Key Benefits:
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