case the provisions relating to the exchange of shareholdings

social nor to the expert reports of the incorporated society and the partners of the

embedding society does not become partners of the embattled society.

3-It is not mandatory in these cases the approval of the joint merger project

by the general assemblies of the incorporated societies, and may also be

dispensed with such approval by the general meeting of the embattled society

provided that they cumulatively check the requirements set out in paragraph 3

of Article 116 para.

Article 117-J

Merger by acquisition tendant to the total domain

In cases where the incorporated company possesses quotas or shares

corresponding to at least 90% of the capital of incorporated societies

carry out a cross-border merger by acquisition, the expert reports well

how the documents necessary for the surveillance are always required

even in cases where the legislation regulating the embodding society or

embedders with headquarters in another state dispense these

requirements in acquisitions aimed at total dominance.

Article 117-L

CHAIR OF THE COUNCIL OF MINISTERS

26

Validity of the merger

The merger that has already begun to produce effects under Article 117-

H cannot be declared null ".

Article 29.

Change to the Code of the Commercial Register

Articles 3 and 67 of the Commercial Registration Code, approved by the Decree-Law n.

403/86, of December 3, with the amendments introduced by the Decrees-Laws 7/88,

of January 15, 349/89, of October 13, 238/91, of July 2, 31/93, of 12 of

February, 267/93, of July 31, 216/94, of August 20, 328/95, of December 9,

257/96, of December 31, 368/98, of November 23, 172/99, of May 20, 198/99,

of June 8, 375-A/99, of September 20, 410/99, of October 15, 533/99, of 11 of

December, 273/2001, of October 13, 323/2001, of December 17, 107/2003, of 4

of June, 53/2004, of March 18, 70/2004, of March 25, 2/2005, of January 4,

35/2005, of February 17, 111/2005, of July 8, 76-A/2006, of March 29, and

8/2007, of January 17, shall be replaced by the following:

" Article 3.

[...]

1-Are subject to registration the following facts relating to commercial companies

and civil societies in commercial form:

a ) [...];

b ) [...];

c ) [...];

d ) [...];

. and ) [...];

f ) [...];

CHAIR OF THE COUNCIL OF MINISTERS

27

g ) [...];

h ) [...];

i ) [...];

j ) [...];

l ) [...];

m ) [...];

n ) [...];

the ) [...];

p ) The project for internal or cross-border merger and the fission project

of societies;

q ) [...].;

r ) The prolongation, internal or cross-border merger, spin-off, processing

and dissolution of the societies, as well as the increase, reduction or

reintegration of social capital and any other amendment to the contract

of society;

s ) [...];

t ) [...];

u ) [...];

v ) [...];

x ) [...];

z ) [...].

2-[...].

3-[...].

Article 67-The

Registration of the merger

1-The registration of internal merger in the incorporated entity or the registration of the new

entity resulting from the internal merger determines the officiating achievement of the record

CHAIR OF THE COUNCIL OF MINISTERS

28

of the merger in the entities incorporated or merged into the new entity.

2-In the case of the registration of the cross-border merger applies the provisions of the number

previous to the participating companies in the merger that are based in territory

national.

3-The service carrying out the cross-border merger registration notifies that fact and

of the consequent start of production of effects of the merger the registration services

competent of the Member States of the European Union where they are

seated participating societies.

4-A reception by any service of commercial registration of notification of the beginning

of the production of cross-border merger effects, carried out by service of

competent registration of Member State of the European Union, determines the

officiating achievement of the registration of cross-border merger in societies

participants in the merger that are seated on national territory. "

Article 30.

Addition to the Code of Commercial Registration

It is added to the Commercial Registration Code, approved by the Decree-Law No. 403/86, 3 of

December, with the amendments introduced by the Decrees-Laws No 7/88 of January 15,

349/89, of October 13, 238/91, of July 2, 31/93, of February 12, 267/93, of

July 31, 216/94, of August 20, 328/95, of December 9, 257/96, of 31 of

December, 368/98, of November 23, 172/99, of May 20, 198/99, of June 8,

375-A/99, of September 20, 410/99, of October 15, 533/99, of December 11,

273/2001, of October 13, 323/2001, of December 17, 107/2003, of June 4,

53/2004, of March 18, 70/2004, of March 25, 2/2005, of January 4, 35/2005, of

February 17, 111/2005, of July 8, 76-A/2006, of March 29 and 8/2007, of 17 of

January, Article 74-A, with the following wording:

CHAIR OF THE COUNCIL OF MINISTERS

29

" Article 74.

Prior certificate to cross-border merger

1-A issuance of the certificate or certificates proving compliance

of the acts and formalities prior to the cross-border merger, concerning the

society or participating societies with registered office in national territory,

may be requested, after the registration of the respective project, in any

registration service with competence for the practice of acts of registration

commercial.

2-The application for issuance of the certificate provided for in the preceding paragraph shall be

instructed with the merger project and the reports of social bodies and of

experts who, in the case, should exist.

3-A presentation of the documents referred to in the preceding paragraph is waived

whenever they find themselves shelved in national registration service. "

Article 31.

Entry into force

This Law shall come into force 30 days after its publication.

Seen and approved in Council of Ministers of October 30, 2008

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs