Key Benefits:
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PROPOSED LAW NO. 42 /XII
Exhibition of Motives
In the framework of the Economic and Financial Assistance Programme for Portugal, arising from the
agreements concluded between the Portuguese State, the European Union, the Monetary Fund
International and the European Central Bank is predicted, with the aim of rationalizing the
public charges, that the creation of new foundations is the subject of strict control and
that a legal regime for its creation, operation, monitoring, be adopted,
reporting, assessment of performance and extinction.
In line with the Economic and Financial Assistance Programme for Portugal, the nineteenth
Constitutional government acknowledges, in its programme, the urgency of the reduction of the " State
parallel ", usually identified with institutes, foundations, public entities
business and public companies at the level of central, regional and local administration.
The arbitrary use by the State, at its various levels, of the fundational institute has by
times led to the withdrawal of public entities from the budgetary perimeter and the perversion of the
nature and logic of the foundations, which has caused serious damage to the foundational principle,
which is a noble principle gutted in the altruistic act of disposition of a heritage to the
pursuit of the purposes of social interest.
On the other hand, the Court of Auditors, in the context of an audit of the service of
recognition of foundations, approved, on January 27, 2011, a report that
identifies a set of embarrassments that lack solution.
The Court of Auditors emphasized the difficulty in identifying with rigor the universe
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current fundational, in particular the relative to the state's participation in law foundations
private, the inconvenience of the existence of diverse entities responsible for the
recognition of founders of private law and the non-existence of an activity
systematic monitoring and control of the foundational ones, recommending the
promotion of legislative procedures with a view to the approval of a legal regime
framework for foundations, whether private or public, what attack and resolve frailties
pointed out.
It was in this general framework that the nineteenth Government has already begun acting, presenting a
proposed law that launched a census to foundations.
Thus, Law No. 1/2012 of January 3 mandated the realization of a census directed at the
foundations, national or foreign, to pursue their purposes on national territory,
with a view to assessing the respective cost / benefit and financial viability and decide on the
your maintenance or extinction, on the continuation, reduction or cessation of supports
financial granted, as well as on the maintenance or cancellation of the status of
public utility.
This initiative has already triggered a process of surveying and characterizing reality
fundational, justifying now the presentation by the Government of a new regime
legal of the foundations that concretize the objectives of its Programme and comply with the
commitments arising from the Economic and Financial Assistance Program to Portugal.
The approval of a framework law of the foundations presupposes the introduction of some
amendments to the chapter of the Civil Code regulating these entities, with the evident
concern, however, to do so to the extent of the strictly necessary.
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It is what makes the present proposal, available still on the transitional arrangements for the
suitability of the current situation to the new reality that is intended to regulate.
In that sense, a six-month period for organic and organic suitability is established.
statues that prove to be mandatory, provided that they are not contrary to the express will
of the founder, as well as for the confirmation of the public utility statutes that have
been the subject of administrative allocation.
The framework law obeys a central concern, which is to return the fusing scheme
to its original altruistic nature.
It is in that sense that clear rules should be established to prevent abuses in the use of the
fundational institute, which becomes exclusive to the foundations recognized in the framework of the
new regime the term foundation in the respective legal denomination and which is seeking a
evident separation between the private institution of foundations and its institution by the state,
in this case with the assumed aim of putting a brake on the proliferation of the "parallel state".
The second major concern is to create strict control mechanisms and a regime
more demanding, for all the situations in which the use of money is concerned
public, either directly or by the benefits arising from the public utility, the
same time as it opens up space to autoregulation, encouraging code approval
of conduct.
The framework law is systematized in three headings: general provisions, foundations
private and public foundations.
Title I contains the general provisions applicable to all types of foundations, regulating
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the form of acquiring legal personality by the foundations; formulating the prohibition of
use of the fundational status to harm heritage creditors; subjecting the
foundations to the fulfillment of a set of transparency obligations; introducing
limits on expenditure on staff and administration, on the foundations that
receive public supports or have tax benefits; prohibiting the disposal of goods that
they integrate the initial heritage of foundations and that they review of special significance for the
respective ends.
Title II, relating to private foundations, contains general provisions relating to nature,
object, creation and regime, to the processes of recognition and acquisition of the status of
public utility, the organization and modification, merger and extinction of private foundations.
The master's trave of the regime is, of course, the primed of respect pala will of the
founder.
Another relevant aspect is the purpose of, while maintaining the recognition regime
administrative, promote transparency and independent scrutiny on the
procedures of the Administration, for the purpose of instituting a Board
ungovernmentalized that accompanies and issues opinions on all the activity of the
Administration in the matter of foundations.
Salient to the prediction of clear rules as to: the role of public entities in the creation,
supervision and control of the foundations; to the recognition procedure; to applications for
acquisition of the status of public utility, subject to a three year grace period of
effective and relevant functioning; to the organization and responsibility of organ holders;
the streamlining and simplification of recognition and extinction procedures.
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To compatibilize the general regime of the framework law with the legislation currently in force, and
taking into consideration the specificities of the universe of the foundations of solidarity
social, the foundations of cooperation for the development and foundations that have the
purpose of creating private higher education institutions, rules are provided for
specific to each of these situations.
Title III, relating to public foundations, establishes the scheme applicable to foundations
public, whether in public law or private law, which are generally subject to the
regime of public legal persons, specifically the framework law of public institutes,
resonating the specificities of regional and local public foundations.
It is further envisaged that the State, Autonomous Regions, local authorities, the other persons
Autonomous administration collectives and the remaining public collective people stay
prevented from creating or participating in new public foundations of private law.
The public foundations of private law already created and recognized become subject to the scheme
of the public foundations of public law, with some specificities. With these measures
aims to staunch the multiplication of the "parallel state", as referred to in the Programme of the
Government, and submit to a stricter control the creation of new foundations by
of the State, Autonomous Regions, local authorities, other collective persons of the
autonomous administration and too many public collective people.
Finally, it should be reflected that the framework law does not apply to higher education institutions.
public provided for in Chapter VI of Title III of the Legal Regime of Institutions of
Higher Education and the Agency for Evaluation and Accreditation of Higher Education, entity
independent and whose statutes are defined in a diploma of their own in the framework of that
Legal Regime.
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Refer, too, that opens an exception to the exclusive of the use of the foundation denomination
for the Foundation for Science and Technology, I.P., which is not a true foundation, but
whose denomination is justified in a framework of international relationship.
The fixation of the values referring to the relevant annual earnings for the purpose of
submission of the accounts of the foundations the external audit and the amount of the appropriation
sufficient equity for the purposes of recognition of private foundations is remitted
to portaria, in order to avoid its downturn over time, being intent of the
Government that at the initial time these values are, respectively, € 2000000 (two
million euros) and of € 250000 (two hundred and fifty thousand euros).
The hearing of the self-governing bodies of the Autonomous Regions of the Autonomous regions was promoted
National Association of Portuguese Municipalities and the Portuguese Centre for Fundamenities.
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposal for a law:
Article 1.
Object
This Law shall adopt the framework law of the foundations and amend the Civil Code, approved by the
Decree-Law No. 47344 of November 25, 1966.
Article 2.
Approval of the framework law of foundations
It is hereby approved in annex to this Act, of which it is an integral part, the framework law of the
foundations.
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Article 3.
Amendment to the Civil Code
Articles 158, 162, 166, 185, 188, 191, 192, 193 and 194, 193, 193 and 194 of the Code
Civil, approved by the Decree-Law No. 47344 of November 25, 1966, pass to
next essay:
" Article 158.
[...]
1-[...].
2-The foundations referred to in the previous article acquire legal personality
by recognition, which is individual and the competence of the authority
administrative.
Article 162.
[...]
The statutes of the legal person shall designate the respective bodies, among them
a collegial body of administration made up of an odd number of
holders of which one will be the president, and a supervisory body, which may
be made up of a single tax or a unique number of holders, of the
which one will be the president.
Article 166.
Advertising
1-They shall apply to legal persons regulated in this chapter the provisions
legal relating to commercial companies, in regard to the publication of the
respective constitution, headquarters, statutes, composition of social bodies and
still reports and annual accounts, duly approved, as well as the
opinions of the respective supervisory bodies.
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2-The act of constitution, the statutes and their amendments do not produce
effects with respect to third parties as long as they are not published in the terms
of the previous number.
Article 168.
Form and communication
1-[...].
2-[...].
3-[ Revoked ].
Article 185.
[...]
1-The foundations aim to pursue the purposes of social interest, and may be
instituted by act between living or by will.
2-[ Previous Article No 3 ].
3-[ Previous Article No 4 ].
4-At the act of institution of the foundation, when it consists of public scripture, well
as, in any case, the statutes and their amendments, the
provisions of Article 166.
Article 188.
Recognition
1-The recognition must be required by the institutor, his heirs or
tested executors, within a maximum of 180 days from the date of
institution of the foundation, or be officiously promoted by the entity
competent.
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2-The recognition matters the acquisition, by the foundation, of the goods and rights
that the act of institution assigns to you.
3-The recognition can be denied:
a) If the purposes of the foundation are not considered to be of social interest
by the competent entity, specifically if they take advantage of the
institutor or his family or to a restricted universe of beneficiaries
with them related;
b) If the affected heritage is insufficient or unsuitable,
specifically if it is burdening with charges that they commit
the realization of the statutory purposes or if it does not generate income
sufficient to ensure the achievement of those ends;
c) If the statutes present any discompliance with the law.
4-A competent entity for the recognition will promote the publication in the
official newspaper, at the expense of the foundation, of the recognition decision, of the act
of institution and of the statutes and their amendments, without what such acts do not
produce effects in relation to third parties.
5-[ Previous Article No 3 ].
Article 190.
[...]
1-Ouvida the administration, and also the founder, if it is alive, the entity
competent for the recognition can broaden the end of the foundation,
where the social profitability of the available means advises him.
2-A same entity may yet, after the hearings provided for in the number
previous, assign the foundation a different end:
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a) [ Previous Article (a) of paragraph 1 ];
b) [ Previous Article (b) of paragraph 1 ];
c) [ Previous Article (c) of paragraph 1 ].
3-[ Previous Article No 2 ].
4-There is no place at the change of the end, if the act of institution forbids it or
prescribe the extinction of the foundation.
Article 191.
[...]
1-[...].
2-[...].
3-The foundations can only accept inheritances to the benefit of inventory.
Article 192.
[...]
1-[...].
a) [...];
b) [...];
c) With the closure of the insolvency proceedings, if not
admissible the continuity of the foundation.
2-[...].
a) [...];
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b) When the developed activities demonstrate that the real end does not
coincides with the end provided for in the act of institution;
c) When they have not developed any relevant activity in the
three years precedent.
3-The foundations may still be extinguished by court decision, in action
intended by the Public Prosecutor's Office or by the competent entity for the
recognition:
a) When its end is systematically pursued by means
illicit or immoral;
b) When its existence becomes contrary to public order.
Article 193.
[...]
When any of the extinctive causes provided for in paragraph 1 of the article occur
previous, the administration of the foundation communicates the fact to the competent entity
for recognition, in order to this declare the extinction.
Article 194.
[...]
1-A The extinction of the foundation triggers the opening up of the settlement process
of its heritage, competing with the competent entity for the
recognition to make the arrangements that it judges convenient.
2-In the absence of special arrangements to the contrary, the provisions of the
article 184. "
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Article 4.
Addition to the Civil Code
It is added to the Civil Code, approved by the Decree-Law No. 47344, of November 25 of
1966, Article 190-A, with the following essay:
" Article 190.
Merger
On a proposal from the respective administrations, or in the alternative to the decision
referred to in paragraph 2 of the preceding Article, and after the hearings provided for in paragraph 1 of the
same article, the competent entity for the recognition may determine
the merging of two or more foundations, of analogous purposes, relying on the such non-
opposes the will of the founders. "
Article 5.
Abrogation standard
Articles 1 and 2 of the Decree-Law No. 284/2007 of August 17 are repealed.
Article 6.
Transitional and final standards
1-The amendments to the Civil Code and the provisions of the framework law of the foundations, adopted in
annex to this Law, apply to the private foundations already set up, in the process of
recognition and recognized, unless they are contrary to the will of the
founder, in which case this one prevails.
2-The provisions of the framework law of the foundations, adopted in annex to this Law, shall apply to
public foundations already created and recognized.
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3-Within the maximum period of 60 days after the entry into force of this Law, the services of
competent entity for the recognition must notify the applicants with
pending applications for the decision of the necessary representations to the compliance of the new
scheme arising from the framework law of the foundations, adopted in annex to this Law.
4-Within the maximum period of six months after the entry into force of this Law, the foundations
private persons possessing public utility status, under penalty of expiry of the statute,
and public foundations are obliged to appropriate their denomination, their statutes
and the respective organic to the provisions of the framework law of the foundations, approved in annex to the
this law, without prejudice to the provisions of the final part of paragraph 1.
5-The provisions of this Law shall prevail over the statutes of the foundations referred to in the
previous number that, the deadline mentioned therein, have not been reviewed and
adapted, if necessary.
6-Within the maximum period of six months after the entry into force of this Law, the foundations
private law and public foundations of private law that possess utility status
administratively assigned public are required to apply for the respective
confirmation, under penalty of the respective expiry.
7-Except for the provisions of the previous figures the higher education institutions
public with enhanced autonomy as referred to in Chapter VI of Title III of the Law
n. 62/2007 of September 10 and the Agency for the Evaluation and Accreditation of Teaching
Superior, created by the Decree-Law No. 369/2007 of November 5, to which it is not
applies the framework law of the foundations, approved in annex to this Law.
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8-Exceptions of the provisions of Article 8 (1) of the framework law of the foundations, adopted
in annex to this Law, the Foundation for Science and Technology, I.P., created by the
Decree-Law No. 152/2007 of April 27.
Seen and approved in Council of Ministers of January 26, 2012
The Prime Minister
The Deputy Minister and Parliamentary Affairs
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Attachment
(referred to in Article 2)
Framework Law of Fundaments
Title I
General provisions
Article 1.
Object
1-A present framework law sets out the principles and standards by which they govern
foundations.
2-The standards set out in this Framework Law shall be of imperative application and prevail
on the special standards currently in force, save to the extent that the other
result expressly from the present framework law.
Article 2.
Scope of application
1-A This framework law is applicable to Portuguese foundations and foreign foundations
to develop their purposes in national territory, without prejudice to the provisions of the
these in applicable international law, particularly in the European Convention on the
Recognition of the Legal Personality of International Organizations no
Government, ratified by the Decree of the President of the Republic No 44/91, of 6 of
september, and in Article 5 of this diploma, and with the exclusion of the foundations created
per act of European derivative law.
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2-A This framework law is also applicable to the foundations of social solidarity
covered by the Statute of Particular Social Solidarity Institutions, approved
by Decree-Law No. 119/83 of February 25, amended by the Decrees-Law
n. ºs 386/83, October 15, 9/85, January 9, 89/85, April 1, 402/85, 11
of October, and 29/86, of February 19.
3-The foundations instituted by religious confessions are regulated by the Law of Freedom
Religious, adopted by Law No. 16/2001 of June 22, and by Articles 10 and following
of the Concordata between the Portuguese Republic and the Holy See, ratified by the Decree of the
President of the Republic No 80/2004 of November 16.
Article 3.
Concepts
1-A The foundation is a collective, non-profit-making person endowed with a heritage
sufficient and irrevocably affected to the pursuit of an end of social interest.
2-Are considered purposes of social interest those that translate to the benefit of a
or more categories of distinct people from the founder, their relatives and related, or from
people or entities to it connected by friendship or business relations,
specifically:
a) The assistance to persons with disabilities;
b) The assistance to refugees and emigrants;
c) Assistance for victims of violence;
d) The cooperation for development;
e) The education and vocational training of citizens;
f) The preservation of historical, artistic or cultural heritage;
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g) The prevention and eradication of poverty;
h) The promotion of citizenship and the protection of the rights of man;
i) The promotion of culture;
j) The promotion of social and community integration;
l) The promotion of scientific research and technological development;
m) The promotion of the arts;
n) The promotion of actions of humanitarian support;
o) The promotion of sport or physical well-being;
p) The promotion of the European and international dialogue;
q) The promotion of entrepreneurship, innovation or development
economic, social and cultural;
r) The promotion of employment;
s) The promotion and protection of health and the prevention and control of the disease;
t) The protection of the environment or natural heritage;
u) The protection of citizens in old age and disability and in all situations of lack
or decreased means of subsistence or capacity for the work;
v) The protection of consumers;
x) The protection and support of the family;
z) The protection and support of children and young people;
aa) The resolution of the housing problems of populations;
bb) The fight against any form of unlawful discrimination.
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3-For the purposes of this Framework Law, they shall be considered:
a) "Institution" or "creation", the attribution of heritage means to the future person
fundational collective;
b) "Founder" or "institutor", the entity that carries out the allocation of means
heritage to the future fundable legal person;
c) "Financial support", all and any kind of grant, subsidy, benefit,
aid, aid, sponsorship, compensation, compensation, provision, guarantee,
grant, assignment, payment, donation, participation or financial advantage and
any other support regardless of their nature, designation and
modality, temporary or definitive, including movable property, real estate and other
rights, which are granted by the direct or indirect administration of the State,
Autonomous Regions, local authorities, other legal persons of the
autonomous administration and too many public legal persons;
d) "Incomes", the increases in economic benefits during the period
accounting, in the form of inflows or increases in assets or decreases of
liabilities that result in increases in the equity funds, other than the
related to the contributions of the founders in these funds.
Article 4.
Types of foundations
1-The foundations can take on one of the following types:
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a) "Private Foundations", the foundations created by one or more persons of law
private, in conjunction or not with public legal persons, provided that these,
isolated or jointly, do not detain on the foundation an influence
dominant;
b) "Public Foundations of public law", the foundations created exclusively
by public legal persons, as well as the personalized funds created
exclusively by public legal persons under the framework law of the
Public Institutes, adopted by Law No. 3/2004 of January 15, amended by the
Law No. 51/2005 of August 30 by the Decree-Law No. 200/2006 of 25 of
October, by the Decree-Law No. 105/2007 of April 3, by Law No. 64-A/2008,
of December 31, by the Decree-Law No. 40/2011 of March 22 by the
Resolution of the Assembly of the Republic paragraph 86/2011 of April 11 by the Law
n. 57/2011 of November 28 and by the Decree-Law No. 5/2012 of 17 of
January, henceforth designated by law-framework of public institutes;
c) "Public Foundations of private law", the foundations created by one or more
public legal persons, in conjunction or not with persons of private law,
provided that those, isolated or jointly, hold an influence
dominant over the foundation.
2-It is considered to exist "dominant influence" in the terms of the previous number whenever
exists:
a) Exclusive or majority allocation of the goods that integrate the initial heritage of the
foundation; or
b) Right to designate or impeach the majority of the holders of the organs of
administration or supervision of the foundation.
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3-Should the influence of private law and public law institutions on the
foundation is identical, by virtue of both the criteria referred to in the preceding paragraph, the
foundation takes on private or public nature depending on the qualification it has
been awarded by the institutors in the act of institution.
Article 5.
Foreign foundations
1-A foundation created under a law other than Portuguese intending to proceed
in a stable manner in Portugal your purposes must have a permanent representation in
Portuguese territory, as provided for in the paragraph b) of Article 4 (1) of the Register
National of Collective People, approved by the Decree-Law No. 129/98 of May 13.
2-A The opening of permanent representation depends on prior authorization of the entity
competent for the recognition and presupposes the verification of the constant requirements
of Article 22.
3-The foundations covered by the European Convention on the recognition of
Legal Personality of the non-Governmental International Organizations referred to in the
n Article 2 (1) applies to the scheme laid down therein.
Article 6.
Acquisition of the legal personality
1-The foundations acquire legal personality by the recognition.
2-The recognition of private foundations is individual and competes with the Prime Minister,
with the faculty of delegation.
3-The recognition of public foundations results directly from the act of its creation.
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Article 7.
Defense of the fundational institute
1-The foundations must approve and publicize codes of conduct that self-regulate good
practices, particularly on the strategic participation of the recipients of their
activity, the transparency of their accounts, the conflicts of interest, the
incompatibilities and the limitation on the renewal of its organs, among others.
2-It is essential condition of the recognition of any foundation that the disposition of goods
or values in favour of its heritage is not an act practiced in prejudice to the
creditors.
3-Previously to the recognition, the institutors, their heirs or the performers
testamentees or the appointed administrators in the act of institution declare, in
document of its own and under commitment of honour, that there are no doubts or disputes,
as yet as potential, on the assets assigned to the foundation.
4-A The existence of doubts or litigation, albeit potential, on the assets allocated to the
foundation makes incurres its perpetrators in criminal responsibility for false
statements and determines the immediate revocation of the act of recognition.
5-In case of pauliana imputation, the recognition and all its effects suspend-
if up to the end of the respective court case.
6-The recognition is void, should the Paulian challenge be dismissed by proceeding
sentence transitioned on trial.
Article 8.
Registration
1-A The use of the term foundation in the denomination of legal persons is exclusive to
entities recognized as foundations pursuant to this framework law.
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2-Public foundations compulsorily use acronyms "IP" or "FP" at the end of the
their respective designation, depending on whether they are of public law or private law.
3-Portuguese foundations and foreign foundations that develop their ends in
national territory are subject to registration under the law.
4-The record referred to in the preceding paragraph is shown in a single database, maintained and
made available for public consultation by the Institute of Registries and Notariat, I.P. (IRN,
I.P.).
5-A grant of financial support by the direct or indirect administration of the State,
Autonomous Regions, local authorities, other legal persons of the administration
autonomous and too many public legal persons depends on the indication on the part of the
foundation of the registration number assigned to it in the terms of the numbers
previous.
Article 9.
Transparency
1-Portuguese foundations and foreign foundations that exert their activity in
national territory are bound to:
a) Communicating to the services of the Presidency of the Council of Ministers the composition
of the respective bodies in the 30 days following their designation, modification or
replacement;
b) Refer to the services of the Presidency of the Council of Ministers copy of the
annual reports of accounts and activities, up to 30 days after your approval;
c) Submit the accounts to an external audit;
d) Make permanently available on your page of the internet the following information:
i) Copy of the acts of institution and recognition of the foundation;
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ii) Updated version of the statutes;
iii) Copy of the act of granting the status of public utility, when it is the
case;
iv) Identification of the institutors;
v) Updated composition of the social organs and date of start and term of the
respective mandate;
vi) Identification of the number and nature of the linkage of the collaborators of the
foundation;
vii) Management reports and accounts and opinions of the supervisory body
relating to the last three years;
viii) Reports of activities relating to the same period;
ix) Annual external audit report, when required.
2-Except for the provisions of the paragraph c) from the previous number the foundations whose
annual income will be lower than the value set by porterie of the members of the
Government responsible for finance and the recognition of foundations.
3-In the case of private foundations with status of public utility and foundations
public, are still made permanently available on your page of the internet the
following information:
a) Description of the initial heritage and, where appropriate, of the patrimony affection
by direct or indirect administration of the State, Autonomous Regions, authorities
locals, other people from the autonomous administration and too many legal persons
public, as well as of their current value;
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b) Amount discriminated against financial supports received in the last three years
of the direct and indirect administration of the State, Autonomous Regions, authorities
locals, other legal persons of the autonomous administration and too many people
public collective.
4-The annual report of activities and of accounts must contain clear and sufficient information
on the types and overall amounts of the benefits granted to third parties and the
donations or subsidies received, as well as on the management of the heritage of the
foundation.
5-A information with annual character becomes compulsorily available to the public
departure from April 30 of the year subsequent to that which it relates to.
6-Private foundations are subject to the declarative regime provided for in the Decree-Law
n ° 8/2007 of January 17, which creates the Simplified Business Information (IES),
changed by the by the Decrees-Law No. 116/2008 of July 4, 69-A/2009, of 24 of
march, and 292/2009, of October 13, and to the accounting standards regime for
the entities of the non-profit sector, provided for in the Decree-Law No. 36-A/2011, of 9 of
March.
7-Public foundations are subject to the economic-financial management regime and
patrimonial provided for in the framework law of public institutes, in the terms provided for in the
Title III of this Framework Law.
8-Failure to comply with the provisions of this Article shall prevent access to any supports
financial during the economic year following the one in which the
default and as long as this last.
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Article 10.
Limit of own expenses
1-In the case of private foundations with status of public utility and foundations
public, expenses in personnel and administration may not exceed the following
limits:
a) As for the foundations whose activity consisted predominantly of the concession
of benefits or financial supports to the community, a tenth of its
annual income, owing at least two thirds of these to be spent on
direct pursuit of the statutory purposes;
b) As for the foundations whose activity consists predominantly in sustaining
of own delivery services to the community, two-thirds of its
annual earnings.
2-Failure to comply with the provisions of the preceding paragraph shall determine the expiry of the statute
of public utility that has been assigned to them.
Article 11.
Disposal of goods that integrate the foundation's initial heritage
In the case of private foundations with status of public utility and public foundations, the
disposal of assets from the foundation that have been assigned to it by the founder or
founders, as such specified in the act of institution, and that they review themselves of special
meaning for the purposes of the foundation, it lacks, under penalty of nullity, permission from the
competent entity for the recognition.
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Article 12.
Fate of the goods in the event of extinction
1-In the absence of express provision of the institutor on the fate of the goods in the event of
extinction, in the act of institution, the remaining patrimony after liquidation is delivered to
an association or foundation of analogous purposes, designated according to a criterion of
precedence set by the organs of the foundation or by the competent entity for the
recognition, by this order.
2-In case the designated entity does not accept the donation, another of the analogous purposes is designated,
second the same criterion of precedence.
3-The means of allocation of the remaining heritage provided for in the figures
previous without there has been acceptance, the goods revert in favour of the State.
Article 13.
Advisory Board
1-Within the framework of the Presidency of the Council of Ministers shall operate a Council
Advisory of the Founders, composed of five members, so designated:
a) Three personalities of acknowledged merit, proposals by associations
representative of the foundations and designated by the Prime Minister, one of the
which presides;
b) A representative of the Ministry of Finance and a representative of the Ministry
of Solidarity and Social Security, designated by the respective Ministers.
2-A The designation of the members of the Advisory Board is published in the Journal of the Republic ,
and must be accompanied by the publication of the academic and professional curriculum of each
one of the members.
3-The term of office of the members of the Advisory Board is five years, not renewable and only
cesses with the possession of the new members.
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4-The members of the Advisory Board shall be independent in the performance of their duties
and unremovable.
5-Compete to the Advisory Board:
a) Issue opinion on the administrative acts concerning the foundations;
b) Pronouns on the results of supervisory actions to foundations;
c) Issue opinion on any matter pertaining to the foundations, at the request of the
competent entity for the recognition;
d) Take position, on your initiative, on any matter concerning the foundations
of the competence of the competent entity for the recognition.
6-The members of the Advisory Board are not remunerated, without prejudice to the right to
payment of expenses with the displacements, arising from the duties exercised, in the
expected terms for the generality of workers in public functions.
Title II
Private foundations
Chapter I
General regime
Section I
Nature, object, creation and regime
Article 14.
Nature and object
1-Private foundations are legal persons of private law, with no profit end,
endowed with the goods and economic support necessary for the pursuit of the purposes of
social interest.
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2-Private foundations can aim at the pursuit of any end of social interest.
Article 15.
Creation
1-Private foundations can be created by one or more persons of private law
or by persons of private law with public legal persons, provided that these,
isolated or jointly, do not lay down on the foundation a dominant influence.
2-The foundations of social solidarity are created, exclusively, on the initiative of
private individuals pursuant to the Statute of Private Social Solidarity Institutions
(IPSS), approved by the Decree-Law No. 119/83 of February 25, amended by the
Decrees-Law No 386/83 of October 15, 9/85, January 9, 89/85, April 1,
402/85, of October 11, and 29/86, of February 19.
3-The foundations referred to in the preceding paragraphs are in the terms of civil law.
Article 16.
Participation of public entities
1-A participation of public entities in the creation of private foundations depends on
prior authorization, to which it is granted:
a) By the Government, in the case of State participation;
b) By the Regional Government, in the case of the participation of the Autonomous Regions or
integrated entities in their indirect administration;
c) By the Ministers of Finance and guardian, in the case of the participation of entities
integrated into the indirect administration of the State;
d) By the Municipal Assembly, in the case of the participation of municipalities, in the terms
of the paragraph l) of Article 53 (2) of Law No 169/99 of September 18;
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e) By the general council, general assembly or equivalent body, in the case of
participation of public associations or integrated entities in the
autonomous administration, pursuant to the framework law of public institutes.
2-Under penalty of nullity of the relevant acts and personal responsibility of whom the
has subscribed or authorized, public entities are prevented from practicing or approving,
create or participate in the creation of private foundations whose revenue provenham exclusive
or predominantly of monies from the annual ordinary budget of the entity or
public entities instituidoras or whose initial heritage results exclusive or
predominantly of goods allocated by public entities.
3-Private foundations that benefit from financial supports are subject to surveillance
and control of the competent services of the Ministry of Finance.
Article 17.
Institution and its revocation
1-Private foundations can be instituted by act between living or by will.
2-A institution for acts between living must appear in public scripture and becomes
irrevocable as soon as it is required the recognition or principie the respective
officiating process.
3-To the heirs of the Institutor it is not allowed to revoke the institution, without prejudice to the
willing about the legitimation succession.
4-At the act of institution of the private foundation, when it consists of public scripture, well
as, in any case, the statutes and their amendments, the provisions of the article shall apply.
166. of the Civil Code.
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Article 18.
Act of institution and statutes
1-In the act of institution must the institutor state the end of the foundation and specify the goods
and rights that are assigned to it.
2-In the act of institution or in the statutes must the institutor arrange yet on the
the headquarters, organization and operation of the foundation, regulate the terms of its
processing or extinction and setting the fate of the respective goods.
Article 19.
Statutes lawn by diverse person of the institutor
1-In the absence of statutes laundered by the institutor or insufficiency of them, by constying the
institution of will, it is the executors of this who compete to draw up or
complete them.
2-A The full or partial drafting of the bylaws lies with the competent entity itself
for the recognition of the foundation, when the institutor did not do so and the
institution does not consume testament, or when the testamentary executors do not
wash within the year subsequent to the opening of the succession.
3-In the drafting of the bylaws will be taken into account, as far as possible, the real will
or presumptive of the founder.
Section II
Recognition and status of public utility
Article 20.
Recognition
1-The recognition of private foundations is the competence of the Prime Minister, with
the faculty of delegation, and observe the procedure laid down in the following articles.
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2-The recognition of foundations matters the acquisition of the goods and rights that the act of
institution assigns them.
3-Redear the recognition of the foundation or initiated the respective officious process of
recognition, the institutor, its heirs, the testamentary executors or the
designated administrators in the act of institution have legitimacy to practice acts of
ordinary administration with respect to the assets and rights assigned to the foundation, provided that
such acts are indispensable for their conservation.
4-Up to the recognition, the institutor, his heirs, the testamentary executors or
the appointed administrators in the act of institution respond personnel and severally
by the acts practiced on behalf of the foundation.
Article 21.
Legitimacy to apply for recognition
1-The recognition of private foundations may be required:
a) By the institutor, institutors or their heirs;
b) By the representative of the institutors;
c) By the testamentary executor of the institutor;
d) By the notary who has laundered the act of institution.
2-The recognition must be required within the maximum period of 180 days from the
institution of the foundation or be officiously promoted by the competent entity for
the recognition.
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Article 22.
Request for recognition
1-The recognition procedure starts with the submission of the respective application
and is carried out exclusively through the filling of the electronic form
appropriate and in accordance with the constant indications of the portal of the Presidency of the
Council of Ministers, at the Internet .
2-The form contains, in particular, the following elements:
a) Identification of the applicant and justification of its legitimacy;
b) Documents that prove the institution of the foundation and the identification of the
institutor or instituters and, in the latter case, of the respective contributions to
the heritage of the foundation or for the financing of its activity;
c) Proof of sufficient initial equity endowment;
d) Descriptive memorandum of the end or purposes of the foundation and its areas of acting;
e) Detailed relationship of the assets allocated to the foundation and indication of the donations
assigned to it and, well thus, of the enduring grant contracts, if
exist;
f) Commitment of honour that there are no doubts or disputes about the goods
affections to the foundation;
g) Assessment of the furnishing heritage allocated to the foundation, by the idoneo expert;
h) Bank statement proving the initial pecuniary amount allocated to the
foundation;
i) Certificate of authorization, in accordance with Article 16;
j) Text of the statutes and indication of the date of its publication;
l) An indication of the addresses of the delegations, if they are foreseen;
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m) Indication of the names of the people who integrate or will integrate the organs of the
foundation.
3-Saved in the case of foundations for the purpose of establishment of educational establishments
higher, to which enhanced heritage guarantees may be required, it is presumed that
there is sufficient equity endowment under the terms of the ( c) from the previous number when
the heritage of the foundation is equal to or greater than the value set in the porterium referred to in the
n Article 9 (2).
4-If the initial endowment of the foundation includes real estate must be presented, still, the
following documents:
a) Proof of the matrix situation of each immovable;
b) Proof of the predial situation of each immovable;
c) Proof of renunciation of the exercise of the right of legal preference per part
of the State, Autonomous Regions, municipalities and other public legal persons
or public companies, where applicable;
d) Assessment of real estate by idoneo expert.
5-In the analysis of the application for recognition, the instructor organ may, in the use of its
competence in the matter, request other elements that you understand necessary for the
decision.
6-A The final decision is taken within a maximum of 90 days from the entry of the application for
recognition.
Article 23.
Refusal of recognition
1-Constitutions ground of refusal of recognition the following circumstances:
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a) The lack of the elements referred to in the previous article;
b) The purposes of the foundation are not considered to be of social interest,
particularly if you take advantage of the institutor or your family or a universe
restricted of beneficiaries with them related;
c) The insufficiency of the affected goods for the pursuit of the end or purposes targeted
when there are no fused expectations of insufficient supply of the insufficiency,
particularly if they are burdening with charges that compromise the
fulfilment of the statutory purposes or if they do not generate sufficient income for
guarantee the achievement of those ends;
d) The disconformity of the statutes with the law;
e) The existence of omissions, addictions or impairings affecting the formation and
externalisation of the will of the actors in the act of constitution or in the
documents that should instruct you;
f) The nullity, nullability or ineffectiveness of the act of institution;
g) The existence of doubts or litigation, even if potential, on the assets allocated to the
foundation.
2-A refusal of recognition of the foundation by insufficiency of means provided for in paragraph c)
of the previous number determines:
a) The ineffectiveness of the institution of the foundation, if the institutor is live or the institutor
or instituters are legal persons;
b) The delivery, unless statutory provision to the contrary, of the goods to an association
or foundation of analogous purposes, to be designated by this order:
i) By the institutor in the act of institution;
ii) By the foundation's own organs;
iii) By the competent entity for the recognition.
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Article 24.
Status of public utility
1-Private foundations can acquire the status of public utility by checking themselves,
cumulatively, the following requirements:
a) Develop, not-for-profit, relevant activity in favor of
community in areas of social relief such as the promotion of citizenship and the
human rights, education, culture, science, sport, associativism
young, the protection of children, young people, elderly people, disadvantaged people,
as well as from citizens with special needs, the protection of the
consumers, the protection of the environment and natural heritage, combat
discrimination based on gender, race, ethnicity, religion or in any other
form of legally prohibited discrimination, the eradication of poverty, the
promotion of health or physical well-being, health protection, prevention and
control of disease, entrepreneurship, innovation and development
economic and the preservation of cultural heritage;
b) They are regularly constituted and are governed by statutes drawn up in
compliance with the law;
c) Do not develop, by main title, economic activities in competition
with other entities that cannot benefit from the status of usefulness
public;
d) Possess the appropriate human and material means in compliance with the
statutory objectives.
2-Private foundations can only apply for the status of public utility at the end of three
years of effective and relevant functioning, save if the institutor or instituters
majority already possesses status of public utility, in which case such status may
be immediately requested.
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Article 25.
Granting of the status of public utility
1-A The granting of the status of public utility, as well as its cancellation, is from the
competence of the Prime Minister, with the faculty of delegation.
2-The application for the granting of the status of public utility is carried out exclusively
by filling in the appropriate electronic form and in accordance with the
referrals listed in the portal of the Presidency of the Council of Ministers, in the Internet .
3-The form contains, in particular, the following elements:
a) The identification of the applicant foundation;
b) The purposes of public utility in function of which it is organized;
c) The fundamentals that, in their view, support the granting of the status of
public utility;
d) The possible provision of the consent for the consultation of the respective situation
Tax or regularized contributory, pursuant to Article 4 (2) of the
Decree-Law No 114/2007 of April 19;
e) Name and quality of the person responsible for filling the application.
4-The application is undue in the absence of any of the requirements set out in the preceding article.
5-The status of public utility is granted by the five-year term, which may be
renovated, by equal and successive periods, upon submission of a request for
renewal.
6-The status of public utility cessa:
a) With the extinction of the foundation;
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b) With the expiry of the status of public utility;
c) By decision of the competent entity for the concession, if it has left itself
check some of the assumptions of this;
d) For the serious or repeated violation of the duties that are legally
taxes.
Section III
Organization
Article 26.
Organs
1-Constitutions compulsory organs of the private foundations:
a) A body of administration, to whom it competes in the management of the heritage of the
foundation, as well as deliberating on proposed amendments to the statutes, of
modification and extinction of the foundation;
b) A directional or executive body, with current management functions;
c) A supervisory body, to whom it competes in the supervision of management and accounts
of the foundation.
2-The foundations may still have a board of founders or of curators, with the
mission to ensure compliance with the foundation's statutes and the respect of the will
of the founder or founders.
3-The mandates of the members of the organs of the foundation may not be victorious, except
those of the posts expressly created by the founder or founders with that nature
in the act of institution.
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Article 27.
Assignment and composition
1-The statutes of the foundation designate the respective bodies, avoiding the overlapping of
competencies, whether these are mandatory or optional.
2-The body of administration consists of an odd number of holders, of which a
will be the president, and he may be part of the executive body.
3-The supervisory body may be constituted by a single supervisor or by a board
tax compriseof an odd number of holders, of which one will be the chairman.
Article 28.
Representation
1-A The representation of the foundation, in judgement and outside it, is up to whom the statutes
determine or, in the lack of statutory provision, to the administration or to whom it
is assigned.
2-A designation of representatives on the part of the administration is only objectiable to third parties
when it proves to be that these knew her.
Article 29.
Obligations and responsibility of the holders of the organs
1-The obligations and responsibility of the holders of the organs of the foundations to with
these are set out in the respective statutes, applying, in the lack of provisions
statutorily, the rules of the mandate with the necessary adaptations.
2-The holders of the organs of the foundation shall not be allowed to exercise the right to vote in the
deliberations taken in meetings in which they are present and are responsible for the
damage from them arising, save if housed in ata to their dissent.
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Article 30.
Civil liability of foundations
The foundations respond civilly by the acts or omissions of their representatives,
agents or mandators on the same terms in which the principals respond by the acts
or omissions of its commissioners.
Section IV
Modification, merger and extinction
Article 31.
Modification of the statutes
The statutes of the foundation can at all time be modified by the entity
competent for the recognition, on a proposal from the respective administration, provided
that there is no essential change from the end of the institution and if it does not contravene the will of the
founder.
Article 32.
Transformation
1-Ouvida the administration, and also the founder, if it is alive, the competent entity for
recognition can broaden the end of the foundation, whenever social profitability
of the available means advises him.
2-A the same entity may still, after the hearings provided for in the preceding paragraph, assign
to the foundation a different end:
a) When it has been entirely filled the end for it has been instituted or this
if it has made it impossible;
b) When the end of the institution cede to rewear social interest;
c) When the heritage becomes insufficient for the realization of the intended end.
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3-The new end should approach, in whatever way possible, of the end fixed by the founder.
4-There is no place for change of purpose, if the act of institution forbids it or prescribes it
extinguishing of the foundation.
Article 33.
Merger
On a proposal from the respective administrations, or in the alternative to the decision referred to in paragraph 2
of the preceding article, and after the hearings provided for in paragraph 1 of the same article, the entity
competent for the recognition can determine the merger of two or more foundations, of
analogous purposes, counting that this does not object to the will of the founder.
Article 34.
Charge detrimental to the purposes of the foundation
1-Extending the heritage of the burdensome foundation with charges whose compliance
impossibile or gravely hinder the filling of the institutional end, may the
competent entity for the recognition, on a proposal from the administration, to suppress,
to reduce or commute these charges, heard the founder, if it is alive.
2-If, however, the charge has been an essential reason of the institution, it may the same entity
consider their fulfillment as an end of the foundation, or incorporate the foundation nother
legal person capable of meeting the burden at the expense of the incorporated heritage, without
prejudice to its own purposes.
3-The foundations can only accept inheritances to the benefit of inventory.
Article 35.
Causes of extinction
1-The foundations extinguish:
a) By the course of the period, if they have been constituted temporarily;
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b) By the verification of any other extinguishing cause provided for in the act of institution;
c) With the closure of the insolvency proceedings, if it is not admissible to
continuity of the foundation.
2-The foundations may be extinguished by the competent entity for the recognition:
a) When its end has been exhausted or if there is become impossible;
b) When the developed activities demonstrate that the real end does not coincide
with the end provided for in the act of institution;
c) When they have not developed any relevant activity in the three years
precedents.
3-The foundations may still be extinguished by court decision, in action brought by the
Prosecutor's Office or by the competent entity for the recognition:
a) When their end is systematically pursued by illicit means or
immorals;
b) When its existence becomes contrary to public order.
Article 36.
Declaration of extinction
When any of the extinctive causes provided for in paragraph 1 of the preceding article occur, the
administration of the foundation communicates the fact to the competent entity for the recognition,
in order to this declare the extinction.
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Article 37.
Effects of extinction
1-A The extinction of the foundation triggers the opening of the process of liquidation of its
heritage, competing with the competent entity for the recognition to take the
providences that judge convenient.
2-In the absence of special arrangements to the contrary, the provisions of Article 184 shall apply.
of the Civil Code.
Article 38.
Requests for modification of statutes, transformation and extinction
1-The applications for the authorization of modification of statutes, transformation and extinction of
private foundations are carried out exclusively through the filling of the
appropriate electronic form and in accordance with the indicated indications of the portal
of the Presidency of the Council of Ministers, at the Internet .
2-The applications for the authorization of modification of statutes and transformation of the foundation
are instructed with the following elements:
a) Copy of the by-laws prevailing on the date;
b) Copy of the internal regulation, if it exists;
c) Copy of the minutes of the meeting in which the proposed modification has been deliberated
of statutes or of the transformation of the foundation;
d) Descriptive memorandum of the reasons that led to the deliberation of tender
of statutory modification or of transformation of the foundation.
3-The application for declaration of extinction is instructed with the following elements:
a) Copy of the by-laws prevailing on the date;
b) Copy of the internal regulation, if it exists;
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c) Copy of the minutes of the meeting in which the proposal for a declaration was deliberated
of extinction of the foundation
d) Supporting documentation of the activity developed by the foundation during the
its existence;
e) Proof of compliance by the foundation of all legal obligations,
particularly tax and contributory, to which such entes are adstry;
f) Descriptive report of the current evolution and heritage situation of the foundation.
4-Final decisions are taken within a maximum of 60 days from the entry of the
requests.
Chapter II
Special regimes
Section I
Foundations of social solidarity
Article 39.
Nature, object and applicable regime
1-The foundations of social solidarity are private foundations and continue,
inter alia, any of the objectives set out in the paragraphs a) , e) , g) , j) , s) , u) , x) , z) and
aa ) of Article 3 (2).
2-The foundations of social solidarity shall apply the provisions of the previous chapter, with the
specificities set out in this section.
3-Applies to the foundations of social solidarity the Status of Institutions Particular of
Social Solidarity (IPSS), approved by the Decree-Law No. 119/83 of February 25,
changed by Decrees-Law No 386/83 of October 15, 9/85, of January 9, 89/85,
of April 1, 402/85, of October 11, and 29/86, of February 19.
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4-The foundations of social solidarity are also subject, depending on the cases, to the
Regulation of Register of Particular Social Solidarity Institutions of the Scope
of Social Security System Social Action and the Regulation of the Register of
Private Institutions of Solidarity from the Scope of the Ministry of Education,
provided for in Article 7 of the Decree-Law No 119/83 of February 25, amended by the
Decrees-Law No 386/83 of October 15, 9/85, January 9, 89/85, April 1,
402/85, of October 11, and 29/86, of February 19, and approved, respectively,
by the Portaria No. 139/2007 of June 29 and by the Portaria No. 860/91 of August 20.
5-On the foundations of social solidarity with main or exclusive purposes of promotion and
health protection is still applicable the provisions of the Portaria No 466/86 of August 25.
Article 40.
Recognition
1-The recognition of the foundations of social solidarity is the competence of the
Prime Minister, with the faculty of delegation.
2-The recognition procedure starts with an application submitted, for that
effect, in the competent departments of the Ministry of Solidarity and Social Security.
3-The application for recognition is instructed with the elements referred to in Article 22.
4-Within 45 days, the relevant departments of the Ministry of Solidarity and
Social Security emit opinion on the request for recognition.
5-In the case of the foundations of social solidarity with main or exclusive purposes of
promotion and protection of health and social solidarity foundations of the scope of the
Ministry of Education, is still issued opinion binding, within 15 days, by the
competent services of the Ministry of Health or the Ministry of Education and of the
Science, depending on the cases, which refer you to the competent departments of the Ministry of
Solidarity and Social Security.
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6-Within 45 days or, dealing with foundations of social solidarity with purposes
main or exclusive of promotion and protection of health or of foundations of
social solidarity of the scope of the Ministry of Education, 60 days from the
presentation of the application for recognition, the competent departments of the Ministry of
Solidarity and Social Security refers to the competent entity for the
recognition of the respective process, accompanied by final opinion.
7-The opinions referred to in the preceding paragraphs are mandatory and binding for the
competent entity for the recognition, constituting its lack of ground of
refusal of recognition.
Article 41.
Monitoring and surveillance
The competent entity for the recognition, the competent departments of the Ministry of
Solidarity and Social Security and the Inspectorate-General of Finance can order the
conduct of surveys, syndications, inspections and audits of the foundations of solidarity
social.
Section II
Foundations of development cooperation
Article 42.
Nature, object and applicable regime
1-The foundations of development cooperation are private foundations and
pursue some of the objectives set out in Law No. 66/98 of October 14.
2-The foundations of development cooperation shall apply to the provisions of the Chapter
previous, with the specificities of this section.
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3-Applies to the foundations of cooperation for development the Statute of the
Non-Governmental Organizations of Development (ONGD), defined by the Law
n. 66/98, of October 14.
Article 43.
Recognition
1-The recognition of the foundations of development cooperation is of the
competence of the Prime Minister, with the faculty of delegation.
2-The recognition procedure starts with an application submitted, for that
effect, in the competent departments of the Ministry of Foreign Affairs.
3-The application for recognition is instructed with the elements referred to in Article 22,
as well as with the following elements:
a) Constitutive act;
b) Statutes;
c) Plan of activities for the current year;
d) Means of financing.
4-The competent services of the Ministry of Foreign Affairs issue opinion
on the application for recognition and refer it along with the process to the entity
competent for the recognition, within 45 days of the date of
presentation of the application for recognition.
5-The opinion referred to in the preceding paragraph shall be binding and binding on the entity
competent for recognition, constituting its lack of foundation of the refusal of the
recognition.
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Article 44.
Monitoring and surveillance
The competent entity for the recognition, the competent departments of the Ministry of
Foreign Affairs and the Inspectorate-General of Finance can order the realization of
surveys, syndications, inspections and audits of the foundations of cooperation for the
development.
Section III
Foundations for the establishment of private higher education institutions
Article 45.
Nature, object and applicable regime
1-The foundations instituted for the establishment of private higher education institutions
are private foundations and pursue some of the objectives set out in Article 2 of the
Law No. 62/2007 of September 10.
2-The foundations for the establishment of private higher education institutions shall apply
the provisions of the previous chapter, with the specificities of this section.
3-Applies to the foundations for the establishment of private higher education institutions o
Legal Regime of Higher Education Institutions, passed by Law No. 62/2007, of
September 10.
Article 46.
Recognition
1-The recognition of foundations for the establishment of higher education institutions
private is within the competence of the Prime Minister, with the faculty of delegation.
2-The recognition procedure starts with an application submitted, for that
effect, in the competent departments of the Ministry of Education and Science.
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3-The application for recognition is instructed with the elements referred to in Article 22.
4-The competent departments of the Ministry of Education and Science emit opinion on
the application for recognition and refer it along with the process to the entity
competent for the recognition, within 180 days of the date of
presentation of the application for recognition.
5-The opinion referred to in the preceding paragraph shall be binding and binding on the entity
competent for recognition, constituting its lack of ground of refusal of the
recognition.
Article 47.
Monitoring and surveillance
The competent entity for the recognition, the competent departments of the Ministry of
Education and Science and the Inspectorate-General of Finance can order the realization of
surveys, syndications, inspections and audits of the foundations for the creation of
private higher education institutions.
Title III
Public foundations
Chapter I
General provisions
Article 48.
Principles
Public foundations, of public law or private law, are subject to:
a) To the constitutional principles of administrative law;
b) To the general principles of administrative activity;
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c) To the regime of impediments and suspicions of the holders of the organs and agents of the
Administration, including the incompatibilities provided for in Articles 78 and 79.
of the Status of Posting;
d) To the rules of public procurement; and
e) To the principles of advertising, competition and non-discrimination in
matter of recruitment of personnel.
Article 49.
Nature and object
1-Public foundations are legal persons of public law, with no profit end,
endowed with organs and own heritage and administrative and financial autonomy.
2-Public foundations may have an end to the promotion of any public interests
of a social, cultural, artistic or other similar nature.
Article 50.
Creation and constitutive act
1-Public foundations can only be created by the State, by the Autonomous Regions or
by the municipalities, either isolated or jointly.
2-State or regional public foundations are instituted by legislative diploma.
3-Municipal public foundations are instituted by deliberation of the Assembly
Municipal, applying, with the necessary adaptations, the willing as to the creation of
municipal-owned enterprises in the legal regime of the local business sector, approved
by Law No. 53-F/2006 of December 29, amended by the Leis n. ºs 67-A/2007, 31 of
December, 64-A/2008, of December 31, and 55/2011, of November 15.
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Article 51.
Statutes
1-The statutes of public foundations are approved in the constitutive act of the foundation and
regulate the following aspects:
a) Name, seat, assignments, object and recipients of the foundation;
b) Initial financial allocation and mode of funding of the foundation;
c) Organs, their competence, organization and functioning;
d) Ministry of tutelage, in the case of the state foundations.
2-Public foundations may not exercise activities outside of their assignments nor
dedicate its resources to the various purposes of those that have been committed to it.
Article 52.
Legal regime
1-Public foundations shall be governed by the standards set out in this Framework Law and
too much legislation applicable to public legal persons, as well as by their respective
statutes and internal regulations.
2-Are, specifically, applicable to public foundations, whatever the
particularities of its statutes and its management regime:
a) The Code of Administrative Procedure, with respect to the activity of
public management, involving the exercise of powers of authority, the management of
public function or the public domain, or the application of other regimes
juric-administratives;
b) The legal regime applicable to employees performing public duties;
c) The regime of the financial and heritage administration of the State;
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d) The scheme of the realization of public expenditure and public procurement;
e) The regime of the incompatibilities of public office;
f) The regime of the civil liability of the State;
g) The laws of administrative litigation, when they are in cause acts and contracts
of an administrative nature;
h) The regime of jurisdiction and financial control of the Court of Auditors and of the
Inspection-General of Finance.
Article 53.
Organs and services
1-State public foundations organise themselves and have services in the terms and
conditions laid down in the framework law of public institutes.
2-The regional and local public foundations apply the provisions of the framework law of the institutes
public, with the necessary adaptations and with the following specificities:
a) The board of directors is the body responsible for the definition, orientation and
execution of the general acting lines of the foundation, as well as the direction of the
respects services, in accordance with the law and with the guidelines of the
regional or local bodies, depending on the cases;
b) The members of the board of directors are assigned by the executive bodies
regional or local, depending on the cases;
c) The dispatching of designation of the members of the board of directors, duly
reasoned, is published, depending on the cases, in the Official Journal of the Region
Autonomous respective or in the Municipal Bulletin respective, together with a
note on the academic and professional curriculum of the nominees;
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d) It is incumbent on the board of directors, within the framework of the foundation's guidance and management,
draw up opinions, studies and information that are requested by the
Regional Government or by the City Hall, depending on the cases;
e) It is incumbent upon the chairman of the board to ensure the relations with the
tutelage organs, the regional bodies, local bodies and too many organisms
public;
f) The single tax officer is appointed, from among official reviewers of accounts or societies
of official auditors of accounts;
g) The mandate of the single supervisor has the duration of five years and is renewable one
only single time.
Article 54.
Economic-financial management
Public foundations become subject to the economic-financial management regime and
heritage provided for in the framework law of public institutes.
Article 55.
Monitoring, performance evaluation and surveillance
1-State public foundations are subject to the powers of oversight and of
tutelage of the instituidora entity, under the terms and conditions laid down in the framework law of the
public institutes.
2-The power of oversight and administrative tutoring in state public foundations
is exercised by the public entity that most contributes to its financing or that
has the right to designate or impeach the largest number of organ holders of
administration or surveillance.
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3-Checking an equal contribution to the funding of a foundation or
an equality as to the greater number of designation or ousting rights, the
powers referred to in the preceding paragraph shall be jointly exercised by the entities
public who find themselves in equal circumstances.
4-A the instituting entity and the Inspectorate-General of Finance can order the realization of
enquiries, syndications, inspections and audits of state public foundations and
regional.
5-A the instituidora entity, the Directorate General of Local Authorities and the Inspectorate-General of
Finance can order the carrying out of surveys, syndications, inspections and audits
to local public foundations.
Article 56.
Restructuring, merger and extinction
1-Public foundations must be extinguished:
a) When the time limit has elapsed by which they have been created;
b) When the purposes for which they have been created have been achieved, or if
has made it impossible to pursue;
c) When you check not to subsist the reasons that dictated your recognition;
d) When the State, the Autonomous Region or the local municipality have to comply
obligations assumed by the organs of the foundation for which the respective
heritage if it proves insufficient.
2-In case of extinction, it is acauteled, where possible, the transfer of the heritage
of the public foundation for public entities that pursue analogous purposes.
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Chapter II
Public foundations of private law
Article 57.
Applicable regime
1-The State, the Autonomous Regions, the local authorities, the other collective persons of the
autonomous administration and the remaining public collective people are barred from creating
or participate in new public foundations of private law.
2-The public foundations of private law already created and recognized shall apply the willing
in the previous chapter, with the specificities of this chapter.
Article 58.
Status of members of the organs of the foundation
1-The holders of the organs of any public legal person who are designated to
exercise in accumulation of management positions in foundations created or sponsored
by the same public entity may not receive any remuneration or supplements
remunerative for the post or accrued office, whatever the title is.
2-It is vetted to the members of the governing bodies:
a) The exercise of any other activities, temporary or permanent,
remunerated or not, in the foundation that they administer or in entities by it
supported or dominated;
b) The celebration, during the exercise of the respective mandates, of any
work contracts or provision of services with the foundation that
administering or with the entities it supported or dominated that hajam from
invigorate after the cessation of their duties.
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3-Members of administration bodies must declare themselves barred from taking part
in deliberations when in them have an interest, per se, as representatives or as
business managers of another person, or yet when such succeeding in relation to their
spouse, united in fact, relative or aend in a straight line or up to the 2 degree online
collateral or in relation to the person with whom they live in common economics.
4-You cannot receive benefits from a public private law foundation the following
companies:
a) Those whose capital is held in a percentage higher than 10% by one or
more members of the foundation boards of the foundation concerned or by their
spouses, united in fact, relatives or related online or even to the 2 degree in
collateral line or in relation to the person with whom they live in a common economy;
b) Those in whose capital a member of the foundation's governing body in
cause or your spouse, united in fact, relative or awe in a straight line or up to the
2. degree in a collateral line or in relation to the person with whom they live in
common economy detains, directly or indirectly, by you or with the relatives
referred to in the preceding paragraph, a percentage of not less than 10%;
c) Those whose capital is held in a percentage higher than 10% by the own
foundation.
5-The members of the governing body shall not be able to perform duties for more than ten
years.
6-The provisions of the preceding paragraphs shall apply, with the necessary adaptations, to the
members of the steering or supervisory bodies.
7-The members of the organs of the foundation shall apply to the scheme defined in this Law-
framework and, secondarily, the constant regime of the framework law of public institutes.
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Article 59.
Sanctionatory regime
1-A violation of the provisions of paragraph 5 of the preceding Article imports the expiry of the mandate
under way, to be declared by the competent entity for recognition.
2-A violation of the provisions of paragraphs 2 a to 4 of the preceding Article shall determine:
a) The nullity of deliberations and too many acts or contracts;
b) The resignation of the member of the organ who is found to be prevented or in a situation of
incompatibility;
c) The inhibition of the member of the organ that is found to be prevented or in a situation of
incompatibility for the exercise of functions in administration bodies, of
direction or oversight in public foundations of private law by a
period of five years.
3-A The dismissability and the inhibition referred to in the preceding paragraph imply the obligation to refund
with interest from mora the importances improperly received and do not give way to any
compensation or compensation.
Article 60.
Advertising
1-Within 30 days, they are communicated to the Presidency of the Council of Ministers and
sent in the same time frame for publication in the Journal of the Republic , owing still to be
published in two daily newspapers of national circulation, or in one of those and in a newspaper
site covering the municipality in which the seat of the foundation is located, the changes to the
statutes, the allocation of end or different purposes, the decisions of merger or extinction, the
modifications or ampliations of the entities granting financial supports and the
changes in the composition of social organs.
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2-The provisions of the preceding paragraph shall apply to the mandatory publication of the report and accounts
annual, accompanied by the opinion of the tax council or official auditor, on the terms
legally required for public limited companies.
Article 61.
Fate of the goods in the event of extinction
1-In case of extinction of public foundation of private law, the remaining heritage
after liquidation reverses to the legal person of public law that has created it or,
having there been several, for all, in the measure of their contribution to the early heritage
of the foundation or the number of members of the governing bodies, directing or
supervision of the foundation that it could designate.
2-If the public private law foundation has private institutors, the part of the
heritage that would correspond to them in the event of extinction follows the provisions of Article 12.
