Key Benefits:
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Proposed Law n.
Exhibition of Motives
The Directive No 2013 /36/UE, of the European Parliament and of the Council of June 26 of
2013, concerning access to the activity of credit institutions and the prudential supervision of
credit institutions and investment firms (Directive No 2013 /36/UE) and the
Regulation (EU) No 575/2013 of the European Parliament and of the Council of June 26
of 2013 (Regulation No 575/2013), implement in the European Union the framework
regulation of Basel III replacing Directive No 2006 /48/CE, of Parliament
European and of the Council of June 14, 2006 on access to the activity of the
credit institutions and their exercise and Directive No 2006 /49/CE, of Parliament
European and of the Council of June 14, 2006 on the suitability of own funds
of the investment firms and credit institutions, which had already been subject, in the
last years, to various changes.
Thus, Directive No 2013 /36/UE, enshrined a set of changes in subjects
related to the activity and supervision of those institutions that fulfils transpose to
the internal legal order, by introducing into the national legal order the amendments
necessary for the implementation of the standards provided for in it.
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In respect of socieage-government, and in concrete for the exercise of members ' roles
of the administrative and supervisory bodies, comes the Directive No 2013 /36/UE establish a
set of requirements as to the suitability of these members with those functions, well
as from posts whose holders, who do not belong to the governing bodies and
supervision, carry out functions that confirm them significant influence in the management of the
credit institution or financial society held as essential, in respect of
idoneity, qualification, professional experience and availability, which they intend
contribute to the sound and prudent management of those institutions, thereby proceeding to a
reinforcement and adequacy of the constant rules of the General Regime of Credit Institutions and
Financial Societies, approved by the Decree-Law No. 289/92, of December 31
(General Regime) on that matter.
Directive No. 2013 /36/UE, likewise, determines the compulsion of the institutions of
credit establish and maintain policies and practices of remuneration congruent with
an effective management of the risks of them, applicable to collaborators whose activity
professional has a significant impact on the risk profile of these same institutions.
For this purpose, Directive No 2013 /36/UE has determined a set of standards applicable to the
structure and composition of the remunerations, in particular of their variable component, which
they will have to be properly implemented in the national legal planning, very much though
already found, albeit in a less densified manner, of the Decree-Law No. 104/2007, of 3
of April, as amended by the Decree-Law No. 88/2011 of July 20, which transposed into the
internal legal planning to Directive No 2010 /76/UE, of the European Parliament and of the
Council, of November 24, 2010 (CRD III).
It is also apparent from Directive No 2013 /36/UE, the duty of the Member States to ensure the
existence of mechanisms for denouncing infractions and regulating the respect
procedure for the processing of these complaints guaranteeing, inter alia, the respect
confidentiality and to create mechanisms that ensure the protection of whistleblower.
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Additionally the extent of the cast of corrective measures is required that the
Bank of Portugal may impose, in case of non-compliance with standards that discipline the
activity of credit institutions and financial societies, what motivates equally
various adjustments to the General Regime in this matter.
It is warranted to enable the Bank of Portugal to undertake the creation and maintenance of a base
of data from the bank accounts existing in the banking system, determining the scope and
extension of the same as well as the conditions under which the information constant there may be
transmitted to other entities.
Directive No. 2013 /36/UE, includes standards relating to the sanctionatory regime, defining
a cast of applicable infractions and penalties in the event of a breach of the planned duties
in the said Directive, setting criteria for determination of the measure of the fine and rules
relating to the disclosure of the sentencing decisions, which will have to be introduced in the Regime
General and in Law No. 25/2008 of June 5, amended by Decree-Law No. 317/2009, of 30
of October, by Law No. 46/2011, of June 24, and by the Decrees-Laws 242/2012, of
November 7, and 18/2013, of February 6, which sets out measures of nature
preventive and repressive of combating the laundering of advantages of illicit provenance
and to the financing of terrorism, which justifies the present legislative initiative.
Additionally, seeking to make the sanction regime envisioned in the General Regime more
suitable and efficient, some changes are still introduced in the same with the aim of
contribute to the streamlining of the process of counterordering and concurrent robustness
of the interventional power of the Bank of Portugal, without however prejudice to the rights and guarantees
of defense of the accused.
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Without prejudice to even all the legislative changes that are to be introduced in the Regime
General to be the object of relative reservation of legislative competence of the Assembly of the
Republic and, to that extent, justify the present proposal for a legislative authorization bill,
it is understood appropriate to include in this seat the suitability assessment subjects of the
responsible for the socieurial government of the institutions and of the guiding rules of the policy of
remuneration to be defined by those, pores the relevance of these subjects, in particular in the
current economic-financial context, advises a broad and broad-based discussion on the
amendments that are now aimed at enshrining in national legal planning and that if
are ultimately intended for the promotion of the stability of the national financial system,
within the scope of the special competences assigned to the Bank of Portugal by Law No. 5/98, of
January 31, amended by the Decrees-Leis n. ºs 118/2001, April 17, 50/2004, 10 of
March, 39/2007, February 20, 31-A/2012, February 10, and 142/2013, of 18 of
October.
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, with a request for priority and urgency:
Article 1.
Object
1-It is granted to the Government legislative authorization to, within the framework of the transposition to the
internal legal order of Directive No 2013 /36/EU, of the European Parliament and of the
Council, of June 26, 2013 (Directive No 2013 /36/UE) to make the amendment to the
General Regime of Credit Institutions and Financial Societies, approved by the
Decree-Law No. 298/92 of December 31 (General Regime), as regards:
a) To the suitability requirements of members of the governing bodies and
monitoring and holding office holders with essential functions of the institutions of
credit and financial companies;
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b) To the requirements of the remuneration policies applicable to collaborators
credit institutions and financial companies;
c) To the creation of mechanisms of denunciation of infractions of credit institutions and
financial companies;
d) To the cast of corrective measures applicable to credit institutions and societies
financial that do not comply with the standards that discipline their activity;
e) To the compulsion of credit institutions and financial companies to proceed
the registration and communication of the transfer operations which have as
beneficiary entities based in offshore legal planning;
f) To the creation of a database of accounts, where it consents information on accounts
existing banking in the banking system, organised and managed by the Bank of
Portugal;
g) To the adaptation of the regime of the illicit of mere social ordering of the General Regime,
including the necessary adaptations to ensure the transposition of the Directive
n. 2013 /36/UE.
2-It is, still, granted to the Government legislative authorization for, in the framework of transposition
of Directive No 2013 /36/UE, amend the provisions laid down in the sanctionatory regime of the
Law No. 25/2008 of June 5, amended by Decree-Law No. 317/2009, 30 of
October, by Law No. 46/2011, of June 24, and by the Decrees-Laws 242/2012, of
November 7, and 18/2013, of February 6.
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3-It is, also, granted to the government legislative authorization, to subject the members of the
administrative and supervisory bodies and the people who effectively drive the activity
of the entities subject to the prudential supervision of the Stock Market Commission
Securities in accordance with Article 363 (1) of the Securities Code,
approved by Decree-Law No. 486/99 of November 13, the suitability requirements
provided for in paragraph a ) of paragraph 1 with the necessary adaptations, altering to the effect the
said Code, the Decree-Law No. 357-B/2007 of October 31, as amended by the
Decree-Law No. 52/2010 of June 26; the Decree-Law No. 357-C/2007, of 31 of
October, changed by the Decrees-Laws 52/2010, of June 26, 18/2012, of 6 of
February, and 40/2014, of March 18, and the Decree-Law No. 40/2014 of March 18.
4-For the realization of the measures provided for in this Law and without prejudice to the provisions of the
n. 1, is the Government authorized to make the necessary changes in the following
diplomas:
a) General Regime of Credit Institutions and Financial Societies, approved by the
Decree-Law No 298/92 of December 31;
b) Code of Securities, approved by the Decree-Law No. 486/99, of 13 of
November;
c) Law No. 25/2008 of June 5, amended by Decree-Law No. 317/2009, 30 of
October, by Law No. 46/2011, of June 24, and by the Decrees-Leis
n. paragraphs 242/2012, of November 7, and 18/2013, of February 6;
d) Law No. 28/2009 of June 19;
e) Decree-Law No 260/94 of October 22;
f) Decree-Law No. 72/95 of April 15, as amended by the Decrees-Laws 285/2001,
of November 3, and 186/2002, of August 21;
g) Decree-Law No. 171/95 of July 19, as amended by Decree-Law No. 186/2002, of
August 21;
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h) Decree-Law No. 211/98 of July 16, as amended by the Decrees-Laws 19/2001,
of January 30, and 309-A/2007, of September 7;
i) Decree-Law No 357-B/2007 of October 31, amended by the Decree-Law
n. 52/2010 of June 26;
j) Decree-Law No 357-C/2007 of October 31, amended by the Decrees-Laws
n. ºs 52/2010, June 26, 18/2012, of February 6, and 40/2014, of 18 of
March;
k) Legal Regime of Payment Services and Electrophic Currency, approved by the
Decree-Law No. 317/2009 of October 30, amended by the Decree-Law
n. 242/2012 of November 7;
l) Legal Regime of Central Counterparties, Approved by Decree-Law No. 40/2014,
of March 18.
Article 2.
Sense and extent of legislative authorization as to suitability requirements
of the members of the administrative and supervisory bodies and officeholders
with essential functions
1-In the use of the authorization conferred by the letter (s) a ) of Article 1 (1) and (3), may the
Government to establish the suitability criteria for the exercise of duties of the
members of the administrative and supervisory bodies of credit institutions and the
financial companies, fixing:
a) The requirements and requirements of idoneity, professional qualification, independence
and availability to which they are obliged in the exercise of their respective duties, in the
following terms:
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i) Determine that in the case of collegial bodies, the individual assessment of each
member must be accompanied by a collective appreciation of the organ, having
in view to check if the organ itself, considering its composition, gathers
professional qualification and sufficient availability to fulfil the
respects legal and statutory functions in all relevant areas of
acting;
ii) To provide that their assessment shall comply with the principle of proportionality,
having to take into account, specifically the nature, size and the
complexity of the activity of the credit institution or financial society
and the demands and responsibilities associated with the concrete functions to
play;
iii) Establish that the internal policy of selection and evaluation of the members of the
organs of administration and surveillance should promote the diversity of
qualifications and competencies required for the exercise of the function, fixating
goals for the representation of men and women and conceiving a
policy aimed at increasing the number of people of the genus sub-
represented with a view to achieving the said objectives;
iv) Fix the competence of the general assembly to define and approve a policy
internal selection and assessment of the suitability of the members of the organs of
administration and surveillance, of which they build at least the identification
of those responsible for the assessment of the suitability of those members, the
evaluation procedures adopted, the suitability requirements required,
the rules on prevention, communication and sanction of conflicts of interest
and the means of training made available;
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v) Determine the duty of persons to be assigned to the governing bodies
and supervision to present to the institution of credit or society
financial, in advance to their designation, a written statement where
build all relevant and necessary information for the evaluation of the
respect suitability, including those required under the
authorization process of the Bank of Portugal and that they are obliged to
communicate any overdue facts or changes;
vi) To impose that the results of any assessment or re-evaluation carried out by the
credit institution or financial society must appear in a
report that, in the case of the assessment of persons for elective positions, it must
be placed at the disposal of the general meeting within the framework of the respects
preparatory information;
vii) Require the members of the administrative and supervisory bodies
demonstrate that they possess the necessary skills and qualifications to the
exercise of their duties, acquired through academic habilitation or
of specialized training appropriate to the post to be held and through
professional experience with duration and levels of responsibility that
are in line with the characteristics, the complexity and the
size of the credit institution or financial society, as well as
with the risks associated with the activity by this developed;
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viii) Determine that case for any reason cease to be filled in the
suitability requirements, professional qualification, independence or
availability of a particular member or, as a whole, of the
body of administration or surveillance, the Bank of Portugal may adopt
the following measures: ( i ) set a deadline for taking the measures
appropriate to the fulfilment of the missing requirement; ( ii ) suspend the
authorization for the exercise of duties of the member concerned, by the
period of time required to sanction the lack of the requirements
identified; ( iii) set a deadline for changes in the distribution of
pelgolds; and ( iv ) set a deadline for changes in the composition of the organ in
cause and presentation to the Bank of Portugal of all information
relevant and necessary for the assessment of suitability and authorization of
substituted members;
ix) To provide that the authorisation for the exercise of duties of the members of the
organs of administration and supervision by the Bank of Portugal is a condition
necessary for the commencement of the exercise of the duties of the duties;
x) For the purposes of the preceding sub-paragraph, establish that the definitive registration
of designation of member of the administration or supervisory bodies attached to the
conservatory of the commercial register depends on permission from the Bank of Portugal
for the exercise of duties;
xi) Establish that the authorisation for the exercise of duties may be revoked
all the time in the face of the occurrence of super-venient circumstances,
susceptible to determining the non-fulfillment of the requirements of which
depends on the authorization;
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xii) Establish that the revocation of the authorization for the exercise of duties
has as an effect the immediate cessation of duties of the member concerned, and
that the Bank of Portugal must report the revocation to the target and to the
credit institution or financial society, which adopts the measures
suitable for that cessation of functions to occur immediately,
owing to the credit institution or financial society to promote the
registration of the cessation with the conservatory of the commercial register;
xiii) Establish that case the term of office of the member of the board of directors
or surveillance has already started, the refusal of the permit has as
effect of their cessation, owing to the institution of credit or society
financial to promote the registration of the severance of member functions in
cause with the conservatory of the commercial register;
xiv) Require the assessment of the idoneity to take into account the way in which the
person habitually manages the business, professional or personal, or
carries out the profession, in particular on the aspets that reveal its ability
to decide in a thoughtful and judicious manner, or its tendency to
to meet punctually your obligations or to have behaviours
compatible with the preservation of market confidence, taking in
consideration of all circumstances allowing to evaluate the
professional behaviour for the duties in question;
xv) Impose certain circumstances that are deemed to be, depending on your
gravity, indictments of the lack of idoneity, including:
a) Indications that the member of the board of directors or of
supervision did not act transparently or cooperatively in their
relations with any supervisory authorities or regulation,
national or foreign;
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b) The refusal, revocation, cancellation or cessation of registration,
authorization, admission or license for the exercise of an activity
commercial, business or professional, by an authority of
supervision, professional order or body with analogous functions
or the removal of the exercise of a post by public entity;
c) The reasons that motivated a dismissal, the cessation of a
linkage or the ousting of a post that presupposes special
relationship of trust;
d) The ban, by judicial authority, supervisory authority, order
professional or body with analogous functions, of acting in quality
of administrator or manager of a society or of it
play roles;
e) The inclusion of mentions of non-compliance in the central of
credit responsibilities or any other records of
analogous nature, on the part of the competent authority for the purpose;
f) The results obtained, from the financial or business point of view,
by entities managed by the data subject or in which it has been or
be a holder of a qualified participation, having especially in
account any processes of recovery, insolvency or liquidation,
and the way it contributed to the situation that led to such
processes;
g) Personal insolvency, regardless of the qualification qualification;
h) Civil actions, administrative processes or criminal proceedings, well
like any other circumstances that, attentive to the concrete case,
can have a significant impact on the financial soundness of the
person concerned;
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i) Insolvency, declared in Portugal or abroad, of the person
interested or of company per se dominated or that it has been
administrator, director or manager, of law or de facto or member
of the supervisory body;
j) The charge, pronunciation or conviction, in Portugal or in the
foreign, for crimes against heritage, crimes of forgery and
falsity, crimes against the realization of justice, crimes committed in the
exercise of public functions, tax crimes, crimes specifically
related to the exercise of financial activities and insurers and
with the use of means of payment and, still, crimes foreseen in the
Code of Commercial Societies;
k) The prosecution or conviction, in Portugal or abroad, by
infractions to the standards governing the activity of credit institutions,
of financial corporations and fund holding companies of
pensions, as well as the securities market standards and
of the insurer or reinsurer activity, including the mediation of
insurance or reinsurance;
l) Infractions of disciplinary, deontological or conduct rules
professional, in the framework of regulated professional activities;
m) Facts that have determined the judicial destitution, or the
judicial confirmation of destitution for just cause, of members of the
organs of administration and surveillance of any society
commercial;
n) Facts practiced in the quality of administrator, director or manager
of any commercial society that have determined to
conviction for damage caused to society, to partners, to creditors
social or to third parties;
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xvi) Making the exercise of the functions of the members of the organs of
administration and surveillance of the demonstration of competences and
qualifications necessary for the exercise of their duties, acquired through
of academic habilitation or specialized training appropriate to the
role to exercise and through professional experience with duration and levels
of responsibility in line with the characteristics, the
complexity and the size of the credit institution or society
financial, as well as with the risks associated with the activity by this
developed;
xvii) Allow the Bank of Portugal to proceed to consultations for verification
fulfillment of the requirement of the professional qualification with
competent authority which, in the exercise of its tasks, may
issue reasoned opinion on the matter;
xviii) Determine the susceptible situations of affecting the independence of the
members of the board of directors or surveillance, namely:
a) The posts that the person concerned shall exercise or have exercised in the institution
of credit or financial society in question or other institution of
credit or financial society;
b) Family relationships or analogues, as well as professional relationships
or of an economic nature that the person concerned has with others
members of the board of directors or audit of the institution of
credit or financial society, its parent company or its
branches;
c) Family relationships or analogues, as well as professional relationships
or of an economic nature that the person concerned has with person who
detain qualified participation in the credit institution or society
financial, of its parent company or in its subsidiaries;
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b) Competence to the Bank of Portugal to determine the provisional suspension of the
functions of any member of an administration or supervisory body, if such
is necessary to prevent the serious risk to the sound and prudent management of the
credit institution or financial society or for the stability of the system
financial;
c) The situations in which it cesses the preventive suspension of the member of the organ of
administration or surveillance;
d) The measures that the Bank of Portugal can adopt in the cases of lack of suitability
supervenient of the members of the administrative or supervisory bodies and the
respects procedure of adoption;
e) The obligation for credit institutions and financial companies to identify the
posts whose holders, not belonging to the governing bodies or
supervision, exercise functions that confirm them significant influence in the
respects management of the institution;
f) The extension of the suitability regime to office-holders who, not belonging to the
organs of administration and surveillance, exercise functions that confirm it
significant influence on the management of the credit institution or financial society,
specifically responsible for the function of compliance and risk management;
g) The regulatory powers of the Bank of Portugal to qualify other functions
exerted by collaborators of the credit institution or financial society
as essential or susceptible to confer significant influence on the management of the
institution.
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Article 3.
Sense and extent of legislative authorization as to the requirements of policies
of remuneration applicable to collaborators
1-In the use of the legislative authorization conferred by the ( b ) of Article 1 (1) may the
Government to establish rules on remunerative practices and policies in institutions of
credit and financial companies as well as rules of composition and fixation of those
remunerations, in particular its variable component, fixing:
a) The compulsion of credit institutions or financial companies to define
a policy of remuneration, including the discretionary pension benefits,
behold at the institution of credit or financial society at the group level, of its
parent company and its subsidiaries, establishing that the same must:
i) Be appropriate to its size and internal organisation and nature, to the scope and
the complexity of their activities;
ii) To promote and be consistent with sound and prudent risk management and not
encouraging risk-taking in excess of the level of risk tolerated by the
credit institution or financial society;
iii) Be compatible with the business strategy of the credit institution or
financial society, its goals, values and long-term interests and
include measures to prevent conflicts of interest;
iv) To provide for the independence of collaborators who exercise control functions
and risk management in relation to the units of structure they control,
by assigning them the appropriate powers and a dependent remuneration of the
achievement of the goals associated with respect to the functions, but independent
of the performance of the respective structure units;
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v) Establish that the remuneration of the collaborators with management functions of the
risk and control is scrutinised directly by the remuneration committee or, in the
it is missing from this, by the supervisory body;
vi) Distinguish clearly the criteria of the fixed component of remuneration,
grounded primarily in the relevant professional experience and in the
organizational responsibility of the functions of the collaborator, and the criteria
for the variable component of remuneration, grounded in performance
sustainable and adapted to the risk of the institution of credit or society
financial, as well as in the fulfillment of the functions of the collaborator to
in addition to the required;
vii) Be approved and reviewed periodically by the competent body, which is
also responsible for the surveillance of its implementation;
b) The subjective scope of these remuneration policies, which includes:
i) Members of the administrative and supervisory bodies;
ii) The top direction;
iii) Those responsible for risk-taking
iv) Those responsible for the control functions; and
v) Collaborators whose total remuneration puts them at the same level as
remuneration that those referred to in previous subparagraphs i ) a iii ), provided that the
respect for activities have a significant impact on the risk profile of the
credit institution or financial society;
c) The requirement of the board of directors to submit annually to the approval
of the general meeting the remuneration policy of the members of the organs of
administration and surveillance;
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d) The mandatory implementation of the remuneration policy is subject to a
centralized and independent internal analysis, with a minimum annual periodicity,
to be carried out by the remuneration committee, if existing, by the members not
executives of the board of directors, or by the members of the supervisory body,
taking aim at the verification of compliance with policies and procedures
of remuneration adopted by the competent societarium body;
e) The additional requirements to those referred to in para. a ) the one that must obey the policy of
remuneration in credit institutions or financial companies that benefit
of excecional intervention of the State, specifically:
i) Prohibition to assign to members of the governing body any
variable remunerative component, unless there are objective reasons
ponderous that justifies it;
ii) To impose the restructuring of remuneration in a consentental manner with a
solid risk management and with the long-term growth of the institution of
credit or financial society, including the setting of limits on remuneration
of the members of the administration bodies;
iii) Limit the variable component of the remuneration of the collaborators of the
credit institution or financial society to a percentage of the profits,
where this is necessary for the maintenance of a fund base
solid and for the timely cessation of the excecional intervention of the
State;
f) The prohibition of credit institutions or financial companies, by defining the
variable component of the remuneration, establish a total value of such
component susceptible to limiting the capacity of the credit institution or
financial society to strengthen its own fund base and that this value
total take into account all types of risks, current and future;
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g) The definition of rules to be applied when the remuneration depends on the performance of the
collaborator, specifically:
i) Establish that the definition of the total value of the variable component of the
remuneration shall be carried out through the combination of the evaluation of the
performance of the collaborator, who should consider financial criteria and not
financial, and the performance of their unit of structure in the results
global from the credit institution or financial society;
ii) Establish that the assessment should process in a multiannual framework,
ensuring that the evaluation process is based on the performance of long
term and that the payment of the remuneration components of it
dependents are rebroken over a period that has in
consideration of the underlying economic cycle of the credit institution or
financial society and its business risks;
iii) Establish that the afferition of the performance used to calculate the
variable component of the remuneration shall provide for adjustments
considering the various types of risks, current and future, as well as the cost
of the own funds and liquidity needed by the credit institution or
financial society.
h) Which, at least half of the amount constituting the variable component of the
remuneration, whether that component is deferred or not deferred, should consist
in an appropriate balance between:
i) In the case of credit institutions or financial companies issuers of
shares or, as per the form of the institution, equivalent instruments,
admitted to trading on regulated market, shares or instruments
equivalents issued by the same; in the remaining cases, instruments
indexed to the shares or equivalent instruments not expressed in
cash;
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ii) Where possible, other instruments in the acetation of Articles 52 or 63 of the
Regulation (EU) No 575/2013, of the European Parliament and of the Council,
of June 26, 2013 (Regulation No 575/2013), or others
instruments that can be fully converted into instruments
of main own funds of level 1 or the value of which can be reduced,
to the extent that they adequately reflect the creditworthiness of the
credit institution or financial companies and are appropriate for
effects of the variable component of remuneration;
i) The instruments must be subject to a policy of retention by the institution of
credit or financial society, substantiated in a period of unavailability
suitable in such a way as to compatibly with the incentives with the interests of long
term of the credit institution or financial companies;
j) The Bank of Portugal may impose restrictions on the types and characteristics of the
instruments referred to in paragraph h );
k) Rules for fixing the variable component of the remuneration, according to the
following principles:
i) Differing a substantial part of the variable component over a period
minimum of three to five years, owing such component and the duration of the
period of deferment being set in function of the economic cycle, of the
nature of the activity of the credit institution or financial companies, of the
your risks and the activity of the collaborator in question, being that by the
minus 40% of the variable component of the remuneration is deferred, this being
high amount to at least 60% when the variable component of the
remuneration is of particularly high value, and the right to
payment of the variable component of the remuneration subject to deferment
must be acquired on a proportional basis over the period of
deferment;
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ii) Determine that such remuneration, including the deferred part of that
pay, it only constitutes an acquired right or is paid if it is sustainable
in the light of the financial situation of the credit institution or financial society
and grounded in the light of the performance of the same, of the unit of structure
in cause and of the collaborator in question;
l) Q
ue, without prejudice to applicable civil and labour law, the variable component of
remuneration shall be amended in accordance with points (m) to q) should the performance
of the institution of credit or financial society regrida or is negative, having in
consideration of both the current remuneration and reductions in the payment of
amounts whose right to receipt has already constituted.
m) The requirement that the totality of the variable component of the remuneration be
subject to reduction mechanisms (" malus ") and reversal (" clawback ") , owing to
credit institution or financial society define specific criteria for the
its application, ensuring that they are, in particular, considered the situations in
that the collaborator:
a) Participated in or was responsible for an acting that resulted in losses
significant for the institution of credit or financial society;
b) D
has to comply with criteria of suitability and suitability.
n) The payments related to the early cessation of the performance of duties
of the collaborator should reflect the verified performance along the same of
form to not encourage inappropriate behaviour;
o) The requirement that remuneration, aiming at the compensation of new collaborators
by cessation of the exercise of previous functions, must take into consideration the
long term interests of the credit institution or financial society,
including the application of the rules regarding performance, unavailability
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upon retention by the institution of credit or financial society, deferment
and reversal;
p) The prohibition on the allocation of guaranteed variable remuneration, except when
hiring of new collaborators, only in the first year of activity and case
there is a strong and strong capital base in the institution of credit or society
financial;
q) Requirement that the policy on the discretionary pension benefits be
compatible with the business strategy, objectives, values and interests of
long term of the credit institution or financial society, owing such
benefits to take the form of the instruments referred to in paragraph (h) Regening,
notably, by the following:
i) C
aso the cessation of the collaborator's activity occurs before the reform, the
discretionary pension benefits of which it is holder are maintained by the
institution of credit or financial society for a period of five
years, fining which constitutes an acquired right from the collaborator to the recede
of the respect payment by the credit institution or financial society.
ii) When the collaborator achieves the reform situation, the benefits
discretionary pension discretionary that is a holder and whose right to respect
payment has already been purchased are withheld by the credit institution or
financial society for a period of five years, finite which are
delivered to the collaborator.
r) The ban on the use by collaborators of any mechanism of
risk coverage biased to mitigate the effects of alignment by risk
inherent in the modalities of remuneration or through the payment of the
variable component of remuneration through instrumental entities
or other methods with equivalent effect;
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s) The obligation for credit institutions or financial companies to establish
appropriate ratios between the fixed and variable components of the remuneration, in the
following terms:
i) The fixed component shall represent a sufficiently large proportion
high of the total remuneration in order to allow the application of a policy
fully flexible relative to the variable component of remuneration,
including the possibility of non-payment of it;
ii) The variable component of the remuneration shall not exceed the value of the
fixed component of remuneration for each collaborator, and may
credit institutions or financial companies approve a maximum level
higher for the variable component of total remuneration, provided that the
variable component of the remuneration shall not exceed double the
fixed component of the remuneration of each collaborator and that to comply with
an approval procedure with the intervention of the general assembly of the
institution.
iii) Admit that in the definition of the ratio between the fixed and variable components of the
total remuneration, credit institutions or financial companies
can apply a discount rate, calculated in accordance with the
guidelines set by the European Banking Authority under the
provisions of the second paragraph of the sub-paragraph iii ) of the paragraph g ) of paragraph 1 of the
Article 94 of Directive No 2013 /36/UE, to a maximum of one quarter of the
variable component of remuneration, provided that the same is paid in
deferred instruments for a period of five years or more;
t) The powers of the Bank of Portugal to define, by means of regulation:
i) The rules to be observed in relation to remuneration practices and policies of the
institutions subject to their supervision;
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ii) Reporting duties to the Bank of Portugal concerning the policy of
remuneration;
u) The creation and maintenance of a remuneration committee in the institutions whose
dimension, internal organization, nature, scope and complexity of activities
thereby justifying it, as well as the setting of the respective rules of composition and
functioning, determining that:
i) It is incumbent upon this committee to formulate informed and independent judgements on the
remuneration policy and practices and on the incentives created for purposes
of risk management, capital and liquidity;
ii) That the committee is responsible for the preparation of decisions concerning the
remuneration, including decisions with implications in terms of risks and
management of the risks of the credit institution or financial society concerned,
that they should be taken by the competent social organ;
iii) In the exercise of its activity, the Committee shall observe the interests of
long term of shareholders, investors and others interested in the
credit institution or financial society, as well as the interest
public.
Article 4.
Sense and extent of legislative authorization as to the mechanisms of denunciation
of infractions
In the use of the legislative authorization conferred by the letter (s) c) of Article 1 (1) may the
Government to establish mechanisms that promote the denunciation of infractions, in the following
terms:
a) Enforcing that the institutions implement specific, independent means and
proper autonomous of the receiving, processing and file of the participations
serious irregularities related to your administration, organization
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accounting and internal surveillance and serious evidence of infractions to duties
provided for in the General Regime or in Regulation No 575/2013, and that such means
must ensure the confidentiality of the holdings received and the protection of the
personal data of the whistleblower and the suspect in the practice of the infraction;
b) Imposing that certain persons, by virtue of the functions they exercise in the institution
of credit or financial society, particularly in the areas of internal audit,
of risk management or monitoring of compliance with legal obligations and
regulatory ( compliance ) and to take notice of any wrongdoing
serious related to the administration, accounting and surveillance organization
internal, which is susceptible to putting it in a situation of financial imbalance,
have a duty to participate in the supervisory body;
c) Establish the mandatory analysis of the holdings received and preparation
of reasoned reporting, containing the adopted measures or the justification for the
its non-adoption, requiring both documents to be considered on paper
or in another lasting support that allows for the full and unchanged reproduction of the
information, for a term of five years;
d) Allow access to the information of the shareholdings and reports by the Bank of
Portugal, under the terms and conditions to be defined in the General Regime;
e) Prohibit that the participation effected can, by itself, serve as a foundation of the
introduction of any disciplinary, civil or criminal procedure relatively
to the author of the participation, except if the same are deliberated and manifestly
unfounded;
f) Determine that any person who has knowledge of serious evidence of
infractions to duties provided for in the General Regime or in Regulation No 575/2013,
can make a stake to the Bank of Portugal, being guaranteed protection
of the personal data of the whistleblower and the suspect in the practice of the infraction and the
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confidentiality on the identity of the whistleblower at all time or even to the
time in which such information is required to safeguard the rights of
defence of those targeted by the complaint, in the context of the investigations to which it gives
place or subsequent legal proceedings;
g) Confer regulatory power to the Bank of Portugal to ensure the
implementation of the complaints mechanisms.
Article 5.
Sense and extent of legislative authorization as to the casting of measures
corrective
In the use of the authorization conferred by the letter d ) of Article 1 (1), may the Government
determine how corrective measures to be implemented by the Bank of Portugal to institutions of
credit or financial companies that do not comply with the standards that discipline their
activity, or in respect of which the supervisor possesses information evidencing that
you will not comply with them within one year, the following measures:
a) Require credit institutions or financial companies to hold funds
own superiors to the requirements established under the Title VII-A or the
Regulation (EU) No 575/2013, of the European Parliament and of the Council, of 26 of
June 2013;
b) Restrict or limit the activities, operations or networks of balconies of the institutions
of credit or financial companies, or request the disinvestment of activities
of the institution that present excessive risks for the solidity of ness;
c) Limit or prohibit interest payments or dividends by an institution of
credit or financial society to shareholders or holders of instruments of
additional own funds of level 1 case the ban does not constitute an event of
default;
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d) Impose additional or more frequent reporting requirements,
notably on the position of capital and liquidity;
e) Impose specific liquidity requirements;
f) Require additional disclosures;
g) Impose a specific requirement of own funds higher than the minimum level
legally established to credit institutions and financial companies in the
following situations:
i) Who do not comply with the requirements set out in accordance with Article 393 of the
Regulation No. 575/2013, of Articles 74 and 108 of the Directive
n. 2013 /36/UE and the General Regime;
ii) Whose risks are not covered by the requirements of own funds that
come to be established in the General Regime or in the Regulation
n. 575/2013;
iii) Whose application of other measures does not appear sufficient, on its own, to
improve satisfactorily, in appropriate time, the provisions, strategies,
processes and mechanisms applied by credit institutions;
iv) Whose analysis and evaluation referred to in Article 98 (4) and paragraph 4 of the
article 101 of the Directive No 2013 /36/UE may reveal that the
non-compliance with the requirements for the application of the said methods
in those provisions is susceptible to driving the requirements of own funds
unsuitable;
v) For which risks are likely to be underestimated
despite compliance with the applicable requirements set by the Regime
General and by Regulation No 575/2013;
vi) Who shall communicate to the Bank of Portugal, pursuant to Article 377 (5)
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of Regulation No 575/2013, which the results of the stress tests to which
refers to that article significantly exceed your fund requirements
own for the correlation trading portfolio.
Article 6.
Sense and extent of legislative authorization as to the obligation to register and
communication of transfer operations
In the use of the authorization conferred by the letter e) of Article 1 (1), the Government may
impose the mandatory of credit institutions and financial companies on the basis of
your consolidated financial situation, record the operations corresponding to services of
payment provided by all entities included in the perimeter of supervision
prudential that have as a beneficiary a natural or collective person based in
any legal planning offshore and communicate them to the Bank of Portugal or any
other entities enabled to provide payment services on national territory.
Article 7.
Sense and extent of legislative authorization as to the obligation to set up a
account database
In the use of the authorization conferred by the letter f) of Article 1 (1), may the Government
impose the creation of a base of deposit, payment, credit and financial accounts
financial instruments, domiciled in the national territory in credit institutions,
financial companies or payment institutions, organized and managed by the Bank of
Portugal, determining that:
a) The constant information elements of the database of accounts include:
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i) Identification of the account and the participating entity where this is found
domiciled;
ii) Identification of the respective holders and the persons authorized to
moving them, including or other representatives;
iii) Date of opening and closing of the account;
b) The compulsion of credit institutions, financial corporations and institutions
of payment authorized to open accounts, be it of which type to, proceed to the submission
to the Bank of Portugal of the information referred to in previous subparagraph, with the
periodicity defined in regulation of the Bank of Portugal;
c) The communication of the information contained in the database of accounts to any
judicial authority in the context of a criminal procedure, as well as the Prosecutor-General's Office
General of the Republic, or to whom to exercise the respective competencies by delegation, and
to the Financial Information Unit, within the scope of the assignments that are
committed by Law No. 25/2008 of June 5, amended by the Decree-Law
n ° 317/2009 of October 30 by the Law No. 46/2011 of June 24 and by the
Decrees-Laws No 242/2012, of November 7, and 18/2013, of February 6;
d) The information of the database of accounts relating to the identification of the institutions
of credit, financial companies or payment institutions in which the accounts
are domiciled can be equally transmitted, preferentially by way
electro:
i) To The Tax and Customs Authority in the context of the respective assignments
concerning the collection of debts and still in the situations in which the same
determine, in the legal terms, the derogation from banking secrecy;
ii) To the Institute of Financial Management of Social Security, I.P., in the framework of
respects assignments relating to collection of debts and grant of supports
socio-economic;
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iii) To the executing agents, in the legally foreseen terms, as well as to the
judicial officers when in the exercise of roles equiparable to those
in the framework of executive processes for the right amount payment.
e) The constant information of the database can be used by the Bank of
Portugal, in the context of its assignments;
f) The responsibility for the constant information of the base of bank accounts is
credit institutions, financial companies or payment institutions that the
report and that it is up to them in sole discretion to rectify or change it, on their initiative or
at the request of its customers, where errors or omissions occur;
g) The Bank of Portugal can access the constant information of the database of
tax identification, managed by the Tax and Customs Authority, for verification
of the correctness of the name and tax identification number of the holders and persons
authorized to move accounts transmitted by credit institutions,
financial companies or payment institutions, in the terms of protocol a
celebrate between the Bank of Portugal and the Taxation and Customs Authority;
h) Powers to the Bank of Portugal to regulate the aspets needed for implementation
of the base of accounts, in particular with respect to the access reserved to the
centralised information and reporting duties of credit institutions,
financial companies or institutions of payment.
Article 8.
Sense and extent of legislative authorization as to the sanctionatory regime that
discipline the violation of the provisions laid down in Law No 25/2008 of June 5
1-In the use of the authorization conferred by Article 1 (2), it may the Government, establish the
extension of the graduation criteria of the penalty in the following terms:
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a) Determine that the measure of the fine and the ancillary sanctions is done in the function of the
concrete ilicitude of the fact, the fault of the agent and the requirements for prevention,
taking further account of the individual or collective nature of the agent;
b) Establish that in the determination of the concrete ilicitude of the fact, of the fault of the agent
and of the requirements for prevention, whether it meets, the duration of the infraction, the degree of
participation of the accused in the infringement of the infraction, to the existence of a benefit,
or intention to obtain it, for you or to hear it, to the existence of damage caused
the third party for the infraction and its importance when this is determinable, the
potential systemic consequences of the infraction, the occasional or repeated character
of the infraction, the intensity of the dolo or the negligence, if the counterordinance
consist of an omission, the time elapsed from the date on which the act was due to have
have been practiced, at the level of responsibilities of the natural person, scope of their
functions and respect sphere of action in the collective person concerned and the special duty
of the natural person of not committing the infraction;
c) Establish that in the determination of the sanction whether they take the situation still into account
economic of the accused, his previous conduct, the existence of acts of concealment
intended to hamper the discovery of the infraction, the existence of acts of the agent
intended for, by its initiative, to repair the damage or obviate the dangers caused
by the infraction and the level of collaboration of the accused with the administrative authority
competent;
d) Establish that the fine shall exceed the economic benefit obtained by the accused
or person who is your purpose to benefit, to the extent that that is
determinable.
2-In the use of the legislative authorization conferred by Article 1 (2), lies the Government
authorized to establish that the counterordinations provided for in Article 53 of the Law
n ° 25/2008 of June 5, amended by Decree-Law No. 317/2009 of October 30,
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by Law No. 46/2011, of June 24, and by the Decrees-Laws 242/2012, 7 of
november, and 18/2013, of February 6, are punishable on the following terms:
a) When the infraction is practiced in the framework of the activity of an institution of
credit or investment company:
i) With fine of € 50000 a € 5000000, if the agent is a collective person;
ii) With fine of € 25500 a € 5000000, if the agent is a natural person;
b) When the infraction is practiced in the framework of the activity of another entity
financial:
i) With fine of € 25000 a € 2500000, if the agent is a collective person;
ii) With fine of € 12500 a € 1250000, if the agent is a natural person;
c) When the infraction is practiced in the framework of the activity of an entity not
financial, with the exception of lawyers and solicitors:
i) With fine of € 5000 a € 500000, if the agent is a collective person;
ii) With fine of € 2500 a € 250000, if the agent is a natural person;
d) Determine that whenever the amount corresponding to double the benefit
economic resulting from the infractions provided for in Article 53 of Law No 25/2008, of
June 5, amended by Decree-Law No. 317/2009 of October 30 by the Law
n. 46/2011, of June 24, and by the Decrees-Leis n. ºs 242/2012, 7 of
november, and 18/2013, of February 6, be determinable and superior to the limit
maximum of the applicable fine, this limit is high for that amount;
e) Determine that in the specific case of the collective persons who are institutions of
credit or investment firms, the maximum limits of the fines referred to in the
subparagraph i ) of the points a ) and b ) of Article 54 of Law No 25/2008 of June 5,
amended by Decree-Law No. 317/2009 of October 30 by Law No 46/2011,
of June 24, and by the Decrees-Leis n. ºs 242/2012 of November 7, and
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18/2013, of February 6, are high up to the amount corresponding to 10%
of the total net annual turnover of the economic year prior to the
date of the sentencing decision, where this amount is determinable and
superior to those limits;
f) Determine that for the purpose of the aggravation of the maximum limits on fines
provided for in the preceding paragraph:
i) The net annual turnover of the previous economic year shall
include gross income consisting of interest and equated revenue, the
yield arising from stocks and other income instruments
variable or fixed and the commissions received in accordance with Article 316 of the
Regulation (EU) No 575/2013;
ii) For the collective persons who are subject to a framework
accounting for different than what is set out in Article 316 of the
referred to as Regulation, the calculation of net annual turnover
is based on the data that best reflect the provisions of that article;
iii) Where the financial entity is a subsidiary, the gross income
considered is the resulting from the consolidated account of the parent company in the
previous economic exercise;
g) Determine that when they are in cause collective persons who are entities
financial and the maximum limits of the fines provided for in Article 54 of the Law
n ° 25/2008 of June 5, as amended by Decree-Law No. 317/2009, 30 of
October, by Law No. 46/2011, of June 24, and by the Decrees-Leis
n. paragraphs 242/2012, of November 7, and 18/2013, of February 6, are,
simultaneously, susceptible to aggravation in the terms of the ( d ) and and ),
will prevail as the maximum limit the highest amount;
h) Clarify that the ancillary sanction of publication refers to the definitive decision or
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transitioned on trial;
i) Establish that the publication of the definitive or transitioned decision on trial is
effectuated, in full or by excerpt, at the expense of the offender, in a national newspaper,
regional or local, depending on which, in the concrete case, it appears more appropriate.
3-In the use of the legislative authorization conferred by Article 1 (2), it may, as yet, the
Government to determine, as to the disclosure of the decision, the following:
a) In the case of infractions practiced in the context of the activity of credit institutions
or investment company, the sentencing decision, the deadline of
judicial challenge, is disclosed on the website of the administrative authority
competent, in full or by excerpt that includes at least the identity of the
natural or collective person convicted and information about the type and nature of the
infraction, even if it has been required for its judicial challenge, being, in this
case, made express mention of this fact;
b) The court decision confirming, change or revoke the sentencing decision of the
competent administrative authority or the court of 1 th instance is
compulsorily disclosed in the terms of the preceding paragraph;
c) The disclosure takes place on regime of anonymity in case:
i) The penalty is imposed on a natural person and, following a
prior mandatory assessment, if it demonstrates that the publication of data
personal would be disproportionate in the face of the seriousness of the infraction;
ii) The publication could call into question the stability of financial markets
or commit an ongoing criminal investigation;
iii) The publication can, as far as it is possible to determine, cause damage
disproportionate to the institutions or natural persons concerned;
d) Should it be provided that the circumstances justifying anonymity may cease
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within a reasonable time, the publication of the identity of the natural person or collective
doomed may be postponed during that period;
e) The disclosed information is kept available on the website of the
competent administrative authority for five years, counted from the
moment in which the sentencing decision becomes final or transite in
judged, and cannot be indexed to search engines on the Internet;
f) Determine that it is up to the competent administrative authority to communicate to the
European Banking Authority the sanctions applied to the credit institution or
investment company by the practice of the counterordinations provided for in the Act
n ° 25/2008 of June 5, as amended by Decree-Law No. 317/2009, 30 of
October, by Law No. 46/2011, of June 24, and by the Decrees-Leis
n. paragraphs 242/2012, of November 7, and 18/2013, of February 6, as well as the
situation and the outcome of the resources of the decisions that apply them;
Article 9.
Sense and extent of legislative authorization as to the sanctionatory regime
applicable to the violation of the provisions laid down in the General Regime of Institutions of
Credit and Financial Societies
1-In the use of the authorization conferred by the letter (s) g) of Article 1 (1) may the Government
define as a crime, punished with the predicted penalty for the crime of disobedience
qualified:
a) The disobedience to legitimate orders or warrants of the Bank of Portugal,
emanated within the framework of their functions and the creation of obstacles to their execution, if
the Bank of Portugal or an official has warned you of such comination;
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b) The failure to fulfil the duties of fulfilling, of not hindering and of not defrauding the
implementation of the ancillary sanctions or precautionary measures implemented in the process of
counterordinance.
2-In the use of the authorization conferred by the letter (s) g) of Article 1 (1) may the Government,
still, to determine that the General Regime is applicable also to the facts practiced in
foreign territory by which they are responsible individuals who, in relation to
credit institutions or financial companies with a registered office in Portugal and that there act
by means of branches or in provision of services, meet in some of the
situations provided for in Article 203 (1) of the General Regime, or in them they detain
social participations.
3-In the use of the authorization conferred by the letter (s) g) of Article 1 (1) may the Government
expressly predicting that it is punishable as an author of the counterordinations provided for in the
General Regime all the one who, by action or omission, to contribute causally to his
verification.
4-In the use of the authorization conferred by the letter (s) g) of Article 1 (1) may the Government
provide that it shall not preclude the individual liability of natural persons who
represent outrain the circumstance that the legal type of the infraction requires certain
personal elements and these only if they occur in the collective person, in the equating entity
or in one of the actors involved.
5-In the use of the authorization conferred by the letter (s) g) of Article 1 (1) may the Government
expressly predicting that the collective persons and the equipared entities are
responsible also for the counterordinations committed by the holders of the respects
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management, management, directing or managerial positions, in the exercise of their duties, well
as for the counter-ordinations committed by mandators, representatives or
workers of the collective ente in acts practiced on behalf of and in the interest of this.
6-In the use of the authorization conferred by Article 1 (4) may the Government introduce
changes to the criteria for the imputation of liability of natural persons,
predicting that the responsibility of the holders of the administration or direction positions
of the collective persons and equipared entities can be especially attenuated when,
cumulatively, do not be directly responsible for the pelouro or area where if
has verified the practice of the infraction and its liability is founded solely on the fact that,
knowing or having to know the practice of the infraction, not having adopted it
immediately the appropriate measures to put it to a halt.
7-In the use of the authorization conferred by the letter (s) g) of Article 1 (1) may the Government
determine that in the event of negligence only the maximum limit of the estimated fine for the
infraction is reduced to half.
8-In the use of the authorization conferred by the letter (s) g) of Article 1 (1) may the Government
establish the extension of the criteria for graduation of the penalty in the General Regime in the
following terms:
a) Introducing new criteria for determination of the concrete ilicitude of the fact, of the
fault of the agent and of the requirements for prevention, in concrete, the degree of
participation of the accused in the offence of the infraction, the intensity of the dolo or the
neglect, the existence of benefit, or intention to obtain it, for themselves or for
outrain, the existence of damage caused to the third party by the infraction and its
importance when this is determinable, the duration of the infraction and, in the case of
omission from the practice of act due, the time elapsed from the time when the
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act should have been practiced;
b) Introducing as specific criteria, in the determination of the concrete ilicitude of the
fact, of the fault of the agent and of the demands for prevention, for the people
singular, the level of responsibilities, the scope of functions and the sphere of action
in the collective person concerned;
c) Taking into consideration, for the purposes of determining the applicable penalty, the
existence of concealment acts aimed at hindering the discovery of the infraction, of
acts of the agent intended for, for his or her initiative, to repair the damage or obviate the
dangers caused by the infraction and the level of collaboration of the accused.
9-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to determine that whenever a person should respond simultaneously to
title of crime and the title of counterordinance by the practice of the same facts, the
processing of the counterorders so that it is competent the Bank of Portugal and
the respect decision always fully fit this authority and that whenever a person should
respond only to the title of crime, even if the facts are also punishable by title
of counterordinance, the criminal judge may apply the ancillary penalties provided for
counterordinate in cause.
10-In the use of the legislative authorization conferred by the ( g ) of Article 1 (1) may the
Government predicts that, in cases where there has been concealment of the facts that are
object of the counterordinate process, the limitation period only runs from the
knowledge, on the part of the Bank of Portugal, of the facts.
11-In the use of the legislative authorization conferred by paragraph 1 (1) (g) may the
Government expressly predicts that the limitation period of the sanctions applied if
account from the day on which it becomes final or transits on trial the decision that
determined its application and determine that, without prejudice to other causes of
suspension or interruption of the prescription, the limitation of the procedure by
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counterordinance suspending itself from the notification of the dispatch that proceeds to
preliminary examination of the appeal of the decision applying sanction until the notification of the decision
end of appeal, no such suspension may exceed 30 months, should the infringement
be punishable with fine up to € 1500 000.00, treating yourself to collective persons, or with
fines up to € 500 000.00, dealing with natural persons, or 5 years, if the infraction
is punishable with fine superior to those amounts, with these deadlines being set for
double if there has been recourse for the Constitutional Court.
12-In the use of the legislative authorization conferred by Article 1 (4), may the Government
expressly provide that the specific legislation provided for in the m ) of Article 210 para.
of the General Regime includes the legislation of the European Union and that the violation of the standard
on granting of credit to which it alluds to ( t ) of Article 211 of the General Regime
complies with Article 118 (1).
13-In the use of the legislative authorization conferred by Article 1 (4), may the Government
typify the following conduits as especially serious counterorders:
a) The omission of communication due to the Bank of Portugal of any facts
supervenients to the authorization for the exercise of functions that may affect the
suitability requirements, professional qualification, independence or
availability of the authorised person, as well as the omission of the measures imposed
by the Bank of Portugal in that matter;
b) The omission of communications due to the competent authorities in respect of
acquisition, disposal and detention of qualified stakes determined in the
articles of the General Regime that transpose Articles 22, 25 and 26 of the Directive No
2013 /36/UE;
c) The acquisition of qualified participation despite opposition from the authority
competent, in violation of the Rule of the General Regime which transposes paragraph 1 of the
Article 22 of Directive No 2013 /36/UE;
d) The omission of the information and communications due to the competent authorities
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pursuant to the articles of the General Regime that they refer to Articles 99 and 101,
n Article 394 (1), paragraph 1 and 2 of Article 415 (1) of the Article 430
Regulation No 575/2013, in the time limits set out, as well as its provision of
incomplete or inaccurate form;
e) The failure to meet the suitability ratios of own funds provided for in the Articles
92. of Regulation No 575/2013;
f) The failure to comply with the own funds conservation plan provided for in the articles
of the General Regime transposing in Article 142 of the Directive No 2013 /36/UE or
of the measures imposed by the Bank of Portugal under the same;
g) The failure to comply with the national measures adopted in implementation of Article 458 of the
Regulation No 575/2013;
h) The omission of the implementation of systems of government, in violation of the article of the
General Regime to transpose Article 74 of Directive No 2013 /36/UE;
i) The repeated failure to dispose of appropriate net assets, in
violation of the Rule of the General Regime which meets to Rule 412 of the Regulation
n. 575/2013;
j) The inobservance of limits to major risks, in violation of the Rule of the Regime
General to be retargeting for that provided for in Article 395 of Regulation No 575/2013;
k) The exposure to credit risk of a securitisation position, with non-observance
of the conditions set out in violation of the General Regime's article that would retarget
for that provided for in Article 405 of Regulation No 575/2013;
l) The omission of the disclosure of information or the disclosure of information
incomplete or inaccurate, in violation of the articles of the General Regime that they refer
for paragraphs 1 a to 3 of Article 431 or paragraph 1 of Article 451 of the Regulation
n. 575/2013;
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m) The payment to holders of instruments included in the own funds of the
credit institution or financial society, whenever these payments are
prohibited, in violation of the General Regime article that transposes Article 141 of the
Directive No. 2013 /36/UE and which retarget for articles 28, 51 or 63 of the
Regulation No 575/2013;
n) The permission of that one or more persons who will be entrusted with the provisions of the article of the
General Regime to transpose Article 91 of Directive No 2013 /36/UE to become
or continue to be members of the administrative or supervisory body;
o) The omission of the credit institution or financial society to promote the registration
of the termination of duties of the member of the administrative or supervisory body
together with the Conservatory of the commercial register, when there is refusal or revocation of the
authorization for the exercise of the functions by the Bank of Portugal.
14-It is the Government authorized to establish that the counterordinations especially
serious ones provided for in the General Regime are punishable in the following terms:
a) When the infraction is practiced by natural person, raise the maximum limit of the
coima applicable for € 5000000;
b) When the infraction is practiced per collective person are applied for the
definition of the limits of the fine the following rules:
i) Raise the maximum limit of the fine abstractly applicable to the amount
corresponding to 10% of the total net annual turnover of the
last economic exercise prior to the date of the sentencing decision,
including gross income consisting of interest and equated revenue, the
yield arising from stocks and other variable yield securities
or fixed and the commissions received pursuant to Art. 316 of the
Regulation No 575/2013, where this amount is determinable and
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higher than that limit;
ii) In the case of collective persons subject to an accounting framework
different from that set out in Article 316 of Regulation No 575/2013, the
calculation of the net annual turnover, set out in the preceding paragraph,
is based on the data that best reflect the provisions of that article;
iii) If the collective person is a subsidiary the gross income considered is the
gross income resulting from the consolidated accounts of the parent company in the
last economic exercise prior to the sentencing decision.
15-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to broaden the catalogue of ancillary sanctions to go on to include the loss of the
economic benefit taken from the infraction, as well as from objects belonging to the
agent related to the practice of the infraction, and clarify that the sanction of inhibition of the
exercise of social positions and of functions of administration, direction, management or managerial and
the sanction of suspension of the exercise of the right to vote allotted to the holders of
social shareholdings applies in respect of any entities subject to supervision
of the Bank of Portugal.
16-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to determine the subjection of the counterordinance processes instituted by the
Bank of Portugal the secret of justice, until it is handed down administrative decision,
establishing, in concrete, that the defendants can, from the moment it is
notified for the exercise of the right of defence, attend to the procedural acts which
take place and to concern you and consult the autos and obtain copies, extracts and
certificates of any parts of them, and determine the applicability to the process of
counterordinance, with due adaptations, of the exceptions provided for in the Code of
Criminal case for the regime of secrecy of justice.
17-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
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Government to determine that, when necessary to the fact-finding or the instruction of the case,
the Bank of Portugal may carry out the searches for any sites and the seizure of
any documents and equipment, as well as determine the freezing of
any values, regardless of the place or institution in which they find themselves,
owing the seized values to be deposited into the order of the Bank of
Portugal, guaranteeing the payment of the fine and the costs in which it comes
doomed the defendants.
18-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to establish that home searches and seizures are object of warrant
judicial, which, dealing with search in attorney's office, in office of
statutory auditors of accounts or in medical office, this is enacted and carried out, under
penalty of nullity, by the judge of instruction, in the terms of specific legislation and that, with
exception of the situations provided for in Article 126 of the General Regime, the searches and
apprehensions carried out to entities not subject to the supervision of the Bank of Portugal are
object of authorization of the competent judicial authority, safeguarding that
where, in the course of a search, equipment or supports are seized
of information that are susceptible to containing information that does not respect only the
customers, operations or information of an accounting and prudential nature of the
institution, the same are presented to the competent judicial authority that
authorizes or orders by order to proceed to a search of the elements
relevant in a computer system by carrying out a copy or print of such data,
in autonomous support, which is together with the process.
19-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to establish the duty of any persons and entities to give to the Bank
of Portugal all clarifications and information, as well as to deliver all the
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documents, regardless of the nature of their support, objects and elements, in the
measure in them if they prove necessary to the instruction of the processes of their
competence.
20-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to establish the mandatory of, in the course of inspections to subject entities
to the supervision of the Bank of Portugal, the same to provide you with unrestricted access to the
your systems and archives, including the informatics, where it is stored
information relating to customers or operations, information of an accounting nature,
prudential or other relevant information in the scope of the Bank's competences
Portugal, as well as to allow copies and trassides to be extracted from that
information.
21-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to determine the possibility for the Bank of Portugal to institute, when it is
reveal necessary to the effective instruction of the counterordinance process or to the safeguard
of the financial system or the interests of depositors, investors and too much
creditors, cautionary measures, in particular:
a) The imposition of conditions on the exercise of the activity by the accused, specifically
the fulfilment of special duties of information or certain rules
techniques, or the requirement for the application for prior authorization to the Bank of Portugal
for the practice of certain acts;
b) The preventive suspension of the exercise of certain activity, function or job title
by the accused;
c) The preventive closure, in whole or in part, of establishment where if
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exerts illicit activity.
22-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to determine that the regime of enforcement of the precautionary measures must respect
the principles of necessity, appropriateness and proportionality, being preceded by
hearing of the accused, except if such a puser at risk the goal or effectiveness of the measure.
23-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to determine that the regime for the implementation of the precautionary measures shall consact:
a) The immediate enforceability and cessation only with the court decision that
definitely revoke them, with the beginning of the fulfillment of ancillary sanction of
effect equivalent to the cautionary measure enacted or with its express revocation
by decision of the Bank of Portugal;
b) The mandatory discount on compliance with the incidental sanction of the time of
duration of the preventive suspension, when the suspension is determined
prevention of the exercise of the activity, function or post by the accused and this comes to
be sentenced, in the same process, in ancillary sanction that consists in inhibition
of the exercise of the same activities, functions or positions;
c) The enforceability of the decision to apply for a precautionary measure, having the appeal
immediate rise, in separate and with merely devolutive effect.
24-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to review the communications regime and notifications to be carried out in the framework of
processes of counterordinations, establishing that:
a) Communications are made by registered letter, fax, electro-mail or any
another means of telecommunication;
b) The communications which, pursuant to the general regime of the illicit of mere ordinance
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social, constant of the Decree-Law No. 433/82 of October 27, as amended by the
Decrees-Laws No 356/89, of October 17, 244/95, of September 14, and
323/2001, of December 17, and by Law No. 109/2001, of December 24 and
other expressly provided cases, hajam of redressing the form of notification,
are effected by registered letter with notice of revenue directed at the notifying or,
when it exists, to the defender's respect, or personally, if necessary through the
police authorities;
c) The notification of the procedural act that formally impugned to the accused the practice of
a counterordinance, as well as from the decision that applies to it fines, sanction
ancillary or some cautionary measure, is directed to the accused and, when it exists, to the
respect defender;
d) In the case of notification of the procedural act which formally impugn to the accused to
practice of a counterordinance, of a decision that applies to it fine, sanction
accessory or some cautionary measure, should the accused not be found, the
notification is effected by advertisement published in one of the newspapers of the locality of your
seat, permanent establishment or the last known residence in the Country or,
in case there is no newspaper or of the defendants not to have registered office, establishment
permanent or residence in the Country, in one of the journals of national scope;
e) Whenever the accused refuses to receive the notification, the agent certifying that
refusal, worth the act as notification.
25-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to establish the applicability of a pecuniary penalty up to 10 UC to
witnesses and experts who do not appear on the day, time and place designated for
the due diligence of the process, nor justifying the lack in the day itself or in the five working days
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following, or who, having attended, unjustifiably refuse to depose or to
exercise the respect function.
26-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to determine that autos are filed as soon as it has been collected proof
quite a lot of not having verified the infraction, of the agent not having practiced it to any
title or of being legally inadmissible the procedure and if it has not been possible
get sufficient evidence of the verification of the counterordinance or who your
agents and determine, too, that the process can only be reopened if new
evidence that invalidates the fundamentals invoked in the decision to
archiving and that the filing decision is communicated to the agent when it is
subsequent to the notification of the procedural part which formally impute to it the practice of
a counterordinance or, if it is earlier, when the same has already had some
intervention in the process.
27-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to limit to three the number of witnesses that the accused can indicate by each
infraction, and at twelve in total, determined, yet, that the one must discriminate against those that only
should testify about their economic situation and their past and subsequent conduct to the
facts, which they cannot exceed the number of two.
28-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to determine that the limits on the number of witnesses that the accused
may indicate may be outdated, the application of that duly
reasoned, provided that this appears essential to the discovery of the truth,
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specifically by the process to reveal itself of excecional complexity.
29-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to establish that the Bank of Portugal must communicate to the accused or its
defender, when there is, the additional representations of proof that, by their initiative,
perform after the submission of the defence, conferring deadline for, wanting, if
pronounce on those representations.
30-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government clarifies that the decision that applies fine contains, in addition to the already planned
in the General Regime, the indication of the evidence that they founded the decision and the
indication of the violated and sanctionatory legal norms and that the notification of the decision
it also contains the warning that the fine and, when it is the case, the costs, must
be paid within 10 working days after the decision becomes final or transiting into
judged, under penalty of whether to carry out its coercive collection and the indication of the terms in
that the conviction can be impugned judicially and become enforceable.
31-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to determine that the board of directors of the Bank of Portugal may
suspend, in whole or in part, the execution of the sanction, whenever it concludes that of that
shape are still carried out in a proper and sufficient manner the purposes of prevention,
without prejudice to the suspension of the penalty to be conditional upon compliance with certain
obligations, specifically those deemed necessary for the regularization of
illegal situations, the repair of damage or the prevention of dangers and, still, that
elapsed time of suspension without the accused having practiced any illicit
criminal or mere social ordinance for whose processing is competent the
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Bank of Portugal, and without having breached the obligations that have been found to you
imposed, if it considers itself to be extinguished the sanction whose execution had been suspended,
proceeding, in the contrary, to its execution, when it proves that the purposes
that were on the basis of the suspension could not, by means of it, be achieved.
32-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to make it simpler to calculate the expense in the framework of the processes of
counterordinance, establishing that, being several the defendants, the expense is rematches
by all in equal parts, only being due to the value concerning the defendants who
are convicted and that the costs are intended to cover the expenses incurred in the
process, specifically with notifications and communications, means of recording and
copies or certificates of the process, being your refund calculated to the reason of half
of 1 UC in the first 100 sheets or fraction of the processed and one-tenth of UC by
each subsequent set of 25 sheets or fraction of the processed.
33-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government reshapes the legal provisions referring to the sumptiest process,
determining that:
a) The applicable sanction is an admoestation or a fine whose concrete measure does not
exceeds the quadruple of the minimum threshold provided for the infraction or, if there are several
infractions, a single fine that does not exceed twenty times the minimum threshold more
high of the counterordinations in tender and, in any case, the adoption of a
certain and certain behaviour, as well as the application of the ancillary sanction
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of publication of the decision;
b) The decision contains the identification of the defendants, the summary description of the facts
imputed, the mention of the violated and sanctionatory legal norms and ends
with the admoestation or the specific ancillary indication or sanction
or, where applicable, of the determined behavior and the time frame for your
adoption, as well as the indication of the elements that contributed to the
determination of the sanction;
c) The defendants have a deadline of 10 working days to refer to the Bank of Portugal,
in the event that the sanction applied is an admoestation, written statement of acceptance
and, in the case that the sanction applied is a fine, written statement of acceptance or
proof of payment of the same;
d) The decisions rendered in summary proceedings are irrecurrable;
e) In the sumptute process it does not take place the payment of costs.
34-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to amend the legal provisions of the General Regime regarding the disclosure of the
decision, determining that:
a) The disclosure of the decision by excerpt shall include at least the identity of the
natural or collective person convicted and information about the type and nature of the
infraction, even if it has been judicially impugned, being, in this case, made
express mention of this fact;
b) The court decision confirming, amend or revoke the Bank's sentencing decision
of Portugal or the court of 1. th instance is mandatorily disclosed in the
terms of the preceding paragraph;
c) The disclosure takes place on regime of anonymity in case:
i) The penalty is imposed on a natural person and, following an assessment
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mandatory preview, if it demonstrates that the publication of personal data is
disproportionate in the face of the seriousness of the infraction;
ii) Disclosure puts into question the stability of financial markets or
undertakes an ongoing criminal investigation;
iii) Disclosure can, as far as it is possible to determine, cause damage
disproportionate in the face of the seriousness of the infraction to the credit institutions or
financial society or natural persons concerned.
d) Should it be provided that the circumstances justifying anonymity may cease
within a reasonable time, the publication of the identity of the natural person or collective
doomed may be postponed during that period;
e) The disclosed information is kept available on the website of the Bank of
Portugal for five years, counted from the time when the decision
condensation becomes definitive or transite on trial, may not be
indexed to search engines on the Internet;
f) The Bank of Portugal communicates to the European Banking Authority the sanctions
applied by the practice of counterordinations pursuant to the articles of the Regime
General to transpose Articles 65 to 67 of the Directive No 2013 /36/UE and the
situation and the outcome of the resources of the decisions that apply them.
35-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government expressly set out that, in case of appeal, there are several defendants,
the deadline for the Bank of Portugal to refer the autos to the Public Prosecutor's Office.
from the term of the deadline to interposition of the resource that ends in last place.
36-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to provide that the appeal of rulings of decisions rendered by the Bank of
Portugal only has suspensive effect if the appellant is warranted, within 20 days,
in the value of half of the fine imposed, unless shown to be shown, in an equal term, other than the
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may provide, in whole or in part, by insufficiency of means.
37-In the use of the legislative authorization conferred by the ( g) of Article 1 (1) may the
Government to determine that, in the event of an appeal, if there is a place the hearing of
trial, the court decides on the basis of the evidence held at the hearing, as well as in the
evidence produced at the administrative stage of the counterordinance process and to predict
expressly that it is not applicable to the proceedings of counterordinance instituted and
decided in the terms of the General Regime the principle of prohibition of reformatio in pejus .
Article 10.
Duration
The present legislative authorization has the duration of 180 days.
Seen and approved in Council of Ministers of April 28, 2014
The Prime Minister
The Minister of the Presidency and Parliamentary Affairs
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Antedesign of Decree-Law
Following the financial crisis of recent years, various initiatives have been realized
on the international plan for the strengthening of the financial system that culminated in the
publication, on the part of the Basel Committee on Banking Supervision, of a set of
measures aiming at the densification of the prudential regulatory framework applicable to institutions
of credit, designated by regulatory framework of Basel III. The set of measures is
wide, importing referring, by its relevance, the introduction of new requirements in the field
of the determination of own funds, with a view to improving the quality of respect and
quantity, the introduction of a non-risk-based supplementary measure to assess the
risk of leveraging in the banking system, the requirement for maintenance of liquidity levels
suitable in a short-and medium-long perspetive-long term through the introduction of two
measures for assessing liquidity risk and the introduction of a set of instruments
with the purpose of imposing additional reserves of own funds on credit institutions.
In the context of those international initiatives, developed with special focus on the
context of the G20, it is important to mention, at the level of the European Union, the High Level Group
on Financial Supervision, which invited the European Union to develop a joint
more harmonized measures of financial regulation. In this context, the Council
European also underlined the need to establish a unique set of rules
European applicable to all credit institutions and investment firms.
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The Directive No 2013 /36/UE, of the European Parliament and of the Council of June 26 of
2013 (Directive No 2013 /36/UE), and Regulation (EU) No 575/2013, of Parliament
European and of the Council of June 26, 2013 (Regulation (EU) No 575/2013)
they thus constitute the legal framework governing access to the activity of the institutions
of credit and which establishes the supervisory framework and prudential rules applicable to the
credit institutions and investment firms. The Directive No 2013 /36/UE and the
Regulation (EU) No 575/2013 implement in the European Union the regulatory framework
of Basel III, replacing Directive No 2006 /48/CE, of the European Parliament and of the
Council, of June 14, 2006, concerning access to the activity of credit institutions
and to their exercise (Directive No 2006 /48/CE), and Directive No 2006 /49/CE, of Parliament
European and of the Council of June 14, 2006 on the suitability of own funds
of the investment firms and credit institutions, which had already been subject, in the
last years, to various changes.
Thus, Directive No 2013 /36/UE contains standards regarding access to the activity of the
credit institutions, among which they include, inter alia, standards relating to
exercise of the freedom of establishment and freedom to provide services, to the
requirements on societarium government, including the remuneration of collaborators,
to the supervisory framework, to the powers of the competent authorities, to the regime
sanctionatory and the constitution of own fund reserves.
The Regulation (EU) No 575/2013, in turn, contains the prudential requirements
applicable to credit institutions and investment firms, notably new ones
rules on the clearance of own funds and the calculation of respect requirements, à
liquidity and leverage, including the transitional arrangements agreed upon at the level
international for the progressive convergence to the new requirements set out in the framework
regulation of Basel III.
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With the present decree-law proceeds to the transposition to the internal legal order of the
Directive No. 2013 /36/UE, introducing in the national legal order the changes
necessary for the implementation of the standards provided for in it. For the purpose of avoiding and
correct legislative dispersion in this matter and thereby facilitate access and understanding
by citizens of the standards applicable to the activity of credit institutions and
investment firms, has chosen to effect the transposition of the generality of the standards
for the General Regime of Credit Institutions and Financial Societies, approved by the
Decree-Law No. 298/92 of December 31 (General Regime).
The publication of Directive No 2013 /36/UE and of Regulation (EU) No 575/2013, allied to the
creation of the Single Supervision Mechanism, through which the European Central Bank
will pass on effective supervisory functions over certain credit institutions
national, came also to put the need to adjust the scope of typologies of
entities covered by the concept of "credit institution".
Although no change in the definition of "credit institution" is to be introduced, which
stated in Regulation (EU) No 575/2013 on the same terms in which it was found to
Directive No. 2006 /48/CE, the need to ensure a more harmonized application in the
European plan of this definition and of the new prudential regulation justified that if
introduce such adjustment.
In effect, to date, Member States have adopted different interpretations of the
concept of "credit institution", and may distinguish itself among those who have opted for
a more comprehensive interpretation so as to include in this concept a wide set of
entities enabled to pick up resources from the public-be it through deposits,
is by means of the issuance of bonds or other equiparable instruments-, and
those Member States which have restricted the concept of "credit institution" only to the
entities enabled to pick up deposits from the public.
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It is therefore proceeding to the reduction of the cast of entities deemed to be ' institution of
credit " upon, on the one hand, the extinction of the current typologies of credit institutions
which do not currently have practical reception by economic agents and, on the other hand, the
qualification of most of the rest as financial societies. The financial companies
do not become subject, therefore, to the entire acquis of prudential standards applicable to the
credit institutions arising from Directive No 2013 /36/UE and Regulation (EU)
n. 575/2013, becoming outrossim subject to the standards that are to be defined by the Bank
from Portugal. In this way, this amendment allows the reduction for those entities of the
context costs created by European regulation, making them more competitive in the
internal market.
In the matter of societarium government, and in concrete for the exercise of functions of
administration and surveillance, comes Directive No 2013 /36/UE to establish a set of
requirements as to the suitability of officeholders with such functions, in respect of
idoneity, qualification, professional experience, independence and availability, the
complementing by guidelines from the European Banking Authority, which want to contribute
for the sound and prudent management of the institutions, thus obliging a strengthening and adequacy
of the rules set out in the General Regime on that matter. It clarifies, thus, that the
liability for the choice of persons suitable for the performance of such functions is
always, in the first line, of the credit institutions. Competing for the Bank of Portugal
a prognosis doomsday subordinate to a preventive function, the evaluation to be promoted in
seat of idoneity of members of the administrative and supervisory bodies should consider
all relevant facts as to how the person habitually manages his / her
business and exercises its profession, having clarified that the analysis focuses on business
want professionals want personal, in line with the guidelines of the Banking Authority
European. In addition, such judgment shall not be limited, specifically, to be taken into account
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sentencing situations in judicial or other proceedings, and may cover any
pending processes.
Directive No. 2013 /36/UE also determines the compulsion to establish themselves and
maintain consenting policies and practices of remuneration with effective management of the
risks of the same, applicable to collaborators whose professional activity has an impact
significant in the risk profile of the institutions. In general terms are held in the Directive
n. 2013 /36/UE the provisions set out in Directive 2006 /48/CE and which were found to be
transposed through the Decree-Law No. 104/2007 of April 3, being at this stage
incorporated into the General Regime in the context of the objective of remediation of legislative dispersion
the one that rents out previously. However, with the purpose of strengthening the promotion of a
management of sound risks and not to encourage risk-taking at inappropriate levels by
of those collaborators, Directive No 2013 /36/UE introduces new rules as to the
structure and composition of the remunerations, in particular of their variable component, which
are now hosted in the national legal planning.
It is stressed that Directive No 2013 /36/UE confers on the European Banking Authority
competence to draw up technical standards of regulation that specify some of the
aspets covered by the diplomas that they ora amend, standards these will be, after the
necessary adoption by the European Commission, directly applicable in planning
Portuguese legal.
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It is also carried out by the introduction into the General Regime of an infractions cast and the
applicable sanctions, criteria for determining the measure of the fine and rules concerning the
disclosure of the decisions, following the forecast in Directive No 2013 /36/UE of a
common minimum framework in this field with a view to ensuring compliance with obligations
arising from that Directive and Regulation (EU) No 575/2013. In the domain
sanctionatory, introduce, still, amendments to the Act No 25/2008 of June 5, amended
by Decree-Law No. 317/2009 of October 30 by Law No. 46/2011 of June 24, and
by Decrees-Laws No 242/2012 of November 7, and 18/2013, of February 6, which
establishes measures of a preventive and repressive nature of combating the bleaching of
advantages of illicit provenance and the financing of terrorism, which it transposes to the
internal legal order to Directive No 2005 /60/CE, of the European Parliament and of the Council,
of October 26, 2005, and Directive No 2006 /70/CE of the Commission of August 1 of
2006, relating to the prevention of the use of the financial system and activities and occupations
specially designated for the purpose of money laundering and financing of the
terrorism.
Seeking to make the sanction regime envisioned in the General Regime more suitable and
efficient, some changes are still made in the same with the aim of contributing
for the streamlining of the process of counterordering and concurrent robustness of power
interventional of the Bank of Portugal, without however prejudice to the rights and guarantees of
defense of the accused. It is therefore understood to be the appropriate time to proceed to a
more in-depth reformulation of the sanctionatory regime, highlighting, by its importance,
the creation of a new cause of suspension of the prescription, the express prediction of a regime
of secret of justice, the introduction of stricter limits as to the production of the proof
testihal, the expansion of the applicability of the sumptified process and the harness, in the
judicial phase, from the evidence produced during the administrative phase.
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In transposition of Directive No 2013 /36/UE, it is also reinforces the catalogue of measures
corrections that the Bank of Portugal may impose, in case of non-compliance with standards
that discipling the activity of the institutions, which motivates the changes to the
General Regime in this matter.
Finally, with the present diploma, it introduces into the General Regime the possibility of the Bank
of Portugal to determine that credit institutions and certain investment firms
hold additional reserves of own funds, putting it in the way of the provision of the
supervisory authority a new cast of instruments aiming at mitigation of risks from
eminently systemic cariz made by the sector, in this way contributing to the
stability of the financial system.
The National Council of Financial Supervisors was heard, the Bank of Portugal, the
Commission of the Securities Market, the Insurance Institute of Portugal, the
Portuguese Association of Banks, the Portuguese Association of Insurance, the Association
Portuguese of Investment Funds, Pensions and Patrimias, the ASFAC-Association of
Specialized Credit Institutions, the ALF-Portuguese Leasing Association,
Factoring and Renting, the Portuguese Institute of Corporate Governance, the National Commission
of Data Protection and the European Central Bank.
Thus:
In the use of the legislative authorization granted by the Law n [Reg. PL 36/2014], and in the terms
of the points a ) and b ) of Article 198 (1) of the Constitution, the Government decrees the following:
Article 1.
Object
1-The present decree-law:
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a) Implements in the internal legal order Article 412 (5), paragraph 3 of the article
413, Article 458 (1) and Article 493 (3) of the Regulation (EU) No
575/2013, of the European Parliament and of the Council of June 26, 2013,
on the prudential requirements for credit institutions and for the
investment firms and amending Regulation (EU) No 648/2012, of the
European Parliament and of the Council of July 4, 2012;
b) Transposes to the internal legal order the Directive No 2013 /36/UE, of the
European Parliament and of the Council of June 26, 2013 on access to
activity of credit institutions and the prudential supervision of the institutions of
credit and investment firms, which alters Directive No 2002 /87/CE of the
European Parliament and of the Council of December 16, 2002 and repeal them
Directives n. ºs 2006 /48/CE and 2006 /49/CE, of the European Parliament and of the
Council, of June 14, 2006;
c) Amends the sanctionatory regime provided for in the General Regime of Credit Institutions
and Financial Societies, approved by the Decree-Law No. 298/92, of 31 of
December, and introduces diverse transversal enhancements on the same diploma;
2-In realization of the provisions of the preceding paragraph, the present decree-law shall carry out the
change:
a) From the General Regime of Credit Institutions and Financial Societies, approved
by Decree-Law No 298/92 of December 31;
b) Of the Securities Code, approved by the Decree-Law No. 486/99, of 13
of November;
c) Of Law No. 25/2008 of June 5, amended by Decree-Law No. 317/2009, of 30
of October, by Law No. 46/2011, of June 24, and by the Decrees-Laws n.
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242/2012, of November 7, and 18/2013, of February 6;
d) Of Law No. 28/2009 of June 19;
e) Of The Decree-Law No. 260/94 of October 22;
f) Of The Decree-Law No. 72/95 of April 15, amended by the Decrees-Laws n.
285/2001, of November 3, and 186/2002, of August 21;
g) Of The Decree-Law No. 171/95 of July 19, amended by the Decree-Law n.
186/2002, of August 21;
h) Of The Decree-Law No. 211/98 of July 16, amended by the Decrees-Laws
n. paragraphs 19/2001, of January 30, and 309-A/2007, of September 7;
i) Of The Decree-Law No. 357-B/2007 of October 31, amended by the Decree-Law
n. 52/2010 of June 26;
j) Of The Decree-Law No. 357-C/2007 of October 31, amended by the Decrees-Laws
n. ºs 52/2010, June 26, 18/2012, of February 6, and 40/2014, of 18 of
March;
k) Of The Legal Regime of Payment Services and Electrophic Currency, approved
by Decree-Law No. 317/2009 of October 30, as amended by the Decree-Law
n. 242/2012 of November 7;
l) Of The Legal Regime of Central Counterparties, Approved by the Decree-Law
n. 40/2014, of March 18.
Article 2.
Disclosure duties discriminated by country
1-Credit institutions and investment firms disclose, annually, on the basis of
consolidated and in relation to each economic exercise, the following information
disaggregated by country, whether it is a Member State of the European Union, or country
third, in which it has an establishment:
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a) Denomination, nature of activities and geographical location;
b) Volume of business;
c) Number of workers on an equivalent full-time basis;
d) Profits or losses before taxes;
e) Taxes paid on profits;
f) Public grants received.
2-The information referred to in the preceding paragraph shall be the subject of audit and of
publication in the annex to the annual financial statements or, as the case may be, to
consolidated financial statements of the credit institution or the company of
investment.
Article 3.
Amendment to the General Regime of Credit Institutions and Financial Societies
Articles 1, 3, 6, 9, 13, 14 to 18, 20 to 23, 30 to 33, 36 to 33, 36 to 33, 36.
37, 39 to 40.-A, 42, 48, 52, 53, 56, 56, 61, 69-69, 69, 69, 69, 69, 69.
72, 78 to 82, 93, 93.-A, 116, 116.-A, 116 to 116.-C, 117.-G, 118, 120.
124, 130 to 132.-, 132-C, 134 to 137, 137-B to 137.-D, 145.-B, 145.-F, 145-H,
145.-I, 152, 153.-M, 155, 184, 189, 196, 199, 199, 199.-M, 199.
199.-I, 199.-L, 201 to 206, 208 to 213, 222 to 224, 227 to 228, and 228.-228
230. of the General Regime of Credit Institutions and Financial Societies (Regime
General), approved by the Decree-Law No. 298/92 of December 31, go on to have the following
essay:
" Article 1.
Object
1-The present diploma regulates:
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a) The access to activity and respect for exercise by the institutions of
credit and financial companies;
b) The exercise of supervision of credit institutions and societies
financial, respect powers and instruments.
2-[ Revoked ].
Article 3.
Types of credit institutions
They are credit institutions:
a) [...];
b) [...];
c) [...];
d) [...];
e) [ Repealed ];
f) [ Repealed ];
g) [ Repealed ];
h) [ Repealed ];
i) [ Repealed ] ;
j) [ Repealed ];
k) [...];
l) [...].
Article 6.
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Types of financial companies
1-Are financial societies:
a) The investment companies referred to in Article 4;
b) The financial institutions referred to in subparagraphs ii ) and iv ) of the paragraph s )
of Article 2, -A, in which they include:
i) Credit financial companies;
ii) The mortgage credit institutions;
iii) The investment companies;
iv) The financial leasing companies;
v) The societies of factoring ;
vi) The societies of mutual guarantee;
vii) The managing companies of investment funds;
viii) The regional development societies;
ix) The foreign exchange agencies;
x) The holding companies of securitisation funds of credits;
xi) The financial companies of microcredit;
c) [ Repealed ];
d) [ Repealed ];
e) [ Repealed ];
f) [ Repealed ];
g) [ Repealed ];
h) [ Repealed ];
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i) [ Repealed ];
j) [ Repealed ];
l) Other companies that, corresponding to the definition of society
financial, be as such qualified by the law.
2-[...].
3-[...].
4-[...].
Article 8.
[...]
1-[...].
2-[...].
3-[...]:
a) [...];
b) [...];
c) European Investment Bank and other international bodies
public that Portugal is a part of and whose legal regime provides for
faculty of receiving from the public, in national territory, funds
refundable;
d) [...].
4-[...].
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Article 9.
[...]
1-For the purposes of this General Regime, they are not considered as
refundable funds received from the public the funds raised by
issuance of obligations, in the terms and limits of the Companies Code
Trade or applicable legislation, nor the funds raised through the
issuance of commercial paper, in the terms and limits of applicable law.
2-[...].
Article 13-The
[...]
1-For the purposes of the vomiting of a qualified participation, they are considered,
in addition to those inherent in the actions of which the participant has the title or the
usufruct, the voting rights:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
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h) [...];
i) [...].
2-[...].
3-[...].
4-[...].
5-[...].
6-[...].
Article 14.
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) [...];
i) [...];
j) Having in the governing bodies and supervisory bodies whose
idoneity, professional qualification, independence and availability,
either the individual title, or at the level of the bodies as a whole,
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guarantees of sound and prudent management of the credit institution.
2-The conditions laid down in points f ) a i ) of the previous number must be
filled in full and proportional to the risks inherent in the
business model and the nature, level and complexity of the activities of
each credit institution, and should be taken into account the
technical criteria provided for in Articles 115-A to 115.-F, 115.-H and 115.
at 115 .º-V.
3-[ Previous Article No 2 ].
Article 14-The
Waivers
1-The Bank of Portugal can dispense with the credit institutions based on
Portugal that are permanently affiliated in a central body
that the supervise and which also has registered office in Portugal, total or
partially, of the fulfilment of the requirements and obligations elenced in the
number following case there is legislation which, in relation to such institutions and
to that central body, provide for the following:
a) [...];
b) [...];
c) [...].
2-Can be the object of the dispensation referred to in the preceding paragraph:
a) The requirements set out in Article 15 (2), paragraph 2 b ) of paragraph 1 of the
article 17 and in Article 115-J;
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b) [ Repealed ];
c) [ Repealed ].
3-A dispensation is without prejudice to the application of the obligations referred to in the number
previous to the central body and depends on the subjection of the set
made up of this and the institutions in it affiliated with such requirements and
obligations on a consolidated basis.
4-In the event of dispensation, Chapters I and II of Title III, Chapter II-C of the
title VII, the paragraphs 9 and 10 of Article 116-K and Title VII-A apply to the
set consisting of the central body and the institutions in it
affiliated.
Article 16.
[...]
1-A The constitution of credit institutions depends on authorization to be granted,
case by case, by the Bank of Portugal.
2-[ Revoked ].
3-A permission granted and the elements relating to obtaining permission
are communicated to the European Banking Authority.
4-[ Revoked ].
5-[ Revoked ].
6-[ Revoked ].
Article 17.
[...]
1-[...]:
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a) Characterization of the type of credit institution to be constituted and project
of a contract of society;
b) Program of activities, with indication of the type of operations a
carry out, geographical deployment, organic structure and human means,
technicians and materials used, as well as predictive accounts for
each of the first three years of activity;
c) [...];
d) Reasoned exposure on the suitability of the shareholder structure to
stability of the credit institution;
e) [...].
f) [...];
g) Identification of members of the administrative and supervisory bodies
with justification from the bidders as to the suitability of the same
to ensure a sound and prudent management of the credit institution.
2-[...].
3-The devices, processes, procedures, mechanisms, policies and practices
anticipated in the preceding paragraph shall be complete and commensurate with the
risks inherent in the business model and the nature, level and complexity
of the activities of each credit institution, and should be taken in
consideration of the technical criteria set out in Articles 115-to 115-F,
115.-H and 115. º-K to 115 .º-V.
4-The following information concerning the following is still to be presented
founding shareholders who are collective people holder of
qualified participations in the credit institution to be constituted:
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a) [...];
b) [...];
c) [...];
d) [...].
5-[...].
6-[...].
Article 18.
[...]
1-[...].
2-[...].
3-The provisions of paragraph 1 shall also apply when the institution of credit to
constitute for a subsidiary of an insurance company or of a company of
authorized investment in foreign country, or is subsidiary of the parent company
of company in these conditions or is dominated by the same people
singular or collective that dominates an insurance company or a
authorized investment company in foreign country.
Article 20.
[...]
1-[...]:
a) [...];
b) [...];
c) The credit institution to be constituted not to comply with the general requirements
of authorisation provided for in Article 14;
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d) [...];
e) [...];
f) The appropriate supervision of the credit institution to be constituted
invitatiated by a close relationship between the institution and others
people;
g) The appropriate supervision of the credit institution to be constituted
unviable, or severely impaired, by the legal provisions or
regulations of a third country to which it is subject to some of the
people with whom the credit institution has a relationship
narrow or by difficulties inherent in the application of such provisions;
h) The members of the body of administration or surveillance who do not
comply with the requirements of idoneity, professional qualification,
independence or availability in the terms of Articles 30 to 33.
2-[...].
3-The economic needs of the market may not constitute grounds for
refusal of authorization.
Article 21.
[...]
1-A The permit lapses if the credit institution does not start its activity
within 12 months.
2-[...].
3-[...].
Article 22.
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[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) If, for a period of more than six months, the credit institution ceases to
activity or to reduce to negligible level;
e) If there are serious irregularities in the administration, organisation
accounting or internal audit of the credit institution;
f) If the credit institution is unable to honour its commitments,
in particular as to the security of the funds that have been
entrusted;
g) If the credit institution does not comply with the obligations arising from the
your participation in the Deposit Guarantee Fund, in the Fund of
Resolution or in the System of Compensation to Investors;
h) If the credit institution violates the laws and regulations that
discipline your activity or not observe the determinations of the
Bank of Portugal, so as to endanger the interests of the
depositors and too many creditors or the normal conditions of
operation of the monetary, financial or currency market;
i) If the credit institution expressly waive the authorization,
except in the case of voluntary dissolution pursuant to the provisions of the
article 35-The;
j) If the members of the organs of administration or surveillance do not
to give, in a perspetive of the organ as a whole, guarantees of a
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sane and prudent management of the credit institution;
k) If the credit institution violates, in a serious or repeated manner, the
legal or regulatory provisions intended to prevent the
money laundering and the financing of terrorism;
l) If the credit institution fails to comply with the prudential requirements
relating to the requirements of own funds, the rules on the
major risks or the rules of liquidity;
m) If the credit institution commits one of the infractions to which the
article 211 para.
2-A revocation of the authorisation on the basis of the plea referred to in
point ( j) of the previous number grounded in the verification that the
members of the governing bodies or surveillance, as a result of the
non-compliance with the measures provided for in Article 32, they have left in their
set to give sound and prudent management guarantees from the credit institution.
3-A revocation of the authorization granted to a credit institution that
has branches in other Member States of the European Union is
preceded by consultation with the supervisory authorities of those States-
Members, and may, however, in cases of extreme urgency, replace the
consultation by simple information, accompanied by justification of the resource a
this simplified procedure.
4-A The revocation of the authorisation implies dissolution and settlement of the institution of
credit, save if, in the case indicated in the points d ) and i ) of paragraph 1, the Bank of
Portugal dispense it.
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Article 23.
[...]
1-[...].
2-A The decision to revocation must be substantiated, notified to the institution of
credit and communicated to the European Banking Authority and the authorities of
supervision of the Member States of the European Union where the institution of
credit has branches or pay services.
3-The Bank of Portugal gives the decision to revocation the convenient advertising and
takes the necessary arrangements for the immediate closure of all the
establishments of the credit institution, which hold up to the beginning of
functions of the liquidators.
4-[...].
Article 30.
General provisions
1-A suitability, for the exercise of the respective functions, of the members of the
administrative and supervisory bodies of credit institutions is subject
the assessment for the exercise of the office and in the course of its entire term.
2-A The suitability of members of the administrative and supervisory bodies
consists of the ability to ensure, in permanence, guarantees of management
sound and prudent of credit institutions, having in view, in a way
particular, the safeguarding of the financial system and the interests of the
respects customers, depositors, investors and too many creditors.
3-For the purposes of the preceding paragraph, the members of the governing bodies and
supervision must comply with the requirements of suitability, qualification
professional, independence and availability to which the articles relate
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following.
4-In the case of collegial bodies, the individual assessment of each member shall be
accompanied by a collective appreciation of the organ, with a view to checking
if the organ itself, considering its composition, gathers qualification
professional and availability sufficient to fulfil the respective functions
legal and statutory in all relevant areas of acting.
5-A evaluation of members of the administrative and supervisory bodies
comply with the principle of proportionality, considering, among others
factors, the nature, the dimension and the complexity of the institution's activity
of credit and the requirements and responsibilities associated with the functions
concrete to play.
6-A internal policy of selection and evaluation of the members of the organs of
administration and surveillance should promote the diversity of qualifications and
competencies required for the exercise of the function, setting goals for
the representation of men and women and devising a targeted policy
increasing the number of persons of the genus underrepresented with a view to
achieve the aforementioned objectives.
7-The Bank of Portugal collecates and analyzes the information on the practices of
diversity and communicates it to the European Banking Authority.
8-The Bank of Portugal regulates the scheme provided for in this Chapter.
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Article 31.
[...]
1-Members of the administrative and supervisory bodies shall demonstrate
who possess the skills and qualifications necessary for the exercise of the
its functions, acquired through academic or training habilitation
specialist appropriate for the office to exercise and through experience
professional with duration and levels of responsibility that are in
consonance with the characteristics, complexity and dimension of the
credit institution, as well as with the risks associated with the activity by
this developed.
2-A training and the prior experience must possess sufficient relevance
to enable the holders of those positions to understand the functioning and
the activity of the credit institution, assess the risks to which the same is
finds exposed and critically analyzing the decisions made.
3-The Bank of Portugal may hold consultations relating to the verification of the
fulfillment of the requirement of professional qualification with authority
competent, which, in the exercise of its assignments, is in a condition of
issue reasoned opinion on the matter.
4-The members of the supervisory body and the members of the organ of
administration that does not exercise executive functions should possess the
skills and qualifications that enable them to make an assessment
critique of the decisions taken by the governing body and scrutinize
effectively the function of this.
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5-The organs of administration and surveillance shall have, in terms of
collectives, knowledge, skills and appropriate experience.
Article 32.
Lack of supervenient suitability
1-Credit institutions communicate to the Bank of Portugal, as soon as they
take notice, any facts supervenient to the authorisation for the
exercise of functions that may affect the requirements of idoneity,
professional qualification, independence or availability of the person
authorized, on the same terms in which these should have been or would
communicated for the purposes of the submission of the application for the authorisation for the
exercise of functions, by reference to the provisions of Articles 30 to 31 .ºA.
2-It is considered overdue both the facts that occurred subsequently to the
granting of the authorisation, such as the previous facts that there is only
knowledge after this.
3-The duty set out in paragraph 1 considers itself to be met if the communication is
made by the very people to whom the facts are respectful.
4-Case, for any reason they cease to be fulfilled the requirements of
idoneity, professional qualification, independence or availability of
a particular member or, as a whole, of the body of administration
or surveillance, the Bank of Portugal may adopt one or more of the following
measures:
a) Set a deadline for the adoption of the appropriate measures to
compliance with the missing requirement;
b) Suspend the authorization for the exercise of member functions in
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cause, for the period of time necessary to the sanction of the lack of the
identified requirements;
c) Set a deadline for changes in the distribution of pelgoles;
d) Set a deadline for changes in the composition of the organ concerned and
presentation to the Bank of Portugal of all information
relevant and necessary for the assessment of suitability and authorization
of substituted members.
5-The Bank of Portugal communicates the measures referred to in the preceding paragraph
people in question and to the credit institution, which they take the arrangements
necessary for the respect of implementation.
6-A non-adoption of providences by the person concerned or the
credit institution at the prescribed time limit may determine the revocation of the
authorization for the exercise of duties of the member concerned.
7-A adoption of the measure referred to in para. d ) of paragraph 4 and the occurrence of the
circumstance predicted in the previous number determine the corresponding
averaging to the record of the severance of duties of the member concerned.
8-Having been determined the suspension of the authorisation under the subparagraph b )
of paragraph 4, the same only cesses its effects after decision of the Bank of
Portugal.
9-The provisions of this Article shall apply, with the necessary adaptations, to the
branch managers and representative offices provided for in the article
45.
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Article 33.
[...]
1-The Bank of Portugal may object to the members of the organs of
administration or oversight of credit institutions exercise functions
of administration or surveillance in other entities if it is understood that the
accumulation is susceptible to prejudice to the exercise of the functions that the
interested already perform, notably because there are serious risks of
conflicts of interest or by such a fact result in lack of availability
for the exercise of the post, in terms of the regulation by the Bank of
Portugal.
2-In its assessment, the Bank of Portugal must meet the circumstances
concrete of the case, the particular demands of the office and the nature, scale and
complexity of the activity of the credit institution.
3-Without prejudice to the provisions of paragraph 1, it is vetted to the members of the organs of
administration and oversight of significant credit institutions in
function of its size, internal organisation, nature, scope and
complexity of your activities, accumulate more than one post
executive with two non-executives, or four non-executive positions.
4-For the purposes of the provisions of the preceding paragraph, a single post is considered
the executive or non-executive positions in an administration body or
supervision of credit institutions or other entities that are
included in the same supervisory perimeter on consolidated basis or in the
which the credit institution holds a qualified participation.
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5-The provisions of paragraph 3 shall not apply to members of the organs of
administration and oversight of credit institutions that benefit from the
excecional intervention of the State and which have been by this designated.
6-Are excluded from the limit provided for in paragraph 3 the posts performed in
entities that have per main object the exercise of activities of
non-commercial nature, save if, by its nature and complexity, or
by the dimension of the respect entity, if it shows that there are serious risks
of conflicts of interest or lack of availability for the exercise of the
job at the credit institution.
7-The Bank of Portugal may authorize the members of the organs of
administration and surveillance covered by the provisions of paragraph 3 a to accumulate
an additional non-executive post.
8-The Bank of Portugal informs the European Banking Authority of the
authorisations granted in the terms of the preceding paragraph.
9-Credit institutions must have rules on prevention,
communication and sanction of situations of conflicts of interest, in terms
to be regulated by the Bank of Portugal, which shall constitute part of
member of the internal policy of assessment provided for in paragraph 2 of the article
30 .º-A.
10-In the case of duties to be exercised in entity subject to the supervision of the Bank
of Portugal, the power of opposition exercises in the context of the application for
authorization of the member for the exercise of the office.
11-For the purposes of the previous number in the remaining cases, the institutions of
credit must communicate to the Bank of Portugal the pretension of the
interested in the minimum 30 days ' notice on the expected date
for the beginning of the new functions, understanding, in the lack of decision within
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of that time limit, which the Bank of Portugal is not opposed to accumulation.
Article 36.
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) Identification of the managers of the branch.
2-[...].
3-A opening of new establishments in a Member State in which the
credit institution already has a branch only lacks the communication
of the new address, in the terms provided for in Article 40 para.
Article 37.
[...]
1-[...].
2-The amount and composition of the funds will also be communicated
own and the creditworthiness ratio of the credit institution, as well as a
detailed description of the deposit guarantee system of which the
same institution participates and that ensures the protection of depositors of the
branch.
3-[...].
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Article 39.
[...]
Noted the provisions of the previous articles, the branch office may effect in the country of
hosting the operations set out in the list of Annex I to the Directive
n. 2013 /36/UE, of the European Parliament and of the Council, of June 26 of
2013, that the institution is authorised to effect in Portugal and are
mentioned in the programme of activities referred to in the b ) of the Article 1 (1)
36.
Article 40.
[...]
1-In the event of modification of some of the elements referred to in points b ) a
d ) of Article 36 (1) or of the deposit guarantee system referred to in the
n Article 37 (2), the credit institution communicates it, in writing and by the
less than one month in advance, to the Bank of Portugal and the authority
of supervision of the country where it has established the branch.
2-[...].
Article 40-The
[...]
1-[...]:
a) [...];
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b) Important sanctions and extraordinary arrangements adopted by the
Bank of Portugal, including the imposition of additional requirements of
own funds, pursuant to Article 116-C, and of limits to
use of the advanced measurement method for the calculation of the
requirements of own funds under Article 312 (2) of the
Regulation (EU) No 575/2013, of the European Parliament and of the
Council, of June 26, 2013;
c) The results of the credit institution's risk assessments;
d) The joint decisions that have been made under the
specific prudential requirements;
e) Any decisions made in the framework of the exercise of powers of
supervision under Article 116-C, para. a ) of paragraph 1 of the
article 116-D and Article 116-M;
f) Possible imposition of specific liquidity requirements.
2-[...].
3-[...].
4-In cases where Article 135-B is not applicable, the Bank of Portugal, in the
quality of authority responsible for the exercise of the supervision of a
credit institution with significant branches in other States-
Members, shall establish and preside over a college of authorities of
supervision intended to facilitate cooperation under paragraphs 1 a to 3 and of the
article 122, being applicable, with due adaptations, the provisions of the
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n. paragraphs 4, 6 and 7 of Article 135.-B.
5-The Bank of Portugal consults with the competent authorities of the States-
Host members on the operational measures required by
immediate application of the liquidity recovery plans taken by the
credit institution, if this is relevant to the liquidity risks in the
currency of the host Member State.
Article 42.
[...]
1-[...].
2-The Bank of Portugal may refuse the claim with founded reason,
in particular by the administrative structures or the financial situation of the
credit institution being unsuitable to the project, or by exist
obstacles that prevent or hinder the control and inspection of the branch
by the Bank of Portugal.
3-[...].
4-[...].
5-[...].
6-In the event of modification of some of the elements referred to in points b ) a
d ) of Art. 36 (1), the credit institution communicates it, in writing and
at least with one month in advance, to the Bank of Portugal.
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Article 43.
Freedom to provide services in the European Union
1-A credit institution with registered office in Portugal wishing to start in another
State Member of the European Union providing constant services of the
list of Annex I to Directive No 2013 /36/UE, of the European Parliament and of the
Council, of June 26, 2013, which is authorized to effect
Portugal and which are not provided by means of establishment
permanent that posits in the country of residence of the recipient of the provision
must notify the Bank of Portugal in advance, specifying the activities
that it is proposed to exercise in that state.
2-[...].
3-[...].
Article 48.
[...]
The provisions of this Section shall apply to the establishment in Portugal of
branches of credit institutions authorized in other Member States of the
European Union or in States belonging to the European Economic Area
and subject to the supervision of the authorities ' respective respects.
Article 49.
[...]
1-[...].
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2-[...].
3-A opening of new establishments in Portugal by institution of
credit that already has branch office in Portugal only lacks the communication of the
new address, in the terms provided for in Article 51.
Article 52.
[...]
Observed that it is the provisions of the previous articles, the branch office may
in Portugal the operations set out in the list of Annex I to Directive No
2013 /36/UE, of the European Parliament and of the Council of June 28, 2013,
that the credit institution is authorized to carry out in its country of origin and
which build on the activity program referred to in the ( a ) of the Article 1 (1)
49.
Article 53.
[...]
1-When you check that a branch office does not comply, or that there is a risk
significant not to comply, the provisions that are applicable to it, including
the national law on the supervision of liquidity, the implementation of the policy
monetary or the duty of information on operations carried out in
Portuguese territory, the Bank of Portugal orders you to put an end to the
irregularity or take action to avoid the risk of non-compliance.
2-[...].
3-Should the supervisory authority of the State of origin do not take the
providences requested, or these are dissuitable and the branch persists
in violation of the applicable standards, the Bank of Portugal may:
a) After informing this fact the supervisory authority of the State of
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source, make arrangements that understand convenient to
prevent or repress new irregularities, specifically by obstinate
to which the branch starts new operations in Portugal;
b) Refer the matter to the European Banking Authority and apply for
your assistance pursuant to Art. 19 of the Regulation (EU)
n 1093/2010, of the European Parliament and of the Council, of
November 24, 2010.
4-Are communicated to the European Commission and to the European Banking Authority the
number and the nature of cases in which arrangements have been made
under the terms of the ( a ) of the previous number.
5-In the event of an urgency, the Bank of Portugal may, before enticing the
procedure set out in the previous figures, take all measures
cautionary required to prevent financial instability that is susceptible
of constituting a serious threat to the collective interests of the
depositors, investors and other persons to whom the branch is to pay
services, including the suspension of payments, giving knowledge of these
measures, with the greatest brevity, to the supervisory authorities of the states-
Members of the European Union interested, the European Commission and the
European Banking Authority.
6-[...].
7-[...].
8-The cautionary measures adopted pursuant to paragraph 5 cease in cases in
that the country of origin takes sanitation measures or when the Bank of
Portugal understands that such measures are no longer justified.
Article 56-The
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[...]
1-[...].
2-[...]:
a) [...];
b) The likely impact of a suspension or closure of the
operations of the credit institution on systemic liquidity and the
systems for payment, clearing and settlement in Portugal; and
c) [...].
3-[...].
4-[...].
5-[...].
6-[...].
7-[...].
8-[...].
9-The provisions of the preceding paragraphs shall also apply, with the
necessary adaptations, to the applications submitted to the Bank of Portugal
by the competent authorities of a host Member State
for the qualification of a branch of a credit institution subject to the
supervision of the Bank of Portugal as significant.
10-If the Bank of Portugal understands that the operational measures concerning the
application of the credit institution's liquidity recovery plans
are not suitable, may refer the matter to the Banking Authority
European and apply for your assistance pursuant to Article 19 of the
Regulation (EU) No 1093/2010, of the European Parliament and of the
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Council, of November 24, 2010.
Article 57.
[...]
1-The establishment in Portugal of branches of credit institutions no
understood in Article 48 shall be subject to the provisions of this Section, in the
n Article 17 (3), in Articles 19, 21 and 22, in Article 49 (2) and 3 (3)
and in Articles 54 and 55.
2-The conditions of authorisation and operation applicable to the branches of
third countries established in Portugal may not result in a treatment
more favorable than the one of which benefits the branches of
Member States of the European Union.
Article 58.
[...]
1-The establishment of the branch depends on authorization from the Bank of
Portugal.
2-The application for permission shall be instructed with the elements provided for in paragraph 1 of the
article 49 and, still, with the following:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...].
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3-[...].
4-[...].
Article 60.
Freedom to provide services in Portugal
Credit institutions authorised in another Member State of the Union
European to provide in your country of origin the constant services of the list of the
Annex I to Directive No 2013 /36/UE, of the European Parliament and of the Council,
of June 26, 2013, they may provide such services in Portuguese territory,
as yet they do not own establishment in Portugal.
Article 61.
[...]
1-It is a condition of the beginning of the provision of services in Portugal that the institution
of credit notifies the competent authority of the Member State of
origin.
2-[...].
3-[...].
Article 66.
[...]
The registration of credit institutions with registered office in Portugal covers the
following elements:
a) Firm or denomination and, where applicable, brand or designation
commercial;
b) [...];
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c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) Identification of members of the governing bodies and of
supervision and the desk of the general meeting of the credit institution;
i) Delegations of management powers, including, as to the members of the
organs of administration, the allocation of pelgoles or functions
executive;
j) [...];
k) The exercise of the provision of services under Article 43;
l) Place and date of establishment of subsidiaries, branches, agencies and offices of
representation;
m) Identification of the managers of the branches and offices of
representation established abroad;
n) [ ... ];
o) [...].
Article 67.
[...]
The registration of authorized credit institutions in foreign country and which
have branches or office of representation in Portugal covers the
following elements:
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a) Firm or denomination and, where applicable, brand or designation
commercial;
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) [...].
Article 69.
[...]
1-The registration of members of the organs of administration and surveillance shall be
requested after the respective authorisation by the Bank of Portugal, upon
application from the credit institution, which must indicate the date of the respective
commencement of functions and that, in the cases of prior authorization in the terms
set out in Article 30 (3)-B, shall be accompanied by copy of the
minutes from which it consents the deliberation of the designation of the stakeholders.
2-[ Revoked ].
3-[ Revoked ].
4-[...].
5-[ Revoked ].
6-[ Revoked ].
7-[ Revoked ].
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8-[ ... ].
9-[ Revoked ].
Article 70.
[ ... ]
1-[ Revoked ].
2-[ Revoked ].
3-[ Revoked ].
4-Case the Bank of Portugal, on the basis of the facts communicated by the
credit institution, in the circumstances provided for in Article 32 or in
any others who are of your knowledge, decide to take any of the
measures provided for in the same article, these must appear in the register through
of the:
a) Averaging to the record of the temporary suspension of the exercise of
functions of the member of the board of directors or surveillance by the
period that last the suspension;
b) Lifting of suspension averaging after adoption of the
measures determined under Article 32;
c) Cancellation of the registration, following the revocation of the authorisation
for the exercise of duties of the member concerned, or when the
even be replaced, depending on the fact that occurs in the first
place.
5-[ Revoked ].
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95
6-[ Revoked ].
7-[ Revoked ].
Article 71.
[...]
1-[ ... ].
2-Are not subject to deadline for the initial registration of credit institutions, the
habilitation for the establishment in Portugal of entities based in the
foreign, as well as any others without effectuation of which are not
allowed the exercise of the activity.
3-[ ... ].
4-[ ... ].
5-[ ... ].
Article 72.
[...]
[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) When you check that you are not filled in any of the conditions
that it depends on the necessary permission for the constitution of the
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institution or for the exercise of the activity.
Article 78.
[...]
1-The members of the governing bodies or audit of the institutions of
credit, its employees, mandators, commissioners and other persons who
provide them with services on permanent or occasional title cannot reveal
or use information on facts or elements relating to the life of the
institution or the relationships of this with its clients whose knowledge
adheres exclusively to the exercise of their duties or the provision of the
your services.
2-[...].
3-[...].
Article 79.
[...]
1-[...].
2-[...]:
a) [...];
b) [...];
c) To the Deposit Guarantee Fund, to the System of Compensation to the
Investors and the Resolution Fund, in the context of the respective
attributions;
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d) [...];
e) [...];
f) [...].
3-[ Revoked ].
Article 80.
Duty of secrecy from the Bank of Portugal
1-[...].
2-[...].
3-[...].
4-[...].
5-It is equally resonated from the duty of secrecy to communication to others
entities by the Bank of Portugal of centralized data, pursuant to the
respect legislation.
Article 81.
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [ ... ];
f) [...];
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g) [...];
h) Bodies responsible for the maintenance of the stability of the system
financial in macroprudential optics;
i) Bodies responsible for restructurings aimed at preserving the
stability of the financial system;
j) Institutional protection systems referred to in Article 7 (7)
113. of Regulation (EU) No 575/2013 of the European Parliament and
of the Council, of June 26, 2013, and the responsible authorities
by its supervision;
k) Entities responsible for the application, the monitoring and the
funding for resolution and recapitalisation measures;
l) Clearing houses or any other similar body
recognized by national law to ensure clearing services
or of settlement of contracts in one of the respective markets
national.
2-The Bank of Portugal may also exchange information with the following
entities if such information is relevant for the exercise of the respects
attributions:
a) [...];
b) The European Systemic Risk Committee, pursuant to the provisions of the
Regulation (EU) No 1092/2010 of the European Parliament and of the
Council, of November 24, 2010;
c) The European Securities and Markets Authority, in the
terms of the relevant European directives and the Regulation (EU)
n 1095/2010, of the European Parliament and of the Council, of 24 of
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november 2010;
d) The European Insurance and Occupational Pensions Authority
Reform, created by Regulation (EU) No 1094/2010, of the
European Parliament and of the Council of November 24, 2010.
3-[...].
4-[...].
5-[...].
6-The information received by the Bank of Portugal under the terms of the
provisions relating to exchange of information may only be used:
a) [...];
b) [...];
c) [...];
d) In the context of lawsuits that have per object decisions
taken by the member of the Government responsible for the area of finance
or by the Bank of Portugal in the exercise of its functions of
supervision and regulation;
e) [...];
f) To ensure the correct functioning of the systems of
compensation in case of default, yet potential, by
part of the players in that market.
7-The Bank of Portugal can only communicate information that it has received
of entities from another Member State of the European Union or of countries not
members with the express consent of such entities and, if it is the case,
exclusively for the authorized effects.
Article 82.
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[...]
The cooperation agreements referred to in Article 81 (3) may only be
celebrated when the information to be provided benefit from guarantees of secrecy
at least equivalent to those set out in the present General Regime and have
by objective the performance of supervisory functions that are committed to the
entities concerned.
Article 93.
[...]
1-A supervision of credit institutions, financial companies,
mixed financial companies, in particular their prudential supervision,
including that of the activity that they exercise abroad, lies with the Bank of
Portugal, in accordance with its Organic Law and the present General Regime.
2-[...].
3-[...].
4-In the exercise of its competences, the Bank of Portugal takes into account the
convergence with respect to the instruments and supervisory practices in the
law enforcement and regulation adopted by force of the Directive n. para.
2013 /36/UE and of Regulation (EU) No 575/2013, both of Parliament
European and of the Council of June 26, 2013, in particular in the framework
of the participation in the European Financial Supervisory System.
5-For the purposes of the provisions of the preceding paragraph, the Bank of Portugal:
a) Cooperates with supervisory authorities and too many entities
members of the European Financial Supervisory System, according
with the principle of the fair cooperation provided for in Article 4 (3) of the
Treaty of the European Union, ensuring, in particular, a flow
adequate and reliable of information;
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b) Participates in the activities of the European Banking Authority and the
colleges of supervisory authorities;
c) Develops all efforts to comply with the guidelines and
recommendations issued by the European Banking Authority and to
respond to the alerts and recommendations issued by the Committee
European of Systemic Risk;
d) Cooperates in a close manner with the European Risk Committee
Systemic.
6-A The pursuit of the other legal assignments of the Bank of Portugal should not
interfere with or impair the performance of your legal competencies of
supervision, specifically within the framework of the European Banking Authority or
of the European Systemic Risk Committee.
Article 93-The
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) Aggregated statistical data for fundamental aspets of the
application of the prudential framework, including the number and nature of the
corrective supervision measures taken in the terms of paragraph 1 of the
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article 116-C;
e) The general criteria and the methodologies adopted to check the
compliance with the requirements applicable to the investment institutions and to the
sponsor institutions provided for in articles 405 to 409 of the
Regulation (EU) No 575/2013, of the European Parliament and of the
Council, of June 26, 2013;
f) Without prejudice to the duty of secrecy, a summary description of the
result of the exercise of supervision and the description of the measures
imposed in the cases of violation of the requirements referred to in paragraph
previous, identified annually.
2-A disclosure of the information provided for in points a ) a d ) of the previous number
should be sufficient to allow a comparison with the methods
adopted by the competent authorities of other Member States of the
European Union.
3-The information provided for in points a ) a d ) of paragraph 1 shall be published
in a format identical to that used by the competent authorities of the
other Member States of the European Union and regularly updated,
owing to be accessible from a single electro address.
4-Should the Bank of Portugal exercise the faculty provided for in Article 7 (3).
of Regulation (EU) No 575/2013, of the European Parliament and of the
Council, of June 26, 2013, disseminates the following information:
a) The criteria applied to determine whether there are impediments
significant, in law or in fact, current or anticipated, to a
quick transfer of own funds or the immediate refund of
liabilities;
b) The number of credit institutions-mother who benefit from the exercise
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of the faculty provided for in Article 7 (3) of the said Regulation
and, among these, the number of credit institutions with branches in
third countries;
c) On an aggregated basis for Portugal:
i) The total amount of own funds on consolidated basis of the
credit institutions-mother who benefit from the exercise of the
faculty provided for in Article 7 (3) of the said
Regulation and to be held in subsidiaries located in countries
third parties;
ii) The percentage of total own funds on consolidated basis
of the credit institutions-mother who benefit from the exercise of the
faculty provided for in Article 7 (3) of the said
Regulation, represented by own funds held in
subsidiaries located in third countries;
iii) The percentage of the total funds of the own in the terms of the
Article 92 of the said Regulation on consolidated basis of
credit institutions-mother who benefit from the exercise of the
faculty provided for in Article 7 (3) of the said
Regulation, represented by own funds held in
branches located in third countries.
5-Should the Bank of Portugal exercise the faculty provided for in Article 9 (1).
of Regulation (EU) No 575/2013, of the European Parliament and of the
Council, of June 26, 2013, disseminates the following information:
a) The criteria applied to determine whether there are impediments
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significant, in law or in fact, current or anticipated, to a
quick transfer of own funds or the immediate refund of
liabilities;
b) The number of credit institutions-mother who benefit from the exercise
of the faculty provided for in Article 9 (1) of the said Regulation,
and the number of these credit institutions-mother with branches in countries
third parties;
c) On an aggregated basis for Portugal:
i) The total amount of the own funds of the credit institutions-mother
benefiting from the exercise of the faculty provided for in paragraph 1 of the article
9. of that Regulation, and that they are held in subsidiaries located
in third countries;
ii) The percentage of the total own funds of the institutions of
crédito-mother who benefit from the exercise of the faculty provided for in the n.
1 of Article 9 of the said Regulation represented by funds
own detainees in subsidiaries located in third countries;
iii) The percentage of the total fund of own funds required under the
Article 87 of the said Regulation of the Création Institutions-Mother
benefiting from the exercise of the faculty provided for in paragraph 1 of the article
9. of the said Regulation represented by own funds
held in subsidiaries located in third countries.
Article 103.
[...]
1-[...].
2-[...]:
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a) Idoneity of the proposed acquirer, having especially in
consideration of the provisions of Article 30-D if it is a person's
singular;
b) Idoneity, professional qualification, independence and availability
of the members of the board of directors of the credit institution, the
designate as a result of the projected acquisition, pursuant to the provisions of
in Articles 30 to 33-A;
c) [...];
d) [...];
e) [...].
3-The Bank of Portugal may request the proposed acquirer, in writing,
elements and supplementary information, as well as carry out the
enquiries that you consider necessary, until the 50. working day of the planned deadline
in the following number.
4-[...].
5-The request for elements or supplementary information effected by the
Bank of Portugal suspending the period of appreciation, between the date of the application and
the date of receiving the response of the proposed acquirer.
6-[...]:
a) 30 working days, in the event that the proposed acquirer has domicile or seat
in a third country or there is subject to regulation, as well as
in the event that the proposed acquirer is not subject to supervision in the
terms of the provisions of Directive No 2013 /36/UE, of Parliament
European and of the Council, of June 26, 2013, or of the Directives
n. ºs 2009 /65/CE, of the European Parliament and of the Council, of 13 of
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July 2009, 2009 /138/CE, of the European Parliament and of the
Council, of November 25, 2009, and 2004 /39/CE, of the
European Parliament and of the Council of April 21, 2004;
b) [...].
7-[...].
8-[...].
9-[...].
10-[...].
11-[...].
Article 103-The
[...]
1-[...]:
a) Credit institution, insurance company, reinsurance company,
investment company or managing entity of bodies of
collective investment in securities, in the acetation of the
Decree-Law No. 63-A/2013 of May 10, authorised in another State-
Member of the European Union;
b) [...];
c) [...].
2-[...].
3-[...].
4-[...].
5-[...].
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6-The Bank of Portugal consults on the database of Authority sanctions
European Banking for the purposes of the assessment of the proposed acquirer.
Article 116.
[...]
1-[...]:
a) Keep up with the activity of credit institutions, the companies
financial and the mixed financial companies;
b) Surveying for the observance of the standards that discipline the activity of the
credit institutions, financial companies and companies
mixed financial, specifically the assessment of compliance with the
requirements of this General Regime and Regulation (EU)
No. 575/2013, of the European Parliament and of the Council, of June 26
of 2013;
c) Issue specific determinations addressed to collective persons or
singular, specifically for them to adopt a particular
behavior, cease certain conduct, or abstain from the
repeat or in order to be sanctioned the detached irregularities;
d) [...]:
e) Issue recommendations;
f) Regulate the activity of the entities it oversees;
g) [ Previous point (e) ].
2-[ ... ].
Article 116-The
[...]
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1-Taking into consideration the technical criteria set out in Article 116-B, the
Bank of Portugal reviews the provisions, strategies, processes and mechanisms
applied by credit institutions to comply with the present
General Regime and Regulation (EU) No 575/2013 of the European Parliament
and of the Council, of June 26, 2013, and evaluates:
a) The risks to which credit institutions are or are likely to come to
be exposed;
b) The risks that a credit institution poses to the financial system,
taking into consideration the identification and quantification of risk
systemic under Article 23 of the Regulation (EU)
n 1093/2010, of the European Parliament and of the Council, of
November 24, 2010 or, if it is the case, the recommendations of the
European Systemic Risk Committee;
c) The risks revealed by effort tests, taking into consideration the
nature, level and complexity of the activities of the institutions of
credit.
2-On the basis of the analysis and evaluation referred to in the preceding paragraph, the Bank of
Portugal decides whether the provisions, strategies, processes and mechanisms
applied by credit institutions and own funds and liquidity that
detain guarantee a sound management and the coverage of their risks.
3-[...].
4-A The analysis and the assessment referred to in the preceding paragraph are updated by the
less annually for the credit institutions covered by the plan to
activities referred to in Article 116.-I.
5-A analysis and assessment by the Bank of Portugal include the
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exposure of credit institutions to the risk of interest rate resulting from
activities of the banking portfolio, measures being necessary in particular
in the case of institutions whose economic value suffers a reduction
corresponding to more than 20% of the respective own funds, in the
sequence of a sudden and unexpected change in interest rates of 200
basis points or amplitude provided for in guidelines of the Authority
European banking on the matter.
6-The Bank of Portugal immediately informs the European Banking Authority
of the results of the analysis and evaluation referred to in this article always
what such analysis and evaluation reveal that a credit institution can
present a systemic risk in the acetation of Article 23 of the Regulation
(EU) No 1093/2010, of the European Parliament and of the Council, of
November 24, 2010.
Article 116-B
[...]
1-In addition to credit, market and operational risks, the analysis and the
assessment carried out by the Bank of Portugal, according to the provisions of the
previous article, must include at least the following:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
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g) [...];
h) The geographical location of the exhibitions of the credit institutions;
i) The business model of credit institutions;
j) The assessment of systemic risk in accordance with the expected criteria
in the previous article.
2-[...].
3-[...].
4-[...].
5-For the purposes of the decision to be made in accordance with paragraph 2 of the preceding Article, the
Bank of Portugal weighs in if the value adjustments are effected
regarding the positions included in the trading portfolio, pursuant to the
applicable regulations on capital adequacy of own funds
market risks, allow the credit institution to sell or secure the
coverage of their positions in a short period without incurring losses
significant under normal market conditions.
6-A analysis and evaluation carried out by the Bank of Portugal cover the
exposure of credit institutions to the risk of excessive leveraging
reflected by the indicators of excessive leverage, including the ratio of
leverage determined in the terms of the applicable regulation.
7-The Bank of Portugal takes into consideration the business model of the
credit institutions when assessing the suitability of their ratios of
leverage and its provisions, strategies, processes and mechanisms
applied to manage the risk of excessive leverage.
8-A analysis and evaluation carried out by the Bank of Portugal cover the
government system arrangements of credit institutions, their culture and
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corporate values and the capacity of the members of the organ of
administration to perform their duties.
9-For the purposes of the preceding paragraph, the Bank of Portugal has access,
particularly to the orders of the day and to any supporting documents
relating to meetings of the governing body and the committees ' respective committees,
as well as the results of the internal or external evaluation of the performance
of the body of administration.
Article 116-C
[...]
1-The Bank of Portugal may require that credit institutions that do not
comply with the standards that discipline their activity, or relatively to the
which discloses information evidencing that it will not meet them on time
of one year, adopt with immediate character the necessary measures or actions
to resolve the situation.
2-[...]:
a) Require credit institutions to hold own funds
superior to the requirements established under the Title VII-A or the
Regulation (EU) No 575/2013, of the European Parliament and of the
Council, of June 26, 2013;
b) [...];
c) [...];
d) Restrict or limit the activities, operations or networks of balconies of the
credit institutions, or soliciting disinvestment in activities
that present excessive risks to the soundness;
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e) [...];
f) [...];
g) [...];
h) Limit or prohibit interest payments or dividends by a
credit institution to shareholders or holders of instruments of
additional own funds of level 1 case the ban does not constitute
a non-compliance event;
i) Impose additional reporting requirements or more
frequent, particularly on the position of capital and liquidity;
j) Impose specific liquidity requirements, notably restrictions on
lags of the maturity-maturity between assets and liabilities;
k) Require additional disclosures.
3-The Bank of Portugal should impose a specific fund requirement
own superior to the legally established minimum level to the institutions of
credit:
a) Who do not comply with the requirements set out in the terms of the article
393. of Regulation (EU) No 575/2013 of the European Parliament and
of the Council of June 26, 2013, of the f ) a j ) of paragraph 1 and of the
n Article 14 (2) and Article 115-J;
b) Whose risks are not covered by the requirements of own funds
established under Title VII-A or Regulation (EU) No.
575/2013, of the European Parliament and of the Council, of June 26 of
2013;
c) Whose application of other measures does not appear sufficient, on its own,
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to improve satisfactorily, in appropriate time, the provisions,
strategies, processes and mechanisms applied by the institutions of
credit;
d) Whose analysis and evaluation referred to in Article 116 (5)-B and the
n. paragraphs 6 and 7 of Article 116-K may reveal that the default of the
requirements for the application of the methods referred to in those
provisions is susceptible to driving the requirements of own funds
unsuitable;
e) For which the risks are likely to be
underestimated despite compliance with the applicable requirements
set out by the present General Regime and by the Regulation (EU)
No. 575/2013, of the European Parliament and of the Council, of June 26
of 2013;
f) To communicate to the Bank of Portugal under the terms of paragraph 5 of the
Article 377 of Regulation (EU) No 575/2013 of Parliament
European and Council, of June 26, 2013, which the results
of the stress tests referred to in that article exceed
significantly their own fund requirements for the
correlation trading portfolio.
4-[...]:
a) The quantitative and qualitative aspets of the self-assessment process
of the credit institutions provided for in Article 115-J;
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b) The devices, procedures and mechanisms set out in the points f )
a j ) of paragraph 1 and in Article 14 (2);
c) The result of the analysis and evaluation carried out in the terms of the articles
116.-A and 116.-K;
d) The assessment of systemic risk.
Article 116-G
[...]
1-Credit institutions must implement specific means,
independent and autonomous suitable for the receiving, processing and file of the
participations of serious irregularities related to its administration,
accounting organization and internal surveillance and serious evidence of
infractions to duties provided for in this General Regime or in the Regulation
(EU) No 575/2013, of the European Parliament and of the Council, of June 26
of 2013.
2-The means referred to in the preceding paragraph shall guarantee the confidentiality of the
participations received and the protection of the personal data of the whistleblower and
of the suspect in the practice of the infraction.
3-The persons who, by virtue of the functions they exercise in the institution of
credit, particularly in the areas of internal audit, risk management or
monitoring of compliance with legal and regulatory obligations
( compliance ), take notice of any serious wrongdoing
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related to the administration, accounting and surveillance organization
internal of the credit institution or hints of infraction to duties
provided for in this General Regime or in Regulation (EU) No 575/2013,
of the European Parliament and of the Council of June 26, 2013, which is
susceptible to putting it in a situation of financial imbalance, have a duty
of participating in the supervisory body, in the terms and with the safeguards
established in this article.
4-The holdings received in the terms of the previous figures are
analyzed, a reasoned report being prepared, which should contain the
adopted measures or the justification for the non-adoption of any measures.
5-The shareholdings taken under this article, as well as the
reports to which they give way, should be kept on paper or in another
long-lasting support that allows for the full and unchanged reproduction of the
information, by the time limit of five years, by giving them the provisions of the
article 120 para.
6-The holdings taken under the previous figures may not,
on its own, serve as a foundation for the establishment by the credit institution of
any disciplinary, civil or criminal procedure with respect to the author
of the participation, except if the same are deliberated and manifestly
unfounded.
7-[ Previous Article No 6 ].
8-The Bank of Portugal approves the necessary regulation to ensure the
implementation of the standards provided for in this article.
Article 117.
[...]
1-[...].
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116
2-[...].
3-[...].
4-The provisions of Articles 30 to 32, with the necessary adaptations, 42.-A,
43.-A and in Article 115 (1) and (3) shall apply to the managing companies of
social shareholdings subject to the supervision of the Bank of Portugal.
Article 118-The
[...]
1-It is vetted to credit institutions the granting of credit to entities
headquartered in legal ordinances offshore considered non-cooperatives
or whose last beneficiary is unknown.
2-Compete to the Bank of Portugal set out, by warning, the ordinances
legal offshore considered uncooperative for the purposes of the provisions of the
previous number.
3-Without prejudice to the provisions of paragraph 1, shall owe the institutions subject to
supervision of the Bank of Portugal, on the basis of its financial situation
consolidated, proceed to the registration of operations corresponding to services
of payment provided by all entities included in the perimeter of
prudential supervision that have as a beneficial natural person or
collective sediment in any legal order offshore , and communicate them
to the Bank of Portugal, pursuant to this set out in regulation.
4-[ Revoked ].
5-The provisions of paragraph 3 shall also apply to any other entities
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enabled to provide payment services on national territory.
Article 120.
[...]
1-Credit institutions present to the Bank of Portugal the information
necessary for the assessment of compliance with the provisions of this Regime
General and in Regulation (EU) No 575/2013, of the European Parliament and of the
Council, of June 26, 2013, in particular for verification:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) [...];
i) [...].
2-[...].
3-[...].
4-[...].
5-[...].
6-[...].
7-[...].
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118
8-[...].
9-Credit institutions record all their operations and processes,
in particular those subject to the provisions of this General Regime and the
Regulation (EU) No 575/2013, of the European Parliament and of the Council,
of June 26, 2013, in such a way that the Bank of Portugal can, in
at any time, check the complied observance.
Article 121.
[...]
1-The official reviewers for the service of a credit institution and the
external auditors who, by legal requirement, presage at an institution of
credit services audit services are required to communicate to the Bank of
Portugal, with the greatest brevity, the facts or decisions relating to that
institution of which they have knowledge in the performance of their duties,
when such facts or decisions are susceptible to:
a) [...];
b) [...];
c) [...].
2-A The obligation provided for in the preceding paragraph shall also apply
regarding the facts or decisions that the persons referred to in the same
number come to have knowledge in the context of identical functions, but
exerted in company that maintains with the credit institution where such
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functions are exerted a close relationship.
3-[...].
4-A communication of the facts or decisions referred to in paragraph 1 shall be made
simultaneously to the administration body of the credit institution, save
ponderous reason to the contrary.
Article 122.
Credit institutions authorized in other Member States of the European Union
1-Credit institutions authorized in other Member States of the
European Union and to exercise activity in Portugal, provided that they are subject to
supervision of the authorities of the countries of origin, are not subject to the
prudential supervision of the Bank of Portugal.
2-Compete, however, to the Bank of Portugal, in collaboration with the
competent authorities of the countries of origin, supervising the liquidity of the
branches of the credit institutions provided for in the preceding paragraph.
3-[...].
4-[...].
Article 122-The
[...]
1-In the exercise of its supervisory functions of credit institutions that
act, in particular through a branch office, in more than one State-
Member of the European Union other than that of its registered office, the Bank of
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Portugal should collaborate with the competent supervisory authorities,
may exchange information regarding the structure of administration and the
shareholder structure of credit institutions, as well as all the
susceptible information to facilitate supervision, particularly in respect of
of liquidity, creditworthiness, guarantee of deposits, limits to major risks,
other factors that may influence the systemic risk that the institution of
credit represents, administrative and accounting organization, and control
internal, particularly for the identification of a significant branch.
2-[...].
3-The Bank of Portugal provides immediately to the competent authorities of the
State-hosting Member any information and conclusions
related to the supervision of the liquidity of branches, as far as
this information and conclusions are relevant to the protection of the
depositors and investors in the host Member State.
4-The Bank of Portugal shall immediately inform the competent authorities of
all host Member States in case of occurrence or of
reasonable probability of occurrence of liquidity problems, providing
data on the planning and implementation of a recovery plan, well
how about any prudential supervisory measures taken in this
context.
5-The Bank of Portugal may ask the competent authorities of the State-
Member of origin that communicate and explain the way they were
considered the information and conclusions provided.
6-Whenever, following the communication of information and conclusions, the
Bank of Portugal understand that no appropriate measures have been taken
by the competent authorities of the Member State of origin, may, after
to inform those authorities and the European Banking Authority, take the
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appropriate measures to prevent further infractions in order to protect the
interests of depositors, investors and other persons to whom they are
provided services or to protect the stability of the financial system.
7-The Bank of Portugal communicates and substantiates, upon request, the
competent authorities of the host Member State the way in which
have been considered the information and conclusions provided by these
last.
8-Case disagreements to the measures to be taken by the competent authorities of the
Host Member State, the Bank of Portugal may remit the
subject to the European Banking Authority and apply for your assistance,
pursuant to Article 19 of the Regulation (EU) No 1093/2010, of the
European Parliament and of the Council of November 24, 2010.
Article 123.
Duties of authorised institutions in other Member States of the European Union]
1-For the purposes of Article 122, the institutions mentioned therein shall
present to the Bank of Portugal the elements of information that this
consider necessary.
2-[...].
Article 124.
Inspection of branches of authorized credit institutions
1-[...].
2-[...].
3-The Bank of Portugal may proceed, on a case-by-case basis, to verifications and
inspections of the activities carried out by the branches of the credit institutions
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on the national territory and require information from a branch office on its
activities, for the purpose of supervision, whenever it considers it relevant by
reasons for stability of the Portuguese financial system.
4-Prior to the realization of such checks and inspections, the Bank of Portugal
consultation with the competent authorities of the Member State of origin.
5-Following these checks and inspections, the Bank of Portugal communicates to the
competent authorities of the State-Member of origin the information
obtained and the findings that are relevant for the assessment of the risks of the
credit institution or for the stability of the Portuguese financial system.
6-The Bank of Portugal has duly taken into account the information and
conclusions communicated by the competent authorities of the Member State
of reception in the determination of its examination programme in respect of
supervision, including the stability of the financial system of the State-
Member of host.
7-Branch checks and inspections are carried out in accordance with the
Portuguese law.
Article 130.
Competence
1-[...].
2-[ Revoked ].
Article 131.
[...]
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1-Without prejudice to the supervision on an individual basis, the institutions with a registered office
Portugal who have as subsidiaries one or more credit institutions or
financial institutions, or that in them hold a stake stay
subject to supervision on the basis of their consolidated financial situation.
2-Without prejudice to the supervision on an individual basis, the credit institutions
with registered office in Portugal, whose parent company is a financial company or
a mixed financial company with a registered office in a Member State of the Union
European, they become subject to supervision on the basis of financial situation
consolidated of the parent company.
3-[...]:
a) When a credit institution exerts significant influence
about another credit institution or financial institution, yet
do not detain in it any participation;
b) When two or more credit institutions or institutions
financial are subject to single direction, albeit not stipulated
statuary or contractually;
c) When two or more credit institutions or institutions
financial have organs of administration or surveillance
compounds majoritarily by the same people.
4-[...].
5-The Bank of Portugal fixed, by regulation, the terms in which
credit institutions, financial institutions or service companies
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auxiliaries can be excluded from supervision on consolidated basis.
6-The Bank of Portugal communicates to the European Banking Authority, à
European Commission and the competent authorities of the Member States
cause the list of financial companies and financial companies
mists subject to their supervision on consolidated basis.
Article 132.
[...]
1-The Bank of Portugal exercises supervision on a consolidated basis when a
financial company or a mixed financial company has headquarters in
Portugal and be the parent company of credit institutions with registered office
Portugal and other Member States of the European Union.
2-Portugal-headquartered credit institutions that have as
parent company a financial company or a financial company
mixed with registered office in another Member State of the European Union, where also
if you find hosted by another credit institution your branch, are subject to the
supervision on consolidated basis exercised by the supervisory authority
of that Member State
3-The credit institutions with registered office in Portugal whose financial company
or mixed financial company is registered in a Member State of the Union
European, integrated into a group in which the remaining credit institutions
have registered offices in different Member States and have as companies-
mother a financial company or a mixed financial company as well
with headquarters in different Member States, become subject to supervision in
consolidated basis exercised by the supervisory authority of the institution of
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credit whose total balance sheet presents the highest value.
4-The credit institutions with registered office in Portugal, whose parent company is
a financial company or a mixed financial company with headquarters
in another Member State of the European Union, and which has other institutions
of credit affiliates in Member States other than that of their registered office, stay
subject to the supervision on consolidated basis exercised by the authority of
supervision that authorized the credit institution whose total balance sheet is the
higher.
5-[ Revoked ].
Article 132-The
Parent companies based in third countries
1-When a credit institution, whose parent company is an institution
of credit, a mixed financial company or a financial company
headquartered in third country, is not subject to supervision on a consolidated basis
on terms equivalent to those in this section, it should be checked whether it is
subject, on the part of a supervisory authority of the third country, to a
equivalent supervision.
2-[...].
3-[...].
4-[...].
5-[...].
6-In alternative to the provisions of the preceding paragraph, the Bank of Portugal,
when it is the responsible authority and after consultation with the authorities
referred to in paragraph 3, may adopt other appropriate methods that allow
achieve the objectives of the supervision on a consolidated basis, namely
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requiring the constitution of a financial company or of a company
mixed financial headquartered in the European Union and applying it to the provisions
on supervision on a consolidated basis.
7-[...].
Article 132-C
[...]
1-[...].
2-Before making the decision referred to in the preceding paragraph, the authorities
competent must give to the institution of credit-mother in the European Union, à
financial company-parent company in the European Union, to the financial company
mixer-mother in the European Union or to the credit institution whose total
balance presents the highest value the opportunity to address
relatively to that decision.
3-The Bank of Portugal must notify the European Commission and the Authority
European Bank of the Agreements concluded under the provisions of paragraph 1,
when he is appointed as the competent authority.
Article 134.
[...]
1-[...].
2-[...].
3-When the parent company of one or several credit institutions is a
financial company, a mixed company or a financial company
mixed, these and the respective branches, including the subsidiaries that are not included
within the framework of the supervision on consolidated basis, they are obliged to submit to the
Bank of Portugal all the useful information and clarifications for the
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supervision.
4-[...].
5-The Bank of Portugal may, whenever it is necessary for the supervision in
consolidated basis of the credit institutions, proceed or order to proceed
checks and expert examinations on financial companies, companies
mists or in the mixed financial companies and in the respective branches, well
as in ancillary service societies.
6-The subsidiaries of any credit institution, financial company or
mixed financial company not included in the scope of supervision in a
consolidated basis are required to present to the Bank of Portugal all the
useful information for the exercise of supervision.
Article 135.
[...]
1-[...].
2-[...]:
a) Competent authorities of the Member States of the European Union
in which they have registered financial companies, financial companies
mists or companies that are parent companies of institutions of
credit with registered office in Portugal;
b) Competent authorities of the Member States of the European Union
where they have registered subsidiaries of the aforementioned financial companies
or mixed financial companies.
3-[...].
Article 135-The
[...]
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128
1-Compete to the Bank of Portugal, in the capacity of competent authority
responsible for the exercise of the supervision on consolidated basis of the
mother credit institutions in the European Union and credit institutions
controlled by parent financial companies in the European Union or by
joint financial companies mother in the European Union:
a) [...];
b) The planning and coordination of supervisory activities in
normal conditions of activity, including the one established in the articles
116.-A to 116.-C, in self-assessment of the institutions of
credit and public disclosure of information, in collaboration with the
competent authorities involved;
c) The planning and coordination of supervisory activities in
collaboration with the relevant authorities involved and, if
necessary, with the central banks, in the preparation for situations of
emergency and during such situations, notably an evolution
negative in the situation of credit institutions or markets
financial.
2-The Bank of Portugal can communicate to the European Banking Authority the
cases in which the competent authorities referred to in the previous article do not
cooperate with the Bank of Portugal for the exercise of duties
mentioned in the same number and apply for your assistance, pursuant to the
provisions of Article 19 of Regulation (EU) No 1093/2010 of the
European Parliament and of the Council of November 24, 2010, without
prejudice to assistance on the initiative of the Banking Authority itself
European.
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129
3-[...].
Article 135-B
[...]
1-The Bank of Portugal, as the authority responsible for the exercise of the
supervision on consolidated basis, must establish colleges of authorities of
supervision to facilitate the exercise of the functions referred to in Articles 135-A,
135.-C and 137.-A and, subject to the requirements set out in Article 82, shall, if it is
case, ensure proper coordination and cooperation with the authorities
relevant competent from third countries.
2-[...]:
a) [...];
b) [...];
c) Determination of the plan of activities in supervisory matters
based on the risk assessment of the group aimed at analyzing the
provisions, strategies, processes and mechanisms applied by the
credit institutions to comply with the provisions of the
directives of the European Union applicable, as well as to assess the risks to
that credit institutions are or may come to be exposed;
d) [...];
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e) Application in a consistent manner, in all entities of a group
bank, of the envisaged prudential requirements, without prejudice to the
legally-exercised options and colleges;
f) [...].
3-[...].
4-[...].
5-[...]:
a) The competent authorities responsible for the supervision of the subsidiaries of
an institution-mother in the European Union, of a company
financial-parent in the European Union or a financial company
mixed-mother in the European Union;
b) [...];
c) [...];
d) [...];
e) [...].
6-[...].
7-In its decisions, the Bank of Portugal should take into account the relevance, to
the authorities referred to in the preceding paragraph, of the supervisory activity to
plan or coordinate, in particular the potential impact on the stability of the
financial system of the Member States concerned to which the
n Article 93 (3) and the obligations referred to in Article 40.
8-The Bank of Portugal shall, without prejudice to the duty of secrecy, inform the
European Banking Authority of the activities of colleges of authorities of
supervision, including in emergency situations, and communicate to the said
authority all information of particular relevance to convergence
CHAIR OF THE COUNCIL OF MINISTERS
131
of the supervision.
9-In the event of a disagreement between the competent authorities in relation to the
operation of the colleges of supervisory authorities, the Bank of
Portugal may refer the matter to the European Banking Authority and
apply for your assistance pursuant to Article 19 of the Regulation (EU)
No. 1093/2010, of the European Parliament and of the Council, of November 24
of 2010.
Article 135-C
[...]
1-A authority responsible for supervision on a consolidated basis and the
competent authorities responsible for the supervision of the subsidiaries, in a
Member State of the European Union, of a credit institution in the
European Union, of a financial company-parent company in the European Union or
of a mixed financial company-mother in the European Union must
undertake the necessary efforts to arrive at a joint decision
relatively:
a) To the process of self-assessment of the suitability of internal capital and the
process of review and evaluation, to determine the suitability of the level
consolidated fund of own funds held by the group in respect of its
financial situation and risk profile;
b) At the level of own funds necessary for the implementation of the measures
corrective measures provided for in Article 116 (3)-C to each of the
entities of the banking group, on a consolidated basis;
c) To measures aimed at analysing and resolving any issues and
significant findings related to the supervision of liquidity,
particularly relating to the suitability of the organisation and the processing
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of the risks of liquidity, and related to the need to establish
specific liquidity requirements for the institution.
2-[...]:
a) For the purposes of the points a ) and b ) from the previous number, be taken in the
deadline of four months after delivery by the responsible authority
by supervision on a consolidated basis of a report with the
risk assessment of the group;
b) For the purposes of the c ) from the previous number, be taken on the deadline of
one month from the presentation by the authority responsible for the
supervision on consolidated basis of a report with the evaluation of the
group liquidity risk profile.
c) [ Previous point (b) ];
d) [ Previous paragraph (c) ].
3-[...].
4-In the absence of a joint decision of the competent authorities in the deadlines
provided for in paragraph 2, the decision shall be taken on a consolidated basis by the
authority responsible for supervision on a consolidated basis after having
duly examined the risk assessments of the subsidiaries effected by the
relevant competent authorities.
5-A competence to make the decisions on an individual basis or
subconsolidated is from the competent authorities responsible for the supervision
of the subsidiaries of credit institutions-mother of the European Union, of the companies
financial-mother of the European Union or of the mixed financial companies-
mother of the European Union, after properly scrutinised views and
reservations expressed by the authority responsible for supervision on a basis
consolidated.
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6-If, before the end of the time limits provided for in paragraph 2 or the adoption of a
joint decision, any of the concerned competent authorities have
communicated the matter to the European Banking Authority, in the terms and for
the effects of Art. 19 of Regulation (EU) No 1093/2010, of the
European Parliament and of the Council of November 24, 2010, the
authority responsible for supervision on a consolidated basis shall
wait for the decision adopted by the European Banking Authority and take the
your decision in accordance with the decision adopted by this authority.
7-The decisions referred to in paragraphs 4 and 5 shall appear in a document that includes
respect for fundamentals and take into account risk assessments, opinions
and reserves of the other competent authorities expressed during the time limits
provided for in paragraph 2.
8-[...].
9-[...].
10-[...].
11-The decisions referred to in paragraphs 1, 4 and 5 are updated annually
or, in excecional circumstances, where the competent authority
responsible for the supervision of the subsidiaries of an institution-mother of the Union
European, of a financial company-parent company of the European Union or of
a joint financial company-mother of the European Union present by
written a duly reasoned request to the responsible authority
by supervision on a consolidated basis in the sense of updating the decision
on the implementation of the corrective measures provided for in Article 3 (3)
116.-C or the decision on specific liquidity requirements in the terms
of article 116.-.
12-[...].
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134
Article 136.
[...]
When a credit institution, a financial company, a
mixed financial company or a mixed company would control one or
more subsidiaries subject to the supervision of the Insurance Institute of Portugal, this
provides the Bank of Portugal with the information that is necessary to the
supervision on consolidated basis.
Article 137.
[...]
1-For the purpose of the supervision, on a consolidated basis, of the financial situation of
credit institutions with registered offices in other Member States of the Union
European, the Bank of Portugal should pay its respects to the authorities of
supervision the information you possess or you can obtain
concerning the institutions that supervise and be participated by
those institutions.
2-[...].
3-[...].
Article 137-B
[...]
1-[...].
2-[...].
3-The Bank of Portugal, as the responsible competent authority
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by the authorization of a subsidiary of a parent company that is an institution
of credit, may, by bilateral agreement and inform the Banking Authority
European, delegate its responsibility for supervision to the authorities
competent who have authorised and supervised the parent company.
Article 137-C
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-The Bank of Portugal, as the authority responsible for the
supervision on consolidated basis of the credit institutions-mother in the Union
European and the credit institutions controlled by companies
financial-mother or by joint financial companies mother based in the
European Union, provides to the competent authorities of other States-
Members who exercise supervision of subsidiaries of these parent companies all
relevant information.
6-[...].
Article 137-D
[...]
1-[...].
2-[...]:
a) Identification of the legal, organisational and government structure of the
group, including all regulated entities and not
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136
regulated and significant branches of the group, as well with the
companies-mother, and the competent authorities of the entities
regulated in the group;
b) [...];
c) [...];
d) [...].
Article 145-B
[...]
1-In the application of resolution measures, taking into account the purposes of the
resolution measures set out in the previous article, seeks to ensure
that:
a) The shareholders of the credit institution assume as a matter of priority
damages from the institution concerned;
b) The creditors of the credit institution assume next, and in
equitative conditions, the remaining damage of the institution concerned,
according to the priority hierarchy of the various classes of
creditors;
c) No creditor of the credit institution may take an injury
greater than the one who would assume should that institution have
entered into liquidation.
2-[...].
3-Should you check in, at the close of the settlement of the credit institution
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object of the resolution measure, which the creditors of that institution whose
credits have not been transferred to another credit institution or
for a transitional bank, took a higher loss than the
estimated amount, pursuant to the assessment provided for in paragraph 6 of the article
145.-F and in Article 145 (4)-H, which would take over if the institution
had entered into the liquidation process at a time immediately
previous to that of the application of the resolution measure, have the creditors right to
receive this difference from the Resolution Fund.
Article 145-F
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-[...].
6-For the purposes of the provisions of Article 145 (3)-B, the assessment to which
refers to the previous number is compulsorily complemented by a
estimation of the level of recovery of the credits of each class of creditors,
in accordance with the order of priority set out in the law, in a scenario of
settlement of the credit institution at the time immediately preceding
to that of the implementation of the resolution measure.
7-The Bank of Portugal determines the nature and amount of support
financial to be provided by the Resolution Fund, should it be necessary,
including in particular the provision of guarantees and the granting of
loans to the alienating credit institution or to the acquiring institution,
for the purposes of preserving the value of the assets and liabilities and facilitating the
CHAIR OF THE COUNCIL OF MINISTERS
138
concretization of the divestance provided for in paragraph 1.
8-[ Previous Article No 7 ].
9-When the value of the disposable liabilities is higher than the value of the assets, the
amounts of financial support provided for the purpose of compensating
this difference in accordance with the provisions of paragraphs 7 and 8 constitute claims
of the Resolution Fund, the Deposit Guarantee Fund or the
Mutual Agricultural Credit Guarantee Fund on the institution of
disposant credit.
10-[ Previous Article No 9 ].
11-[ Previous Article No 10 ].
12-[ Previous Article No 11 ].
13-[ Previous Article No 12 ].
14-[ Previous Article No 13 ].
15-[ Previous Article No 14 ].
16-[ Previous Article No 15 ].
17-The payment provided for in the preceding paragraph may be effected through the
transfer to the procuring institution of new assets from the institution of
divestant credit or monies from the Resolution Fund, of the
Deposit Guarantee Fund or Credit Guarantee Fund
Mutual Agricultural, pursuant to the provisions of paragraphs 7 and 8.
18-[ Previous Article No 17 ].
19-In the selection of the assets, liabilities, off-balance-sheet elements and assets under
management to be disposed of in the terms of this Article, applies, with due
adaptations, the provisions of Article 145 (2).-H.
Article 145-H
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[...]
1-[...].
2-[...]:
a) The shareholders ' respective respects, whose participation at the time of
transfer is equal to or greater than 2% of the social capital, the persons
or entities that in the two years prior to the transfer have had
participation equal to or greater than 2% of the social capital, the members of the
organs of administration or surveillance, the official reviewers of
accounts or societies of official reviewers of accounts or the persons
with similar status in other companies that find themselves in
domain or group relationship with the institution;
b) [...];
c) [...];
d) [...].
3-[...].
4-The assets, liabilities, off-balance-sheet elements and assets under management
selected in accordance with paragraph 1 shall be the subject of an evaluation,
reported at the time of the transfer, carried out by an entity
independent designated by the Bank of Portugal, in time to be fixed by this,
the expensing of the credit institution, and the same assessment, for
effects of the provisions of Article 145 (3) of the Article-B, be compulsorily
CHAIR OF THE COUNCIL OF MINISTERS
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complemented by an estimate of the level of recovery of the credits
of each class of creditors, in accordance with the order of priority
established in law, in a scenario of the settlement of the credit institution
originating at the time immediately preceding that of the application of the measure
of resolution.
5-[...].
6-The Bank of Portugal determines the nature and amount of support
financial to be granted by the Resolution Fund, if it is necessary, to
the creation and development of the activity of the transitional bank,
notably through the granting of loans to the bank of
transition for any purpose, from the provision of the funds
considered necessary for the realization of increased operations of the
capital of the transitional bank or the provision of guarantees.
7-[...].
8-[...].
9-[...].
10-[...].
11-[...].
12-[...].
13-[...].
Article 145-I
[...]
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141
1-[...].
2-[...].
3-[...]:
a) To the Resolution Fund, of all the amounts made available to us
terms of Article 145 (6) of the Article-H;
b) To the Deposit Guarantee Fund or to the Guarantee Fund of the
Mutual Agricultural Credit, of all amounts made available to us
terms of article 145 (7)-H.
4-[...].
5-[...].
6-[...].
Article 152.
[...]
1-The measures provided for in this Title shall apply, with due
adaptations, to parent companies that have as a subsidiary, in the acetion of the ( the )
of Article 2 (1)-A, one or more credit institutions or companies
of investment that pursues the activities provided for in the ( b ) and c ) of the n.
1 of Article 199-The subject of supervision on a consolidated basis, provided that
check the legal assumptions of your application in relation to any
one of these branches.
2-[...].
3-[...].
Article 153-M
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142
[...]
1-[...].
2-The resources made available under the provisions of the preceding paragraph
that are not used for the realization of the social capital of the bank of
transition gives the Fund a right of credit on the institution
participant who is the object of the resolution measure, on the bank of
transition or on the procuring institution, as per cases, in the amount
corresponding to these resources and benefiting from the receivables
provided for in Article 166 (3) of the Article 166.
3-[...].
Article 155.
[...]
1-[...].
2-The Fund may, still, intervene in the context of the implementation of measures of
resolution, pursuant to Article 145 (8) F and 7 (7) of the article
145.-H and in accordance with the scheme provided for in Article 167.
3-[...].
4-[...].
5-[...].
6-[...].
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143
Article 167.
[...]
1-[...]:
a) [...];
b) The remnant to the limit set out in Article 166 (1), at the deadline
maximum of 20 working days.
2-[...].
3-[...].
4-[...].
5-[...].
6-[...].
7-[...].
8-[...].
9-[...].
10-[...].
11-[...].
Article 184.
Branches of financial companies affiliates of credit institutions in
Member States of the European Union
1-The provisions of Article 36, in Article 37 (1) and Articles 38 to 40.
applies to the establishment, in Member States of the European Union, of
branches of financial companies based in Portugal, when these
financial companies, in turn, are branches of one or several
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credit institutions that are subject to Portuguese law, enjoy
legal regime that allows them the exercise of one or more activities
listed in sections 2 a to 12 and 15 of the list in Annex I of the Directive
n. 2013 /36/UE, of the European Parliament and of the Council of June 26
of 2013, and cumulatively fill in the following conditions:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...].
2-Of the communication referred to in Article 37 (1) shall appear in the amount, the
composition and the requirements of the own funds of the financial society.
3-[...].
Article 188.
Branches of subsidiaries of credit institutions of countries of the European Union
1-Register by the provisions of articles 44 and 46 to 56 the establishment, in
Portugal, from branches of financial institutions subject to the law of others
Member States of the European Union when these institutions have the
nature of credit institution branch or joint subsidiary of several
credit institutions, enjoy a scheme that allows them to exercise one or
more of the activities listed in sections 2 a to 12 and 15 of the list in Annex I
of Directive No 2013 /36/UE, of the European Parliament and of the Council, of 26
of June 2103, and cumulatively fulfil the following conditions:
a) [...];
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b) [...];
c) [...];
d) [...];
e) [...];
f) [...].
2-[...].
3-[...].
4-[...].
Article 189.
[...]
1-[...].
2-The provisions of Article 29-A shall apply to the establishment of the branches
referred to in the preceding paragraph, when the same if they were proposing to exercise in
Portugal some intermediation activity of financial instruments.
Article 196.
Prudential supervision
1-Unless the provisions of special law, shall be applicable to financial companies o
provisions of Title VII, with the following amendments:
a) Articles 116-D and 116 are not applicable.
b) The financial companies provided for in subparagraphs vii) a x) of the paragraph b )
of Art. 6 (1) are not subject to the provisions of Articles 102 to
111., and the purchasers of equities equal to or greater than
10% of the social capital or the voting rights of financial society
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not covered by Title X-A report that fact to the Bank of
Portugal, in the terms provided for in Article 104; in this situation, the
Bank of Portugal may require the provision of the information to which
refer to Article 102 (5) and Article 103 (3) and use of the
powers provided for in Article 106.
2-When a financial institution with a head office abroad, who pay
services or possesses office of representation in Portugal, exercise in the
Country intermediation activity of financial instruments, the supervision
of this activity also competes with the Stock Market Commission
Securities.
Article 199-The
[...]
[...]:
1. [...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) The firm outlet and the placing, with or without warranty, of
financial instruments referred to in paragraph 3;
g) [...].
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2. [...];
3. [...];
4. [ Revoked ];
5. [...];
6. "Management Society of Furniture Investment Funds", the
society whose usual activity consisted in the management of organisms of
collective investment authorized under the legal regime of the
collective investment bodies, defined in legislation
specific.
Article 199-C
[...]
[...]:
a) [...];
b) [...];
c) The provisions of Article 16 (3) shall not apply.
d) [...];
e) [ Repealed ];
f) [...];
g) By decision of the European Commission they may be limited to
authorisations for the constitution or acquisition of shareholdings
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skilled in people-dominated investment companies
collectives or natural persons from third countries, or suspended the
appreciations of the respects requests for permission, albeit already
presented.
Article 199-D
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) In Articles 39 and 43, the reference to the listed transactions
of Annex I to Directive No 2013 /36/UE of the European Parliament and
of the Council, of June 26, 2013, is replaced by the reference
to services and investment activities and ancillary services
constants of sections A and B of Annex I to Directive No 2004 /39/CE,
of the European Parliament and of the Council of April 21, 2004, being
that ancillary services can only be provided jointly with
a service and or investment activity;
e) [...];
f) [...];
g) [...];
h) [...].
2-[...].
3-[...].
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4-[...].
5-[...].
6-[...].
Article 199-And
Activity, in Portugal, of investment firms based in others
Member States of the European Union
1-[...]:
a) [...];
b) [...];
c) [...];
d) In Articles 52 and 60, the reference to the listed transactions
of Annex I to Directive No 2013 /36/UE of the European Parliament and
of the Council, of June 26, 2013, is replaced by the reference
to services and investment activities and ancillary services
constants of sections A and B of Annex I to Directive No 2004 /39/CE,
of the European Parliament and of the Council of April 21, 2004, being
that ancillary services can only be provided jointly with
a service and or investment activity;
e) [...];
f) [...];
g) [...];
h) [...];
i) The provisions of Article 56-It shall apply only to companies of
investment that is found to be authorized to provide the services of
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trading investment on its own and allotment with
firm outlet of one or more financial instruments, in the acea,
respects, from the points c ) and f ) of point 1 of Article 199.
2-[...].
3-For the purposes of this article, you understand yourself as a supervisory authority
of the Member State of origin to that which, in the Member State of the Union
European concerned, has been designated as a point of contact in the
terms of Article 56 of Directive No 2004 /39/CE of the European Parliament
and of the Council, of April 21, 2004.
Article 199-I
[...]
1-The provisions of articles 35-A, 42.-A, 43.-A and 102 to 111 is also
applicable to investment firms, fund managing companies of
investment furnishings and taking of shareholdings in these same
companies.
2-[...].
3-[...].
4-[...].
5-[...].
6-[...].
Article 199-L
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[...]
1-The holding companies of furniture investment funds apply the
provisions of this Title with the exception of point 5 of Article 199-A and
of Articles 199-C to 199.-H, understanding the scope of the competences of the
n Article 122 (2), to which the preceding Article shall be provided for in paragraph 122 and ) from the
n. 4.
2-[...]:
a) Article 16 (3) shall not apply.
b) [...];
c) By decision of the European Commission they may be limited to
authorisations for the constitution or acquisition of shareholdings
skilled in people-dominated investment companies
collectives or natural persons from third countries, or suspended the
appreciations of the respects requests for permission, albeit already
presented;
d) [ Repealed ];
e) [...].
3-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
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g) In Articles 39 and 43, the reference to the listed transactions
of Annex I to Directive No 2013 /36/UE of the European Parliament and
of the Council of June 26, 2013, is replaced by the reference to
activity and services listed in paragraphs 2 and 3 of Article 6 of the
Directive No 2009 /65/CE, of the European Parliament and of the Council, of
July 13, 2009;
h) [...];
i) [...].
4-[...]:
a) [...];
b) [...];
c) [...];
d) In Articles 52 and 60, the reference to the listed transactions
of Annex I to Directive No 2013 /36/UE of the European Parliament and
of the Council of June 26, 2013, is replaced by the reference to
activity and services listed in paragraphs 2 and 3 of Article 6 of the
Directive No 2009 /65/CE, of the European Parliament and of the Council, of
July 13, 2009;
e) [...];
f) [...];
g) [...].
Article 201.
[...]
1-[...]:
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a) [...];
b) Facts practiced in foreign territory of which they are responsible
credit institutions or financial companies with registered office in
Portugal and which there acts by means of branches or in provision
of services, as well as individuals who, in relation to such entities, if
find in some of the situations provided for in Article 203 (1),
or in them they hold social shareholdings;
c) [...].
Article 202.
Responsibility for the counterordinations
1-By the practice of the counterordinations provided for in this General Regime
may be held liable, jointly or not, natural persons and
collective people, albeit irregularly constituted, as well as
associations without legal personality.
2-Is punishable as an author of the counterordinations provided for in this Regime
General all the one who, by action or omission, causally contribute to the
your verification.
Article 203.
[...]
1-The collective persons and the equated entities referred to in the previous article
are responsible for the counterordinations committed by the holders of the
respects positions of administration, management, direction or managerial, in the exercise
of its functions, as well as by the counterordinations committed by
mandators, representatives or workers of the collective ente in acts
practiced in the name and in the interest of this.
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2-[...].
3-A The unvalidity or legal ineffectiveness of the acts in which the relationship is founded
between the individual agent and the collective ente do not prevent liability
of this.
Article 204.
Liability of natural persons
1-A The responsibility of the collective persons and equiparted entities does not exclude
the individual responsibility of the agents ' respective agents.
2-Do not preclude the individual responsibility of the agents representing
listen to the circumstance that the legal type of the infraction requires certain
personal elements and these only if they occur in the collective person, in the entity
equiped or in one of the actors involved, nor the circumstance of, being
required that the agent practise the fact in his or her interest, having the agent acted
in the interest of the represented.
3-A liability of the holders of the management positions or direction of the
collective people and equipared entities can be especially attenuated
when, cumulatively, do not be directly responsible for the pelouro
or area where the practice of the infraction has occurred and its responsibility if
funneling solely on the fact that, knowing or owing to the practice
of the infraction, they did not immediately adopt the appropriate measures for
me to put a term.
Article 205.
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[...]
1-A attempt and neglect are always punishable.
2-In the event of negligent infraction the maximum limit of the fine imposed for the
infraction is reduced to half.
3-In the event of a bid the applicable fine is the intended for the illicit consummate,
especially attenuated.
4-[ Revoked ].
Article 206.
[...]
1-A The determination of the measure of the fine and the ancillary sanctions is done in
function of the concrete ilicitude of the fact, the fault of the agent and the requirements of
prevention, while also taking into account the individual or collective nature of the
agent.
2-In the determination of the concrete ilicitude of the fact, of the fault of the agent and of the
requirements for prevention, meet, among others, the following circumstances:
a) [...];
b) [...];
c) [ Repealed ];
d) [ Repealed ];
e) Degree of participation of the accused in the infringement of the infraction;
f) Intensity of the dolo or negligence;
g) Existence of a benefit, or intention to obtain it, for you or for
listen;
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h) Existence of damage caused to the third party by the infraction and its
importance when this is determinable;
i) Duration of the infraction;
j) If the counterordinance consists of the omission of the practice of an act
due, the time elapsed from the date on which the act was due to have been
practiced.
3-As for natural persons, in the determination of the concrete ilicitude of the
fact, of the fault of the agent and the requirements for prevention, still, to the
following circumstances:
a) Level of responsibilities, scope of functions and sphere of action in the
collective person concerned;
b) [ Repealed ];
c) [...].
4-In the determination of the applicable sanction has also been taken into account:
a) [...];
b) [...];
c) The existence of concealment acts aimed at hindering discovery
of the infraction;
d) The existence of acts of the agent intended for, by his or her initiative, to repair
the damage or obviate to the dangers caused by the infraction;
e) The level of collaboration of the accused.
5-[ Revoked ].
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6-[...].
Article 208.
[...]
1-Whenever a person must respond simultaneously to the title of crime and
the title of counterordinance by the practice of the same facts, the
processing of the counterordinations so that it is competent the Bank of
Portugal and the respectful decision always fit this authority.
2-Whenever a person should respond only to the title of crime, yet
the facts are also punishable by the title of counterordinance, may the judge
criminal offence to apply the ancillary sanctions provided for the counterordinance in
cause.
Article 209.
[...]
1-The procedure for the counterordinations provided for in this scheme
prescreve within five years.
2-In cases where there has been concealment of the facts that are the object of the
process of counterordinance, the limitation period only runs from the
knowledge, on the part of the Bank of Portugal, of those facts.
3-The limitation period of the sanctions is five years from the day on which
become definitive or to transitate on trial the decision that determined its
application.
4-Without prejudice to other causes of suspension or interruption of the
prescription, the prescription of the procedure by counterordinate suspending itself
from the notification of the dispatch that proceeds to the preliminary examination of the
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resource of the decision applying sanction until the notification of the final decision of the
feature.
5-When infractions are punishable with fine up to € 1500 000.00,
treating themselves from collective persons, or with fine up to € 500 000.00,
dealing with natural persons, the suspension provided for in the preceding paragraph
cannot exceed 30 months.
6-When infractions are punishable with a fine of more than € 1500 to 000.00,
treating themselves from collective persons, or with fine exceeding € 500 to 000.00,
dealing with natural persons, the suspension provided for in paragraph 4 shall not
surpass the 5 years.
7-The time limit referred to in paragraphs 5 and 6 is high for double if there has been
resource for the Constitutional Court.
Article 210.
[...]
[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
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h) [...];
i) [...];
j) [...];
l) The violation of the standards on record of transactions set out in paragraph 3
of Article 118;
m) The violations of the imperative precepts of the present regime and of the
specific legislation, including the legislation of the European Union, which
governs the activity of credit institutions and societies
financial, not provided for in the previous paragraphs and in the following article,
as well as of the regulations issued in compliance or for
implementation of the said precepts.
Article 211.
[...]
1-Are punishable with fine of € 10000 a € 5000000 or of € 4000 a
€ 5000000, depending on whether the collective is applied or the natural person, the
infractions referred to below:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
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g) [...];
h) The failure to observe relations and prudential limits set out in paragraph 2
of Article 96, without prejudice to paragraph 3 of the same article, as well as
of Articles 97, 101, 109, 112 and 113, or of others
determined in general normal by the member of the Government
responsible for the area of finance or the Bank of Portugal in the
terms of Article 99, when it results in or may result in serious
injury to the financial balance of the entity concerned;
i) [...];
j) [...];
l) [...];
m) [...];
n) [...];
o) [...];
p) [...];
q) The omission of communication due to the Bank of Portugal, on the terms
of Article 32 (1), as well as the omission of the measures to be
refer to paragraphs 3 and 6 of Article 30-C and Article 32 (5);
r) [...];
s) [...];
t) The violation of the standard on the provision of constant credit of paragraph 1
of Article 118;
u) [...];
v) Failure to comply with the duties set out in paragraph b ) of paragraph 11 of the
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article 145-F and in Article 145 (10)-H;
x) [...];
z) [...];
aa) [...];
bb) [...];
cc) The omission of communications due to the competent authorities in
matter of acquisition, divestance and holding of shareholdings
qualified as provided for in Articles 102, 107 and 108;
dd) The acquisition of qualified participation in spite of opposition from the
competent authority, in violation of Article 103;
ee) The omission of the information and communications due to the authorities
competent as provided for in Article 108 (2) of this regime and
in Articles 99 and 101, in Article 394 (1), in paragraphs 1 and 2 of the
article 415 and in Article 430 (1) of the Regulation (EU)
n 575/2013, of the European Parliament and of the Council, of 26 of
June 2013, at the established deadlines, as well as their provision
in an incomplete or inaccurate manner;
ff) The failure to meet the suitability ratios of own funds
provided for in Articles 92 of Regulation (EU) No 575/2013 of the
European Parliament and of the Council of June 26, 2013;
gg) The non-compliance with the own fund conservation plan
provided for in Article 138-AD or of the measures imposed by the Bank of
Portugal in the terms of the same;
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hh) The failure to comply with the national measures adopted in implementation of the
article 458 of Regulation (EU), paragraph 575/2013, of Parliament
European and of the Council of June 26, 2013;
ii) The omission of the implementation of systems of government, in violation of the
article 14;
jj) The repeated failure to have a duty to have liquid assets
appropriate, in violation of Article 412 of the Regulation (EU)
n 575/2013, of the European Parliament and of the Council, of 26 of
June 2013;
kk) The inobservance of limits to the great risks set in the article
395. of Regulation (EU) No 575/2013 of the European Parliament
and of the Council, of June 26, 2013;
ll) The exposure to the credit risk of a securitisation position, with
failure to comply with the conditions laid down in Article 405 of the
Regulation (EU) No 575/2013, of the European Parliament and of the
Council, of June 26, 2013;
mm) The omission of the disclosure of information or the disclosure of
incomplete or inaccurate information, in violation of the n. ºs 1 a to 3 of the
Article 431 or Article 451 (1) of the Regulation (EU)
n 575/2013, of the European Parliament and of the Council, of 26 of
June 2013;
nn) The payment to holders of instruments included in the funds
own from the credit institution, whenever these payments
are prohibited, in violation of Articles 138-AB to 138.-AD of the
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present regime or of Articles 28, 51 or 63 of the Regulation
(EU) No 575/2013, of the European Parliament and of the Council, of 26
of June 2013;
oo) The permission that one or more persons who have entrusted the willing
in Articles 30, 31 and 33 become or continue to be members
of the administration or supervisory bodies.
2-In the case of a collective person, the maximum limit of the fine abstractly
applicable is high to the amount corresponding to 10% of the total volume
of net annual business of the economic year prior to the date of the decision
condensation, including gross income consisting of interest and revenue
equstops, the income from shares and other securities of
variable or fixed income and commissions received in the terms of the article
316. of Regulation (EU) No 575/2013, of the European Parliament and of the
Council, of June 26, 2013, whenever this amount is
determinable and higher than that threshold.
3-For the collective persons who are subject to a framework
accounting for different than what is set out in Article 316 of the
Regulation (EU) No 575/2013, of the European Parliament and of the Council,
of June 26, 2013, the calculation of the net annual turnover,
referred to in the preceding paragraph, it is based on the data that best reflect the
provisions of the said article.
4-Should the collective person be a subsidiary, the gross income considered is the
gross income resulting from the consolidated accounts of the parent company in the
previous economic exercise.
Article 211-The
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[...]
Without prejudice to the provisions of the paragraph a ) of paragraph 1 of the following article, if double
of the economic benefit obtained by the offender is determinable and exceeds the
maximum limit of the applicable fine, this is high to that value.
Article 212.
[...]
1-Contract with the fines provided for in Articles 210 and 211, they may
be applied to those responsible for any infraction the following sanctions
accessory:
a) Loss of the economic benefit removed from the infraction;
b) Loss of the object of the infraction and of objects belonging to the agent
related to the practice of the infraction;
c) Publication of the definitive or transitioned decision on trial;
d) When the accused is a natural person, the inhibition of the exercise of
social positions and functions of administration, management, direction or
managerial in any entities subject to the supervision of the Bank of
Portugal, for a period of six months to three years, in the cases of the
article 210, or of one to 10 years, in the cases of Article 211;
e) Suspension of the exercise of the right to vote allotted to holders of
social participations in any entities subject to the supervision of the
Bank of Portugal, for a period of one to 10 years.
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2-A publication as referred to in point c ) of the previous number is effected, in the
full or by excerpt, at the expense of the offender, in an idopic place for the
compliance with the protection purposes of customers and the system
financial, specifically in a national, regional or local newspaper,
depending on what, in the case, appears more appropriate.
Article 213.
[...]
1-A competence for the processing of the counterordinations provided for in the
present General Regime and for the application of the respect of the sanctions belongs to the
Bank of Portugal.
2-[...].
3-In the course of enquiries or instruction, the Bank of Portugal may
request from police entities and any other public services or
authorities all the collaboration or aid necessary for the realization of the
purposes of the process.
Article 215.
[...]
1-When necessary to the fact-finding or the instruction of the process, it may
proceed to searches of any sites and the seizure of any
documents and equipment, as well as determine the freezing of
any values, regardless of the place or institution in which if
find, owing the seized values to be deposited in the account of the
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order of the Bank of Portugal, guaranteeing the payment of the fine and the
costs in which he comes to be sentenced to the accused.
2-Home searches and apprehensions are the subject of a court warrant.
3-Any persons and entities have a duty to provide to the Bank of Portugal
all clarifications and information, as well as to deliver all the
documents, regardless of the nature of their support, objects and
elements, to the extent that the same is necessary for instruction
of the processes of their competence.
4-Addressing search in attorney's office, in office of reviewers
officers of accounts or in medical office, this is enacted and carried out,
under penalty of nullity, by the judge of instruction, in the terms of legislation
specific.
5-With the exception of the situations provided for in Article 126, the searches and seizures
carried out to entities not subject to the supervision of the Bank of Portugal are
object of authorization of the competent judicial authority.
6-Where, in the course of a search, equipment or equipment is seized or
information media that are susceptible to containing information that does not
respect only to customers, operations or information of nature
accounting and prudential of the institution, are the same presented to
competent judicial authority which authorizes or orders by dispatching that
proceed to a survey of the relevant elements in a system
informatics, carrying out a copy or print of this data, in support
autonomous, which is together with the process.
7-In the course of inspections to entities subject to the supervision of the Bank of
Portugal, are obliged to provide you with unrestricted access to your systems
and archives, including computer software, where information is stored
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relating to customers or operations, information of an accounting nature,
prudential or other relevant information within the framework of the competences of the
Bank of Portugal, as well as to allow copies to be extracted and
trassides of that information.
Article 216.
Precautionary measures
1-When it proves necessary to the effective instruction of the process of
counterordinance or the safeguarding of the financial system or interests
of depositors, investors and too many creditors, the Bank of Portugal may:
a) Determine the imposition of conditions on the exercise of the activity by the
argued, specifically the fulfillment of special duties of
information or certain technical rules, or determine the
requirement of application for prior authorization to the Bank of Portugal for
the practice of certain acts;
b) Determine the preventive suspension of the exercise of determined
activity, function or post by the accused;
c) Determine the preventative closure, in whole or in part, of
establishment where to exercise illicit activity.
2-A adoption of any of the measures referred to in the preceding paragraph shall
respect the principles of necessity, adequacy and proportionality,
being preceded by hearing of the accused, except if such a puser at risk the
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goal or effectiveness of the measure.
3-The cautionary measures adopted pursuant to this article are
immediately enforceable and only cease with the court decision that
definitely revoke them, with the start of sanction compliance
accessory of effect equivalent to the cautionary measure enacted or with its
revocation expressed by decision of the Bank of Portugal.
4-When, under the terms of the paragraph b ) of paragraph 1, the suspension is determined
prevention of the exercise of the activity, function or post by the accused and this
come to be sentenced, in the same process, in ancillary sanction that
consents to the inhibition of the exercise of the same activities, functions or positions,
is discounted in the fulfilment of the ancillary sanction the length of time of the
preventive suspension.
5-The decisions of the Bank of Portugal taken under this Article
it is always up to appeal, with immediate ascent, in separate and with effect
merely devolutive.
Article 217.
Form of communications and notifications
1-Communications are made by registered letter, fax, electro-mail or
any other means of telecommunication.
2-The communications which, pursuant to the general regime of the illicit of mere
social ordering, constant of the Decree-Law No. 433/82 of October 27,
changed by Decrees-Leis n. ºs 356/89, October 17, 244/95, 14
of September, and 323/2001, of December 17, and by Law No. 109/2001, of
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169
December 24, and too many cases expressly provided for in the present
regime, hajam of redressing the form of notification, are effected by letter
registered with notice of revenue directed to the notifying or, when it exists, to the
respected defender, or personally, if necessary through the authorities
police officers.
3-A notification of the procedural act that formally imputes to the accused the
practice of a counterordinance, as well as the decision that applies to it
cofine, ancillary sanction or some cautionary measure, is directed to the accused and,
when there is, to the defender's respect.
4-When, in the situations referred to in the preceding paragraph, the accused shall not be
found, the notification is effected by advertisement published in one of the papers
from the locality of its registered office, permanent establishment or the last
known residence in the Country or, in the case that there is no newspaper or the
argued not to have a seat, permanent establishment or residence in the Country,
in one of the nationwide newspapers.
5-Whenever the defendants refuse to receive the notification, the agent certifying
that refusal, worth the act as notification.
Article 218.
Duties of witnesses and experts
1-To witnesses and experts who do not appear in the day, time and place
assigned to the due diligence of the process, nor do they justify the lack in the
own day or in the following five working days, or which, having attended, if
refuse unjustifiably to depose or to exercise the respect of the function, is
applied by the Bank of Portugal for a penalty payment of up to 10 UC.
2-The payment is effected within 10 working days of the notification,
under penalty of proceeding to coercion collection.
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Article 219.
Archiving of autos
1-As soon as it has been collected evidence rather than if it has been verified to
infraction, of the agent not to have practiced any title or to be
legally inadmissible the procedure, are the archived autos.
2-The autos are similarly shelved if it has not been possible to obtain evidence
enough of the verification of the counterordinance or who your were
agents.
3-The process can only be reopened if new evidence emergs that
invalidates the grounds relied upon in the filing decision.
4-A The filing decision is communicated to the agent when subsequent to the
notification of the procedural part that formally imputes you the practice of
a counterordinance or, if previous, when the same has already had some
intervention in the process.
5-[ Revoked ].
6-[ Revoked ].
Article 220.
[...]
1-Completed the instruction, the process is presented to the entity to whom kayba
utters the decision, accompanied by opinion on the infractions they owe
consider themselves to be proven and the sanctions that are applicable to them.
2-[ Revoked. ]
Article 222.
[...]
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1-A The decision that applies cofine contains:
a) The identification of the defendants;
b) The description of the imputed facts;
c) The indication of the evidence that they founded the decision;
d) The indication of the breached and sanctionatory legal standards;
e) The indication of the sanction or sanctions applied, with indication of the
elements that contributed to their determination;
f) The conviction at expense and the indication of the person or persons obliged
to your payment.
2-A notification of the decision contains:
a) The warning that the fine and, when it is the case, the expense, must
be paid within 10 working days after the decision becomes final
or transiting on trial, under penalty of proceeding to its collection
coercion;
b) The indication of the terms in which the conviction may be impugned
judicially and become enforceable;
c) The indication that in the event of a court challenge, the court may
decide upon hearing or, in case the accused, the Public Prosecutor's Office and
the Bank of Portugal does not object, by simple dispatch;
d) The indication that it does not behold the principle of prohibition of the reformatio in
pejus .
Article 223.
[...]
1-The board of directors of the Bank of Portugal may suspend, total
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or partially, the execution of the sanction, whenever it concludes that of that
shape are still carried out in a proper and sufficient manner the purposes of
prevention.
2-A suspension may be conditional on the fulfilment of certain obligations,
specifically those deemed necessary for the regularization of
illegal situations, the repair of damage or the prevention of hazards.
3-The time of suspension of the sanction is set between two and five years,
counting your beginning from the date on which the sentencing decision is
make definitive or transiting on trial.
4-[...].
5-Elapsed the time of suspension without the accused having practiced
any illicit criminal or of mere social ordering for whose
processing is competent the Bank of Portugal, and without it having
breached the obligations that have been imposed on it, considers itself to be extinct
sanction whose execution had been suspended, proceeding, in the case
contrary, to its execution, when it reveals that the purposes that were
at the basis of the suspension could not, by means of it, be achieved.
Article 224.
[...]
1-In the event of a conviction, it is due to the defendants ' expense.
2-Being several the defendants, the expense is rematch by everyone in parts
equal, only being due to the value concerning the defendants who are
doomed.
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3-The expense is intended to cover the expenses incurred in the process,
particularly with notifications and communications, means of recording and
copies or certificates of the process.
4-The reimbursement for the expenses referred to in the preceding paragraph shall be calculated at
reason of half of 1 UC in the first 100 sheets or fraction of the processed
and from one tenth of AU by each subsequent set of 25 sheets or
fraction of the processed.
Article 227-The
[...]
1-When the nature of the infraction, the intensity of guilt and the rest
circumstances the justifying, can the Bank of Portugal, before imputing
formally to the accused the practice of any counterordinance and on the basis of
in the indicted facts, notify the defendants of the decision to apply for a
reduced sanction, under the terms and conditions set out in the following numbers.
2-A applicable sanction is an admoestation, or a fine whose concrete measure
do not exceed the quynch of the minimum threshold provided for the infraction or,
there are several infractions, a single fine that does not exceed 20 times the limit
higher minimum of the counterordinations in tender, and may, in
any case, to be equally determined the adoption of a particular
behavior, as well as the application of the ancillary sanction of publication
of the decision.
3-A The decision provided for in paragraph 1 contains the identification of the accused, the description
summary of the imputed facts, the mention of the violated standards and the standards
sanctionatory and admostation or indication of the fine or sanction ancillary
concretely applied or, where appropriate, of the behaviour
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determined and the time frame for their adoption, as well as the indication of the
elements that contributed to the determination of the sanction.
4-A notification of the decision shall inform the provisions of paragraph 7 and shall be
accompanied by model of declaration of acceptance of the decision and, in the case
of the sanction applied to be a fine, also of a payment guide.
5-Received notification, the defendants have a deadline of 10 working days for
refer to the Bank of Portugal:
a) In case the sanction applied is an admoestation, written statement
of acceptance;
b) In the case that the sanction applied is a fine, written statement of
acceptance or proof of payment of the same.
6-If the accused accepts the decision or proceed to the payment of the fine imposed
and, when it is the case, adopt the determined behavior, the decision of the
Bank of Portugal becomes definitive, as a damning decision, no
may the same facts come back to be appreciated as counterordinance.
7-A The decision handed down is without effect and the process of counterordinance
continues in the common form, by having the Bank of Portugal carry out the
too many instructional representations that it considers appropriate and, if any,
formally impute to the accused the practice of any counterordinance,
without it being limited by the content of that decision, if the accused:
a) Refuse the decision;
b) Do not rule on the same within the established time limit, unless,
having been applied for a fine, this has been paid on the deadline
indicated;
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c) Do not adopt the behavior that has been determined to you;
d) Require any complimentary due diligence.
8-The decisions rendered in summary proceedings are irrecurrable.
9-In the sumptute process it has no place the payment of costs.
Article 227-B
[...]
1-Elapsed the period of judicial challenge, the decision that convict the agent
by the practice of one or more especially serious infractions is disclosed in the
site on the Internet of the Bank of Portugal, in full or by excerpt that includes,
at least, the identity of the convicted natural or collective person and
information about the type and nature of the infraction, even if it was
judicially impugned, being, in this case, made express mention of this
fact.
2-A Judicial decision confirming, change or revoke the sentencing decision
of the Bank of Portugal or the court of 1 th instance is compulsorily
disclosed in the terms of the previous number.
3-A The disclosure takes place on regime of anonymity in case:
a) The penalty is imposed on a natural person and, following a
prior mandatory assessment, if it demonstrates that the publication of data
personal is disproportionate in the face of the seriousness of the infraction;
b) Disclosure puts into question the stability of financial markets
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or commit an ongoing criminal investigation;
c) Disclosure can, as far as it is possible to determine, cause
disproportionate damage in the face of the seriousness of the infraction to the institutions
of credit or natural persons concerned.
4-Case provided that the circumstances provided for in the preceding paragraph may
cease within a reasonable time, the publication of the identity of the natural person or
doomed collective may be postponed during that period.
5-Information disclosed in the terms of the previous figures remains
available on the website of the Bank of Portugal for five years,
countered from the moment the sentencing decision becomes
definitive or transite on trial, may not be indexed to motors of
research from the Internet.
6-Regardless of the transit on trial, the court decisions concerning the
crime of illicit activity of receiving deposits and other funds
refundable are disclosed by the Bank of Portugal under the terms of the
previous numbers.
Article 228.
[...]
1-[...].
2-[...].
3-Havendo several defendants, the time frame referred to in the preceding paragraph
account from the term of the deadline that ends in last place.
Article 230.
Judicial decision
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1-The judge may decide by dispatch when he does not consider it necessary to
trial hearing and the defendants, the Public Prosecutor's Office and the Bank of
Portugal do not object to that form of decision.
2-If there is place the trial hearing, the court decides on the basis of the
evidence held at the hearing, as well as in the evidence produced at the stage
administrative of the counterordinance process.
3-It is not applicable to the proceedings of counterordinance instituted and decided
in the terms of the present regime the principle of prohibition of reformatio in
pejus . "
Article 4.
Addition to the General Regime of Credit Institutions and Financial Societies
They are deferred to the General Regime of Credit Institutions and Financial Societies,
approved by Decree-Law No. 298/92 of December 31, Articles 2-A, 4.-A, 30.
30.-D, 31.-A, 33.-A, 115.-A, 115.-A, 116.-W, 116.-W, 116.-H at 116.
129.-A, 129.-B, 133.-A, 138.-A to 138.-AD, 174.-A, 197.-A, 214.-A, 219.
227.-C and 228.-A, with the following essay:
" Article 2.
Definitions
1-For the purposes of this diploma, it is understood by:
a) "Agency", the branch, in the country, of a credit institution or
financial society with registered office in Portugal or supplementary branch
of a credit institution or financial institution with registered office in the
foreign;
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b) "Authority responsible for supervision on a consolidated basis", the
authority responsible for the exercise of supervision on a basis
consolidated of credit institutions-mother in the European Union, of
investment firms-mother in the European Union and institutions of
credit or investment companies controlled by companies
financial-mother in the European Union or by financial companies
mist-mother in the European Union;
c) "Financial Company", a financial institution whose subsidiaries are
exclusive or mainly credit institutions, companies of
investment or financial institutions, being at least one
of these subsidiaries a credit institution or a company of
investment, and that it is not a mixed financial company;
d) "Financial Company-parent company in Portugal", a financial company
headquartered in Portugal that is not a subsidiary of a credit institution,
or investment company, or a financial company or
mixed financial company, respectively authorized or
established in Portugal;
e) "Financial Company-parent company in the European Union", a company
financial-parent company based in Portugal or in another Member State of the
European Union that is not a subsidiary of a credit institution or
investment company, or of a financial company or
mixed financial company, respectively authorized or
established in any Member State of the European Union;
f) "mixed financial company", a mixed financial company in the
acetion of the point l ) of Article 2 of the Decree-Law No 145/2006 of 31
of July, as amended by Decree-Law No 18/2013 of February 6;
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g) "Joint financial company-mother in Portugal", a company
mixed financial headquartered in Portugal that is not a subsidiary of a
credit institution, or investment company, or of a
financial company or mixed financial company, respectively
authorised or established in Portugal;
h) "Joint financial company-mother in the European Union", a
mixed financial company-mother based in Portugal or another
Member State of the European Union that is not a subsidiary of a
credit institution or investment company, or of a
financial company or mixed financial company, respectively
authorized or established in any Member State of the Union
European;
i) "mixed company", a parent company that is not a company
financial, a credit institution, an investment company
or a mixed financial company, in whose subsidiaries it includes, by the
less, a credit institution or an investment company;
j) "Top direction", the natural persons performing duties
executive in a credit institution or investment company and
that are directly accountable to the governing body
by the current management of it;
k) "Parent Company", the company that exercises control over another company.
l) "Investment companies", the companies in whose usual activity
whether to include the provision of one or more investment services to
third parties or the exercise of one or more investment activities and
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that are subject to the requirements set out in the Directive
n. 2004 /39/CE, of the European Parliament and of the Council, of 21 of
april 2004, with the exception of credit institutions and people
or entities provided for in Article 2 (1) of the same directive;
m) "State-hosting member" or "host country", the
State Member of the European Union in which the credit institution, the
financial companies or the financial institution have a branch
or provide services;
n) "State-Member State of origin" or "country of origin", the Member State
of the European Union in which the institution of credit, the society
financial or the financial institution has been authorized;
o) "Branch", the collective person relatively to whom another collective person,
designated by parent company, find themselves in a control relationship or
on which the Bank of Portugal considers that the parent company exerts
a dominant influence, considering even that the branch of a
subsidiary is also a subsidiary of the parent company that they both depend on;
p) "Institution of credit", the company whose activity consists of receiving
of the public deposits or other refundable funds and in granting
credit on their own;
q) "Institution of crédito-mother in Portugal", a credit institution
that has as a subsidiary a credit institution, a company of
investment or financial institution or to hold a
participation in an entity of that nature and which is not a subsidiary of
other credit institution or investment company, or of a
financial company or mixed financial company, respectively
authorised or established in Portugal;
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r) "Institution of crédito-mother in the European Union", an institution of
crédito-mother based in Portugal or in another Member State of the
European Union that is not a subsidiary of a credit institution or
investment company, or of a financial company or
mixed financial company, respectively authorized or
established in any Member State of the European Union;
s) "Financial Institutions", with the exception of credit institutions and
of the investment companies:
i) The holding companies of social shareholdings subject to the
supervision of the Bank of Portugal, including the companies
financial and the mixed financial companies;
ii) The societies whose main activity consisted in the exercise of a
or more of the activities listed in sections 2 a to 12 and 15 of the list
of Annex I to Directive No 2013 /36/UE of the European Parliament and
of the Council, of June 26, 2013;
iii) The payment institutions;
iv) The managing companies of investment funds furnished in the
acettion of point 6 of Article 199 to the;
t) "Participation", the rights in the social capital of other companies,
represented or not by stock or securities, provided that they create links
lasting with these and are intended to contribute to the activity of the
company, being always considered a holding of detention,
direct or indirect, of at least 20% percent of the social capital or rights
of a vote of a company;
u) "Qualified participation", the direct or indirect participation that
represent a percentage of not less than 10% of the social capital or of the
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voting rights of the participating company or which, for any reason,
enable to exert significant influence on the management of the company
participates, being applicable, for the purposes of this definition, the
in the provisions of Articles 13-to and 13-B;
v) "Relation of control" or "domain relation", the relationship between a
parent company and a subsidiary, or between any natural person or
collective and a company:
i) When you check any of the following situations:
1º) Detaining the natural or the collective person concerned most of the
voting rights;
2º) Be a partner in society and have the right to designate or to impeach
more than half of the members of the governing body or the
supervisory body;
3º) To be able to exert dominant influence on society, by
contract force or clause of the statutes of this;
4º) Be a partner in society and control on its own, by virtue of
agreement concluded with other partners of this, the majority of
voting rights;
5º) Be able to exercise, or exercise effectively, dominant influence
or control over the society;
6º) In the case of a collective person, managing society as if both
constituwithout a single entity;
ii) In the acquiation of the accounting standards to which the institution is
subject by virtue of Regulation (EC) No 1606/2002, of the
European Parliament and of the Council of July 19, 2002;
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iii) For the purposes of the application of paragraphs 1), 2) and 4) of the sub-paragraph i ):
1º) Shall be deemed to have the rights to vote, designation or
removal of the participant equiped the rights of any
another society dependent on the dominant or that with this if
find in a group relationship, as well as those of any
person who attests on their own behalf, but on account of the
dominant or any other of the said societies;
2º) The rights relating to the shares held on account of
person who is not the dominant or other of the said
companies, or relating to the shares held in warranty, provided that,
in the latter case, such rights are exercised in
compliance with the instructions received, or the possession of the
shares is a current operation of the holding company in
matter of loans and voting rights are exercised
in the interest of the provider of the guarantee.
iv) For the purposes of the application of paragraphs 1) and 4) of the sub-paragraph i ),
inferred to the totality of the voting rights corresponding to the
social capital of the society dependent on the relative voting rights
to the participation held by this corporation, by its subsidiary or by
a person who attests on his own behalf but on account of any
of these societies;
w) "Close Relation" or "close relationship", the relationship between two
or more persons, singular or collective, who find themselves connected
of each other through:
ii) Of a share, direct or indirect, of percentage not
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less than 20% in the social capital or voting rights of a
company; or
iii) From a control relationship; or
iv) From a connection of all in a lasting way to a same third
by means of a control relationship;
x) "Society of ancillary services", the society whose main object
have ancillary nature concerning the main activity of one or
more credit institutions or financial companies, notably
the detention or management of real estate or the management of computer services;
y) "Societies in relation to group", related societies among themselves in the
terms in which the Code of Commercial Societies characterizes this
type of relationship, regardless of whether the respective respects are situated
in Portugal or abroad;
z) "Financial Societies", the companies, with the exception of the institutions of
credit, whose main activity consisted of exerting at least one
of the activities allowed to the banks, with the exception of the fearage of
deposits or other reimbursable funds from the public, including the
investment firms and the financial institutions referred to in the
subparagraph ii ) of the paragraph s );
aa) "Branch", the establishment of a company devoid of
legal personality and which directly, in whole or in part,
operations inherent in the activity of the company that it is a part of;
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2-For the purposes of this diploma are, as yet, applicable definitions
constants of Article 4 (1) of Regulation (EU) No 575/2013 of the
European Parliament and of the Council of June 26, 2013.
Article 4-The
Types of investment companies
1-Are investment firms:
a) The brokerage financial companies;
b) The brokerage companies;
c) The managing societies of heritage;
d) The mediating companies of the money or foreign exchange markets;
e) The consulting companies for investment;
f) The managing societies of multilateral trading systems;
g) Other companies that, corresponding to the definition of companies of
investment, as such are qualified by the law.
2-Without prejudice to the provisions of the preceding paragraph, the consulting companies
for investment and the managing companies of trading systems
multilateral are not subject to the provisions of this General Regime.
Article 30-The
Evaluation by credit institutions
1-It is up to the credit institutions to check, in the first line, that all the
members of the administrative and supervisory bodies have the requirements
of suitability required for the exercise of the respective functions.
2-A General assembly of each credit institution must approve a policy
internal selection and assessment of the suitability of the members of the organs of
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administration and surveillance, of which they build at least the identification
of those responsible at the credit institution for the assessment of suitability, the
evaluation procedures adopted, the suitability requirements required,
the rules on prevention, communication and sanction of conflicts of interest
and the means of vocational training made available.
3-The persons to be appointed to the administrative and supervisory bodies shall
submit to the credit institution pursuant to the provisions of paragraph 5,
beforehand to their designation, a written statement with all the
relevant and necessary information for the assessment of their suitability,
including those required under the framework of the authorization process of the
Bank of Portugal.
4-The designated persons shall communicate to the credit institution any
facts supervenient to the designation or authorisation that change the content
of the statement provided for in the preceding paragraph.
5-When the office should be filled by election, the statement referred to in the
n. 3 is presented to the chair of the table of the general meeting of the institution
of credit, to whom it competes to make it available to shareholders in the framework of
preparatory information of the general meeting and inform the shareholders of the
suitability requirements of people to elect, being in the remaining cases, the
statement presented to the body of administration.
6-Should the credit institution conclude that the assessed persons do not meet
the suitability requirements required for the performance of the office, these do not
may be designated or, dealing with a re-evaluation motivated by
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supervenient facts, the necessary measures with a view to
to the sanction of the lack of detached requirements, to the suspension of duties or to the
removal of the persons concerned, except in any of the cases if those
people are authorised by the Bank of Portugal under the process
established in the following article.
7-The results of any assessment or re-evaluation carried out by the institution
of credit must appear in a report which, in the case of the assessment of
persons for elective office, shall be placed at the disposal of the assembly
general in the context of the preparatory information.
8-A credit institution reassesses the suitability of designated persons for the
organs of administration and surveillance whenever, throughout the course of the respect
mandate, surface overdue circumstances may occur that may determine
the non-fulfillment of the required requirements.
9-The evaluation report of the members of the governing bodies and
monitoring must accompany the application for permission addressed to the
Bank of Portugal or, dealing with reassessment, be provided to you as soon as
completed.
Article 30-B
Evaluation by the Bank of Portugal
1-A The suitability of the members of the governing bodies and surveillance of the
credit institutions is object of assessment by the Bank of Portugal, in
seat of the authorization process of the credit institution.
2-Whenever there is a change of the members of the organs of
administration and surveillance, must be requested by the credit institution
to the Bank of Portugal to be given permission for the exercise of duties.
3-A credit institution, or any interested, may ask the Bank for
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of Portugal authorisation for the exercise of duties in advance to
designation of the members of the administrative and supervisory bodies,
expiry of this prior authorization within 60 days of its issuance
case has not been required to register pursuant to the provisions of the article
69. and following.
4-A authorization for the exercise of functions of the members of the organs of
administration and oversight by the Bank of Portugal is a necessary condition
for the beginning of the exercise of the respective duties.
5-When the application or the submitted documentation contain
insufficiencies or irregularities that may be met by the
interested, these are notified to supply them within a reasonable period of time, under
penalty of, not by doing so, being refused permission.
6-A evaluation of the Bank of Portugal is based on the information provided
by the person assessed and by the credit institution, in enquiries
directly promoted and, whenever convenient, in personal interview
with the interested.
7-The changes of the members of the administrative and supervisory bodies,
as well as the renewals of mandates, they consider themselves to be authorized should the
Bank of Portugal not to comment within 30 days of the date
where to receive the duly instructed respect request, or, if it has
requested supplemental information, do not address the deadline of 30
days after the recetion of these.
8-Without prejudice to the provisions of the preceding paragraph, the definitive registration of
designation of member of the governing bodies or surveillance together
of the conservatory of the commercial register depends on the authorization of the Bank of
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Portugal for the exercise of duties.
9-The provisions of the preceding paragraphs apply, with the necessary
adaptations, to the managers of branches and representative offices
provided for in Article 45.
10-For the purposes of the provisions of this Article, the Bank of Portugal may
exchange information with the Securities Market Commission and
with the Insurance Institute of Portugal, as well as with the authorities of
supervision referred to in Article 18 para.
11-When the activity of the credit institution comprehend the activity of
intermediation in financial instruments, the consultation with the Commission of the
Securities Market referred to in the preceding paragraph shall be mandatory.
12-The Bank of Portugal can, through regulation, make it depend on the
exercise of the holders of essential functions to your permit.
Article 30-C
Refusal and revocation of the authorisation
1-A lack of idoneity, professional qualification, independence or
availability of the members of the administrative and supervisory bodies is
foundation of refusal of respect for the exercise of duties for the exercise of duties.
2-A refusal of permission on the grounds of lack of some of the requirements
mentioned in the preceding paragraph is communicated by the Bank of Portugal,
to those interested and to the credit institution.
3-In case the mandate of the member concerned has already started, the refusal of the
authorization for the exercise of duties has as effect a cessation
of that mandate, and the credit institution shall promote the registration of the
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termination of duties of the member concerned with the Conservatory of the Registry
commercial.
4-A authorization for the exercise of duties may be revoked at all
time in the face of the occurrence of super-convenient circumstances, susceptible
of determining the non-fulfillment of the requirements of which it depends on
authorization.
5-A authorization is revoked when it is verified that it was obtained by means of
false statements or other illicit expedients, without prejudice to the sanctions
that to the case couberin.
6-A The revocation of the authorization for the exercise of functions has as an effect the
immediate cessation of duties of the member concerned, and the Bank of
Portugal communicate such a fact to the said person and to the credit institution, the
which adopts the appropriate measures for that cessation to occur from
immediate, and shall promote the registration of the severance of the member's duties
at cause with the conservatory of the commercial register.
7-The provisions of the preceding paragraphs apply, with the necessary
adaptations, to the managers of branches and representative offices
provided for in Article 45.
Article 30-D
Idoneity
1-In the assessment of the idoneity must take into account the way the person
manages usually business, professional or personal business, or exercises the
profession, in particular on the aspets that reveal their ability to
decide in a thoughtful and judicious manner, or its tendency to comply
punctually to your obligations or to have compatible behaviours
with the preservation of market confidence, taking into consideration
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all the circumstances allowing to evaluate the professional behaviour
for the functions in question.
2-A The appreciation of the idoneity is effected on the basis of criteria of nature
objective, taking on the basis of information as much as possible complete
about the past functions of the person concerned as a professional, the
more salient features of their behaviour and the context in which the
his decisions were made.
3-In the assessment to which the previous figures are referred, it must be in
account, at least, of the following circumstances, depending on its severity:
a) Indications that the member of the board of directors or of
supervision did not act transparently or cooperatively in their
relations with any supervisory authorities or regulation
national or foreign;
b) Refusal, revocation, cancellation or cessation of registration, authorization,
admission or leave for the exercise of a commercial activity,
business or professional, by supervisory authority, order
professional or body with analogous functions, or destitution of the
exercise of a post by public entity;
c) The reasons that motivated a dismissal, the cessation of a
linkage or the ousting of a post that requires a special relationship of
trust;
d) Prohibition, by judicial authority, supervisory authority, order
professional or body with analogous functions, of acting in quality
of administrator or manager of a civil or commercial society or
of in it perform functions;
e) Inclusion of mentions of non-compliance in the central of
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credit responsibilities or any other records of
analogous nature, on the part of the competent authority for the purpose;
f) Results obtained, from the financial or business point of view, by
entities managed by the data subject or in which this has been or
be a holder of a qualified participation, having especially in
account any processes of recovery, insolvency or liquidation,
and the way it contributed to the situation that led to such
processes;
g) Personal insolvency, regardless of the qualification qualification;
h) Civil actions, administrative processes or criminal proceedings, well
like any other circumstances that, attentive to the concrete case,
can have a significant impact on the financial soundness of the
person in question.
4-In its appreciative judgment, the Bank of Portugal should take into consideration, à
light of the preventive purposes of this article, in addition to the facts
set out in the previous number or others of an analogous nature, all and
any circumstance whose knowledge is legally accessible and
that, by gravity, frequency or any other characteristics
attendant, allow to funnable a prognosis judgment on the guarantees that the
person in question offers in relation to sound and prudent management of the
credit institution.
5-For the purposes of the provisions of the preceding paragraph, they shall be taken in
consideration, at least, of the following situations, depending on their severity:
a) Insolvency, declared in Portugal or abroad, of the person
interested or of company per se dominated or that it has been
administrator, director or manager, of law or de facto, or member
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of the supervisory body;
b) The charge, pronunciation or conviction, in Portugal or in the
foreign, for crimes against heritage, crimes of forgery and
falsity, crimes against the realization of justice, crimes committed in the
exercise of public functions, tax crimes, crimes specifically
related to the exercise of financial activities and insurers and
with the use of means of payment and, still, crimes foreseen in the
Code of Commercial Societies;
c) The prosecution or conviction, in Portugal or abroad, by
infractions of the standards governing the activity of the institutions of
credit, financial companies and managing companies of
pension funds, as well as the standards governing the market for
securities and the insurer or reinsurer activity,
including insurance mediation or reinsurance;
d) Infractions of disciplinary, deontological or conduct rules
professional, in the framework of regulated professional activities;
e) Facts that have determined the judicial destitution, or the
judicial confirmation of destitution for just cause, of members of the
organs of administration and surveillance of any society
commercial;
f) Facts practiced in the quality of administrator, director or manager
of any commercial society that have determined to
conviction for damage caused to society, to partners, to creditors
social or to third parties.
6-A conviction, yet definitive, by unlawful facts of a criminal nature,
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counterordinance or other does not have as a necessary effect the loss of
suitability for the exercise of functions in credit institutions, owing
their relevance being weighted, among other factors, in function of nature
of the illicit committed and its connection with the financial activity, of its
occasional or reiterating character and the level of personal involvement of the
interested person, of the benefit obtained by this or by persons with it
directly related, from the injury caused to the institutions, to their
customers, their creditors or the financial system and, still, the eventual
violation of duties relating to the supervision of the Bank of Portugal.
7-The Bank of Portugal, for the purposes of this Article, exchange information
with the Insurance Institute of Portugal and with the Committee on the Market of
Securities, as well as with the supervisory authorities referred to
in Article 18.
8-The Bank of Portugal consults on the database of Authority sanctions
European Banking for the purposes of the idoneity assessment.
9-It is considered the suitability of the members of the organs of
administration and oversight of credit institutions that meet
registered with the Securities Market Committee, of the
Institute of Insurance of Portugal or Union supervisory authorities
European, when such registration is subject to monitoring requirements of the
suitability, unless super-selling facts lead the Bank from
Portugal to pronounce it in a contrary sense.
Article 31-The
Independence
1-The independence requirement has in view to prevent the risk of the subjection of the
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members of the organs of administration and surveillance to undue influence
of other persons or entities, promoting conditions permitting the
exercise of its functions with exemption.
2-In the assessment are taken into account all susceptible situations of
affect independence, particularly the following:
a) Positions that the person concerned shall exercise or have exercised at the institution of
credit in question or other credit institution;
b) Relations of kinship or analogues, as well as professional relationships
or of an economic nature that the person concerned maintains with others
members of the board of directors or audit of the institution of
credit, its parent company or its subsidiaries;
c) Relations of kinship or analogues, as well as professional relationships
or of an economic nature that the person concerned keeps with person
to hold qualified participation in the credit institution, in its
parent company or in its subsidiaries.
3-Supervisory Bodies shall have a majority of members
independent, in the acetment of Article 414 (5) of the Code of Societies
Commercials.
Article 32-The
Provisional suspension of functions
1-In situations of justified urgency and to prevent the risk of serious damage
for the sound and prudent management of a credit institution or for the
stability of the financial system, the Bank of Portugal can determine the
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provisional suspension of the duties of any member of the respects
organs of administration or surveillance.
2-A communication to be carried out by the Bank of Portugal to the credit institution and
to the holder of the office in question, following the deliberation taken under the
of the provisions of the preceding paragraph, shall contain the mention that the suspension
provisional of functions is preventative character.
3-A Interim suspension cesses its effects:
a) By decision of the Bank of Portugal to determine it;
b) By virtue of revocation of the authorization for the exercise of duties
of the suspended person;
c) As a result of the adoption of one of the measures provided for in paragraph 4
of the previous article;
d) For the course of 30 days on the date of suspension, without it being
instigated procedure with a view to adopting some of the decisions
provided for in points b ) and c ), from whose start it must be notified to
credit institution and the holder of the office concerned.
Article 33-The
Holders of essential functions
1-Credit institutions must identify the posts whose holders, not
belonging to the organs of administration or surveillance, exercise functions
that would confirm them significant influence in the management of the credit institution.
2-The posts referred to in the preceding paragraph comprise at least the
responsible for the functions of compliance , internal audit, control and management
of risks of the credit institution, as well as other functions as such
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come to be considered by the credit institution or defined through
of regulation by the Bank of Portugal.
3-A suitability, for the exercise of the respective functions, of the holders of
essential functions of credit institutions is subject to evaluation,
applying, with the necessary adaptations, the scheme provided for in the articles
30., 30.-A, 30.-D and 31. to 32 .ºA.
4-It is up to the credit institutions to check in advance the filling of the
suitability requirements, professional qualification and availability of the
holders of essential functions, and the results of such assessment
record in the report referred to in Article 30 (7).
5-The Bank of Portugal may, at all times, make a further assessment
of the suitability of holders of essential functions of credit institutions
on the basis of circumstances already verified at the time of your designation or
other, should you understand that such circumstances have been the subject of a
appreciation manifestly deficient by the credit institution, or with
foundation in any overdue circumstances.
6-In the situation provided for in the preceding paragraph, the Bank of Portugal applies, with
the necessary adaptations, the measures provided for in Article 32 (4) or
fixed term limits for credit institutions to take appropriate measures,
owing in any case to communicate their decision to the persons concerned and to the
credit institution.
Article 81-The
Database of accounts
1-The Bank of Portugal organizes and manages a database relating to accounts of
deposit, payments, credit and financial instruments,
called the database of accounts domiciled in the national territory in
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credit institutions, financial companies or payment institutions,
hereinafter referred to as participating entities.
2-A The database of accounts contains the following elements of information:
a) Identification of the account and the participating entity where this se
finds domicile;
b) Identification of the respective holders and the persons authorized to
moving them, including procurators, mandators or others
representatives;
c) Date of opening and closing of the account.
3-Participating entities send to the Bank of Portugal the information
referred to in the preceding paragraph with the periodicity defined in
regulation of the Bank of Portugal.
4-A information contained in the database of accounts can be communicated to
any judicial authority in the context of a criminal proceeding, as well as
to the Attorney General of the Republic, or to whom to exercise the respects
competencies per delegation, and the Financial Information Unit, in the
scope of assignments that are committed to them by Law No. 25/2008, 5
of June, as amended by Decree-Law No. 317/2009 of October 30, by the
Law No. 46/2011, of June 24, and by the Decrees-Laws 242/2012, of 7
of November, and 18/2013, of February 6.
5-A information from the database of accounts relating to the identification of the
participating entities in which the accounts are domiciled may be
similarly transmitted, preferably by way of electronical:
a) To The Tax and Customs Authority in the framework of the respects
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assignments regarding collection of debts and still in the situations in
that the same determines, in the legal terms, the waiver of secrecy
banking;
b) To the Institute of Financial Management of Social Security, IP, in the framework
of the respective assignments relating to the collection of debts and concession
of socio-economic supports;
c) To enforcement officers, in the legally foreseen terms, as well as
to judicial officers when in the exercise of duties
equiparable to those in the framework of executive processes for
payment of right amount.
6-The provisions of the preceding paragraphs shall be without prejudice to the right of access of the
holder of their personal data, pursuant to Law No. 67/98, 26 of
October.
7-A constant information from the database of accounts can be used
by the Bank of Portugal, within the scope of its assignments.
8-A responsibility for the constant information of the database of accounts
is from the participating entities that report it, by it being exclusive
rectify it or change it, either by its initiative or at the request of its customers,
whenever errors or omissions occur.
9-The Bank of Portugal can access the constant information from the base of
tax identification data, managed by the Tax Authority and
Customs, for verification of the correctness of the name and number of
tax identification of the holders and persons authorized to move accounts
transmitted by the participating entities, in the terms of protocol to
celebrate between the Bank of Portugal and the Taxation and Customs Authority.
10-The Bank of Portugal regulates the aspements necessary for the implementation of the
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provisions of this Article, specifically with regard to access
reserved to the centralized information and reporting duties of the entities
participants.
Article 115-The
Systems of government
1-The governing body of credit institutions defines, scrutinizes and is
responsible for the application of government systems that guarantee management
effective and prudent of the same, including the separation of functions within the
organization and the prevention of conflicts of interest.
2-Compete to the body of administration in the definition of the systems of government:
a) Take responsibility for the credit institution, approve and
scrutinize the implementation of the strategic objectives, of the strategy of
risk and the internal government of it;
b) Ensuring the integrity of accounting and information systems
financial, including financial and operational control and the
compliance with the legislation and regulations applicable to the institution
of credit;
c) Overseeing the process of disclosure and the duties of information
to the Bank of Portugal;
d) Follow up and control the activity of the top direction.
3-The body of administration monitors and periodically evaluates the effectiveness of the
systems of government of the credit institution and take the appropriate measures
to correct any deficiencies deposed in them.
Article 115-B
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Committee of nominations
1-Credit institutions, listening to their size, internal organisation,
nature, scope and the complexity of its activities, can create a
nominations committee, composed of members of the board of directors
that do not perform executive functions or by members of the organ of
supervision.
2-Are competences of the nominations committee regarding the organs of
administration and surveillance:
a) Identify and recommend the candidates for positions in those bodies,
evaluate the composition of the same in terms of knowledge,
skills, diversity and experience, draw up a description of the
roles and qualifications for the posts in question and assess the time to
dedicate to the exercise of the function;
b) Set a goal for the representation of men and women
in those organs and devise a policy aimed at increasing the
number of persons of the genus underrepresented with a view to achieving the
said goals;
c) Evaluate, with a periodicity, at a minimum, annual, the structure, the
dimension, the composition and performance of those organs and formulate
recommendations to the same with a view to possible changes;
d) Evaluate, with a minimum annual periodicity, the knowledge, the
competences and the experience of each of the members of those
organs and the organs as a whole, and communicate them the respects
results;
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e) Periodically review the policy of the governing body in
matter selection and appointment of the top direction and formulate them
recommendations.
3-In the performance of its duties, the nominations committee shall seek to avoid
that the decision-making of the board of directors is dominated by a
any individual or small group of individuals at the expense of the
interests of the credit institution as a whole.
4-The nominating committee may use all means it considers
necessary, including recourse to external consultants, and use the funds
required for this purpose.
5-The goal and policy for the representation of the underrepresented gender
referred to in paragraph b ) of Article 435 (2) of the Regulation (EU)
n 575/2013, of the European Parliament and of the Council, of June 26 of
2013, as well as the respect of the application, are published in accordance with the terms of the
c ) of paragraph 2 of that same article.
Article 115-C
Policy for remuneration
1-Credit institutions define the applicable remuneration policy,
including the discretionary pension benefits, at the group level, of the
parent and branch offices.
2-A The remuneration policy covers the following categories of collaborators:
a) The members of the administrative and supervisory bodies;
b) The top direction;
c) Those responsible for the risk-taking;
d) Those responsible for the control functions;
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e) The collaborators whose total remuneration places them on the same
remuneration ranking that is provided for by the categories referred to in the
points a ), b ) or c ), as long as the respective professional activities
have a material impact on the risk profile of the institution of
credit.
3-A The remuneration policy of credit institutions must respect, of
proper shape to its size and internal organisation and nature, to the
scope and to the complexity of its activities, the following requirements:
a) To promote and be consistent with sound and prudent risk management and
not encourage risk-taking in excess of the level of risk
tolerated by the credit institution;
b) Be compatible with the business strategy of the credit institution,
your long-term goals, values and interests and include
measures to prevent conflicts of interest;
c) To provide for the independence of collaborators who carry out duties of
control and risk management in relation to the structure units that
control by assigning them the appropriate powers and a remuneration
depending on the achievement of the objectives associated with its functions and of
independent form of the performance of the respective units of
structure;
d) Establish that the remuneration of the collaborators who perform
risk and control management functions is scrutinised directly by the
remuneration committee or, in the absence of this, by the supervisory body;
e) Distinguish clearly the criteria for component fixation
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fixed-rate of remuneration, grounded mainly on experience
relevant professional and the organizational responsibility of the
functions of the collaborator, and the criteria for the variable component of the
remuneration, grounded in sustainable and adapted performance
at the risk of the credit institution, as well as in the fulfilment of the
functions of the collaborator in addition to the required.
4-The governing body submits annually to the approval of the assembly
general the remuneration policy concerning the collaborators referred to in
point ( a) of paragraph 2.
5-The board of directors approves and periodically reviews the policy of
remuneration for the collaborators referred to in points (b) to and) of the
n. 2.
6-A implementation of the remuneration policy should be subject to an analysis
internal centralized and independent, with a minimum annual periodicity, the
carry out by the remuneration committee, if existing, by the members not
executives of the board of directors or the members of the organ of
monitoring, taking aim at the verification of compliance with the
remuneration policies and procedures adopted by the societarium body
competent.
Article 115-D
Remuneration in credit institutions that benefit from intervention
excecional of the State
When credit institutions benefit from an excecional intervention
of the State, the political remuneration for remuneration is still subject to the following
requirements during the intervening period:
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a) It shall not be ascribe to the members of the governing body
any variable remunerative component, unless they exist
weighty objective reasons that justifies it;
b) The remunerations must be restructured in a consentantaneous manner
with sound risk management and with long-term growth
of the credit institution, including the setting of limits on remuneration
of the members of the governing body;
c) The variable component of the remuneration of the collaborators of the
credit institution should be limited to a percentage of the profits
where this is necessary for the maintenance of a base of
solid own funds and for the timely cessation of intervention
excecional of the State.
Article 115-And
Variable component of remuneration
1-In the definition of the variable component of the remuneration of collaborators
referred to in Article 115 (2)-C, credit institutions shall
ensure that that component does not limit the capacity of the institution of
credit to strengthen its own fund base and that in its concession
are taken into consideration all types of risks, current and future.
2-For the purposes of the provisions of the preceding paragraph, when the remuneration
depend on the performance of the collaborator:
a) The definition of the total value of the variable component of remuneration
must check in through the combination of the performance evaluation
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of the collaborator, who must consider criteria of a financial nature and
non-financial, and of the performance of the structure unit of that
with the overall results of the credit institution;
b) The assessment shall process in a multiannual framework, ensuring
that the evaluation process is based on long-term performance
and that the payment of the remuneration components of it
dependents are rebroken over a period that has in
consideration of the underlying economic cycle of the credit institution and
your business risks;
c) The afferition of the performance used to compute the component
variable of the remuneration shall provide for adjustments considering the
various types of risks, current and future, as well as the cost of funds
own and the necessary liquidity to the credit institution.
3-With respect to the variable component of remuneration, at least
half of your amount, whether that component is deferred or not,
should consist of an appropriate balance between:
a) In the case of credit institutions issuers of shares or, as per
form of the institution, equivalent instruments, admitted to the
trading on regulated market, stocks or instruments
equivalents issued by the same, and in the remaining cases, instruments
indexed to the shares or equivalent instruments not expressed in
cash; and
b) Where possible, other instruments in the acetation of Articles 52 or
63. of Regulation (EU) No 575/2013 of the European Parliament and
of the Council, of June 26, 2013, or other instruments that
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can be fully converted into fund instruments
main own level 1 or the value of which can be reduced, in
measure in which they adequately reflect the creditworthiness of the
credit institution and are appropriate for the purposes of the component
variable of the remuneration.
4-The Bank of Portugal may, through regulation, impose restrictions on the
types and characteristics of the instruments referred to in the preceding paragraph or
prohibit the use of some of these instruments.
5-Without prejudice to the provisions of paragraph 6, the instruments referred to in paragraph 3
shall be subject to a policy of retention by the credit institution,
consubstantiated in an appropriate period of unavailability upon
retention by the credit institution, in such a way as to compatibilize incentives
with the long-term interests of the credit institution.
6-A variable component of remuneration, including the deferred part of that
remuneration, shall only constitute an acquired right or be paid if it is
sustainable in the light of the financial situation of the credit institution and
grounded in the light of the performance of the same, of the unit of structure in
cause and of the collaborator in question.
7-A substantial part of the variable component of the remuneration shall be
deferred over a minimum period of three to five years, and shall such
component and the duration of the deferment period be fixed in function
of the economic cycle, of the nature of the activity of the credit institution, of the
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your risks and the activity of the collaborator in question, and must be
respected the following:
a) At least 40% of the variable component of the remuneration is deferred,
being that amount raised to at least 60% when the
variable component of the remuneration is of particularly value
high;
b) The right to payment of the variable component of remuneration
subject to deferment shall be assigned on a proportional basis to the
span of the deferment period.
8-Without prejudice to applicable civil and labour law, the variable component of
remuneration shall be amended in the terms of the following numbers if the
performance of the credit institution regrida or is negative, having in
consideration of both the current remuneration and reductions in the payment of
amounts whose right to receipt has already constituted.
9-A totality of the variable component of the remuneration shall be subject to
mechanisms for reduction (" malus ") and reversal (" clawback ") , owing to
credit institution set out specific criteria for its application,
ensuring that they are, in particular, considered the situations in which the
collaborator:
a) Participated in or was responsible for an acting that resulted in
significant losses to the credit institution;
b) It ceased to meet suitability and idoneity criteria.
10-For effects of the previous number:
a) Mechanism of reduction, is the scheme through which the institution may
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reduce in whole or in part the amount of variable remuneration that
there has been object of deferment and whose payment still does not constitute
an acquired right;
b) Mechanism of reversal, is the regime through which the institution retains
the amount of the variable remuneration and whose payment already constitutes a
right acquired.
11-The payments related to the early cessation of the exercise of
functions of the collaborator must reflect the performance verified throughout
of them in such a way as not to encourage inappropriate behaviour.
12-A remuneration targeting the compensation of new collaborators by
cessation of the exercise of previous functions shall take into account the
long term interests of the credit institution, including application
of the rules regarding performance, unavailability upon retention
by the institution of credit, deferment and reversal.
13-No guaranteed variable remuneration can be granted, except when
of the hiring of new collaborators, only in the first year of
activity and case there is a strong and strong capital base in the institution of
credit.
14-A policy on the discretionary pension benefits should be
compatible with business strategy, objectives, values and the
long term interests of the credit institution, and such benefits
take the form of the instruments referred to in paragraph 3, by conducting themselves by the
next:
a) In case the cessation of the collaborator's activity occurs before the reform,
the discretionary pension benefits of which it is holder are
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held by the credit institution for a period of five years,
terminus which constitutes an acquired right from the collaborator to the recede
of the respect payment by the credit institution.
b) When the collaborator achieves the reform situation, the benefits
discretionary pension discretionary that is a holder and whose right to respect
payment has already been purchased are withheld by the institution of
credit for a period of five years, finite of which are delivered to the
collaborator.
15-The rules arising from this Article shall not be removed,
in particular through the use by the collaborators of
any risk coverage mechanism tendon to mitigate the effects of
alignment for the risk inherent in the modalities of remuneration or
through the payment of the variable component of the remuneration by
intermediate of instrumental entities or other methods with effect
equivalent.
Article 115-F
Ratio between fixed and variable components of remuneration
1-Credit institutions must establish appropriate ratios between the
fixed and variable components of the total remuneration of the collaborators
referred to in Article 115 (2)-C, representing the fixed component a
sufficiently high proportion of total remuneration in order to allow the
application of a fully flexible policy concerning the variable component
of the remuneration, including the possibility of non-payment of it.
2-Without prejudice to the provisions of paragraphs 3 and 4, the variable component of
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remuneration shall not exceed the value of the fixed component of remuneration
for each collaborator.
3-Credit institutions can approve a higher maximum level
for the variable component of the total remuneration than the one established in the
previous number, provided that the variable component of the remuneration did not
stand to exceed double the fixed component of the remuneration of each
collaborator.
4-A approval of a higher ratio, in the terms of the previous number,
comply with the following procedure:
a) The credit institution presents to the general meeting on the date of
convenor, a detailed proposal relating to the approval of
a higher maximum level of the variable component of the
remuneration, which indicates the proposed maximum ratio, the fundamentals
and the scope of the proposal, including the number of collaborators
affected, their functions and the demonstration that the proposed ratio is
compatible with the obligations of the credit institution, in particular
for the purpose of maintenance of a solid base of own funds;
b) The general meeting deliberates on the proposal submitted in the terms
of the preceding subparagraph by a two-thirds majority of the votes issued,
provided that they are present or represented shareholders of
half of the representative shares of the social capital or, if so not if
check, by majority of three-quarters of shareholder votes
present or represented;
c) The collaborators directly affected by the maximum levels more
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high of the variable component of the remuneration are not allowed
to directly or indirectly exercise any voting rights while
shareholders.
5-A The credit institution informs the Bank of Portugal, immediately, of the
proposal submitted to the shareholders and of the deliberation that there has been adopted,
owing to the Bank of Portugal to use the information received as to the
deliberation adopted to affer the practical respects in the present matter and
transmit this information to the European Banking Authority.
6-In the definition of the ratio between fixed and variable components of remuneration
total, credit institutions can apply a discount rate,
calculated in accordance with the guidelines set out by the Banking Authority
European under the provisions of the second paragraph of the sub-paragraph iii) from the
point ( g ) of Article 94 (1) of the Directive No 2013 /36/UE of the Parliament
European and Council, of June 26, 2013, to a maximum of one
fourth of the variable component of the remuneration, provided that the same is
paid in deferred instruments for a period equal to or greater than five
years.
Article 115-G
Communication and disclosure of the remuneration policy
1-The Bank of Portugal collecs the disclosed information in accordance with the
disclosure criteria set out in the paragraphs g ), h ) and i ) of the Article 1 (1)
450. of Regulation (EU) No 575/2013, of the European Parliament and of the
Council, of June 26, 2013, and analyzes comparatively the
trends and remuneration practices.
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2-Credit institutions communicate to the Bank of Portugal the number of
collaborators who earn annual income equal to or greater than € 1
000000, by economic exercise, in pay intervals of € 1000
000, including the inherent professional responsibilities, the area of
business involved and the main components of fixed remuneration and
variable and still contributions to the discretionary pension benefits.
3-The Bank of Portugal may define, through regulation:
a) The rules to be observed in relation to remuneration policies of the
institutions subject to their supervision;
b) Reporting duties to the Bank of Portugal concerning the policy of
remuneration.
4-The Bank of Portugal communicates the information provided for in paragraphs 1 and 2 to the
European Banking Authority.
Article 115-H
Committee of remuneration
1-Significant credit institutions in terms of size, of
internal organization and the nature, scope and complexity of the respects
activities should set up a remuneration committee, composed of
members of the board of directors who do not perform duties
executive or by members of the supervisory body.
2-Compete to the remuneration committee to make informed judgements and
independent on the policy and practices of remuneration and on the
incentives created for the purposes of risk management, capital and liquidity.
3-The remuneration committee is responsible for the preparation of the decisions
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relating to remuneration, including decisions with implications in terms of
of risks and management of the risks of the credit institution concerned, which should
be taken up by the competent social organ.
4-Within the scope of its activity, the remuneration committee shall observe the
long term interests of shareholders, investors and others
interested in the institution of credit, as well as the public interest.
Article 115-I
Duty of disclosure on the website
1-Credit institutions and financial corporations that maintain a
site on the Internet must make the record of the same information exposing the
compliance with the standards provided for in Articles 115-to 115-W, well
how of the standards they have on policies concerning the requirements of
idoneity, professional qualification, availability and independence of the
members of the administration and supervisory bodies.
2-The Bank of Portugal regulates the content, degree of detail and form of
presentation of the information to be released on the terms in the preceding paragraph.
Article 115-J
Process of self-assessment of the suitability of internal capital
1-Credit institutions must have sound strategies and processes,
effective and complete to assess and maintain on a permanent basis the
amounts, types and distribution of internal capital that they consider appropriate
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to cover the nature and level of the risks to which they are or may come to
be exposed.
2-Credit institutions periodically analyze the strategies and the
processes, in order to guarantee their exhaustive character and their
proportionality with respect to the nature, level and complexity of the
respects activities.
Article 115-K
Treatment of risks
1-Compete to the administration body of the credit institution:
a) To approve and periodically review the strategies and policies concerning the
assumption, management, control and reduction of risks to which the institution of
credit is or may come to be subject, including those resulting from the
macroeconomic conjuncture in which it acts, meeting the phase of the cycle
economic;
b) Allocate adequate resources to the management of the risks regulated in the present
General Regime and in Regulation (EU) No 575/2013 of Parliament
European and of the Council of June 26, 2013;
c) Affect sufficient time for the analysis of the risk issues;
d) Actively participate in the evaluation of assets and the use of
external risk notations and related internal models with
these risks.
2-For the purpose of the appropriate exercise of the functions referred to in the number
previous, credit institutions implement internal procedures of
communication with the body of administration.
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Article 115-L
Committee of risks
1-Significant credit institutions in terms of size, organisation
internal and nature, scope and complexity of your activities must
constitute a risk committee composed of members of the organ of
administration that does not perform executive functions and that they possess
appropriate knowledge, skills and experience to be able to
understand entirely and monitor the risk strategy and the apetness
at the risk of the credit institution.
2-In the credit institutions not covered by the preceding paragraph, the functions
of the risk committee may be exercised by the supervisory body,
and the members ' respective members shall possess the knowledge, the
skills and the experience necessary for the exercise of those functions.
3-Without prejudice to the provisions of Article 115 (1)-K, it shall compete with the Committee of
risks, specifically:
a) Advising the administration body on the apetence for risk and
the general, current and future risk strategy of the credit institution;
b) Assist the governing body in the supervision of the execution of the
risk strategy of the credit institution by the top direction;
c) Analyze whether the conditions of the products and services offered to the
customers take into account the business model and strategy of
risk of the credit institution and to present to the board
a remediation plan, when that analysis results that the said
conditions do not adequately reflect the risks;
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d) Examine whether the incentives set out in the remuneration policy
of the credit institution have in consideration the risk, the capital, the
liquidity and expectations as to the results, including the dates of the
recipes.
4-The watchdog and the risk committee, when the latter has been
constituted, have access to the information on the risk situation of the
credit institution and, if necessary and appropriate, to the management function of
risk of the credit institution and external expert advice,
how to be able to determine the nature, quantity, format and frequency
of the information regarding risks that they should receive.
Article 115-M
Risk management unit
1-Credit institutions establish a risk management unit
independent of the operational functions and endowed with adequate resources to the
exercise of the function autonomously, being responsible for:
a) Ensure that all the material risks of the credit institution are
identified, assessed and reported properly;
b) Participate in the definition of the credit institution's risk strategy;
c) Participate in decisions regarding the management of material risks.
2-The responsible for the risk management unit exerts form functions
independent and in exclusivity, owing to belong to the top direction,
save if the nature, level and complexity of the institution's activities of
credit not to justify it, being in this case the function performed by a
upper frame of the credit institution, safeguarding the non-existence
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of conflict of interest.
3-The responsible for the risk management unit reports directly to the
supervisory body and cannot be stripped of its functions without
prior approval of the same.
Article 115-N
Credit risk and counterparty risk
1-The process of approval, amendment, extension or refinancing of
credit is established in a clear manner and is grounded in solid criteria and
defined.
2-Credit institutions must have methodologies and procedures
internal permitting, without exclusive or systematic dependence of
external risk ratings, assess the credit risk of the positions at risk
about individual debtors, securities or securitisation positions
as well as the credit risk at the portfolio level.
3-Should the requirements of own funds be based on a notation by
part of a rating agency or in the fact that it is not
available a notation for a given position at risk, the institution of
credit is required to consider relevant supplementary information
to assess the affectation of the internal capital.
4-Credit institutions implement effective systems for the management and the
continuous control of the various portfolios with credit risk and positions
at risk, particularly to identify and manage credit problems,
carry out necessary value corrections and constitute appropriate provisions.
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5-Credit institutions ensure the appropriate diversification of
respect for credit portfolios, considering the targeted markets and their
global credit strategy.
Article 115-The
Residual risk
Credit institutions implement internal policies and procedures,
defined in writing, which guarantee the control of the residual risk of the techniques
recognized adoptees for the reduction of credit risk being less effective
than anticipated.
Article 115-P
Risk of concentration
Credit institutions ensure that the risk of concentration arising
of the positions at risk on each counterparty individually considered,
including central counterparties, sets of counterparties linked to each other and
counterparties that act in the same economic sector or in the same region
geographical, or arising from the same activity or merchandise, or of the application
of credit risk reduction techniques, particularly of the risk associated with
major indirect risks, is treated and controlled, specifically by means of
defined policies and procedures in writing.
Article 115-Q
Risk of securitisation
1-The risks arising from the securitisation transactions in respect of which the
credit institutions are investor-owned, ceding or sponsor,
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including reputational risks, namely those emerging in the context
of complex structures or products, are the object of evaluation and treatment,
in accordance with appropriate policies and procedures, in order to ensure that
the economic reality of the operations is fully considered in the
assessment of risks and management decisions.
2-The ceding credit institutions of renewable securitisation operations,
for which a clause on reimbursement is consecrated
anticipated, dispose of liquidity plans that predict the repercussions
of the scheduled and anticipated reimbursements in the scope of those operations.
Article 115-R
Market risk
1-Credit institutions establish and implement policies and processes
of identification, evaluation and management of all sources and significant effects
of the market risks.
2-Credit institutions adopt measures that accrate the risk of lack of
liquidity of the instruments when the maturity of a position
short preceding that of the long position.
3-Credit institutions must have adequate internal capital to the
significant market risks that are not subject to a requirement of
own funds.
4-Credit institutions must also have an internal capital
appropriate to market risks to:
a) When calculating the requirements of own funds for positions at risk,
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in the terms of Articles 326 to 350 of the Regulation (EU)
No. 575/2013, of the European Parliament and of the Council, of June 26
of 2013, and should they compensate for their positions in one or more titles of
capital that constitute an index of shares with one or more positions
in futures contracts on an index of stocks or other
instrument derived from that index, cover the base risk of losses
resulting from the eventual difference between the evolution of the value of that
futures contract or of that other derivative instrument and that of the
capital securities that constitute that index;
b) Inverse positions in futures contracts on stock indexes whose
term of maturity or composition are not identical;
c) Coverage of the risk of loss that exists between the date of the appointment
of the firm outlet and the following working day, in the case of the firm outlet of
instruments of debt and capital securities in which the institution of
credit apply, for calculation of the requirements of own funds, the
Article 345 of Regulation (EU) No 575/2013 of Parliament
European and the Council of June 26, 2013.
Article 115-S
Interest rate risk resulting from activities not included in the trading portfolio
Credit institutions implement systems to identify, evaluate and manage
the risk that results from an eventual change in the susceptible interest rates of
affect the activities excluded from your trading portfolio.
Article 115-T
Operational risk
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1-Credit institutions establish and implement policies and
procedures for assessing and managing the operational risk to which they are found
subject, to be able to define the respect notion of operational risk,
including events of reduced frequency but of great impact.
2-Credit institutions implement contingency and de-contingency plans
business continuity that ensure their ability to operate in a
continuous basis and to contain losses if a serious disturbance occurs
of the respectful activity.
Article 115-U
Risk of liquidity
1-Credit institutions must have strategies, policies,
robust procedures and systems to identify, measure, manage and
monitoring the liquidity risk having by reference a set of
appropriate time horizons, including intraday, in a way
ensure that they maintain adequate levels of liquidity.
2-For the purposes of the provisions of the preceding paragraph, the strategies, policies,
procedures and systems must:
a) Be designed to the extent of the business areas, currencies, branches and
entities and include appropriate mechanisms of cost sharing,
benefits and risks concerning liquidity;
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b) Be proportional to the complexity, the risk profile, the type of
operation and risk tolerance defined by the board of directors
of the credit institution;
c) Reflect the importance of the credit institution in each state-
Member of the European Union in which it carries out its activity.
3-Credit institutions communicate to all areas of business
deemed relevant to tolerance to defined risk.
4-Credit institutions shall, taking into account the nature, scale and
complexity of your activities, adopt a liquidity risk profile
suitable for the proper functioning and soundness of your system.
5-In the definition and implementation of the strategies, policies, procedures and
systems referred to in the previous numbers the credit institutions must,
in particular:
a) Develop methodologies to identify, measure, manage and monitor
your funding, which cover cash flows
significant, current and predicted, in the assets, liabilities, elements
extrapatrimonals, including contingent liabilities, and of them
arising, and the potential impact of reputational risk;
b) Discriminate against burdensome assets and assets free of burden or charges
available at any time, especially in situations of
emergency, while still ensuring the identification of the entity that holds
the assets, the country in which the assets are registered or
deposited and their availability, controlling the way in which the
assets can be mobilized in good time;
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c) Consider the legal, regulatory and operational limitations concerning
to potential transfers of liquidity and free assets of burden or
charges between entities, in and out of the Economic Area
European;
d) Consider different instruments for reducing liquidity risk,
including a system of limits and liquidity reserves, which allows
respond to adverse conditions that come to be identified;
e) Have a financing structure properly
diversified and access to sources of funding, owing these
mechanisms to be reviewed periodically;
f) Consider, at least annually, alternative scenarios on the
position of liquidity and risk reduction factors and examine the
principles underlying decisions regarding financing, owing
such alternative scenarios include, inter alia, elements
extrapatrimonals and contingent liabilities, including those of the entities
with specific object of securitisation or other entities with object
specific as provided for in Regulation (EU) No 575/2013, of the
European Parliament and of the Council of June 26, 2013 on
relation to which the credit institution attests as a sponsor or to the
which pay significant liquidity support;
g) Consider the potential impact of alternative scenarios
idiosyncratic, market, and combination of alternative scenarios,
listening to various time horizons and multiple levels of
adverse conditions;
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h) To adjust your strategies, internal policies and limits of the risk of
liquidity, where this is necessary in the light of the analysis of the
alternative scenarios provided for in the f ) and g ).
6-Credit institutions draw up liquidity contingency plans, the
which are submitted to the approval of the governing body.
7-The liquidity contingency plans shall:
a) Define appropriate strategies and appropriate enforcement measures
to deal with possible liquidity deficits, including in relation to
branches established in other Member States of the Union
European;
b) Consider the alternative scenarios provided for in points g ) and h ) from the
n. 5;
c) Be object of tests, at least annually, and update with
basis in the results of the alternative scenarios provided for in the ( g ) and
h ) of paragraph 5.
8-The policies and procedures provided for in paragraphs 1 and 2 shall be adjusted to the
updates of the liquidity contingency plans that come to be
performed under the terms of the ( c ) of the previous number.
9-Credit institutions must take the measures in advance
operational necessary to ensure that the contingency plans of
liquidity can be immediately implemented, namely:
a) The entitlement of assets of immediately eligible guarantees to
financing by the central bank;
b) If necessary, the entitlement of guarantee assets in the currencies of another
Member State of the European Union or of a third country in which the
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credit institution has positions at risk;
c) If necessary from the operational point of view, the entitlement of assets of
warranty on the territory of a host Member State or
a country third to whose currency has a position at risk.
10-Compete to the Bank of Portugal in the framework of monitoring the risk of
liquidity of credit institutions:
a) Check the evolution of liquidity risk profiles, specifically the
conceit and the volume of products, risk management, policies of
funding and the concentrations of funding;
b) Take the necessary measures, should it verify that the evolution of the
liquidity risk profiles, indicated in the previous subparagraph, may generate
instability in a credit institution or systemic instability;
c) Informing the European Banking Authority of the measures adopted in the
terms of the previous paragraph.
Article 115-V
Risk of excessive leverage
1-Credit institutions dispose of policies and procedures for
identify, manage and control the risk of excessive leverage.
2-The risk indicators of excessive leverage include the ratio of
leveraging determined in the terms of applicable regulation and the
dephasing between assets and obligations.
3-Credit institutions deal prudently with the risk of leverage
excessive, considering their potential increases resulting from
reductions in the own funds of the credit institution and the capacity of
respond to adverse situations.
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Article 115-W
Comparative analysis of internal methods of calculating the requirements of own funds
1-Credit institutions authorised to use internal methods for the
calculation of the amounts of risk-weighted positions or requirements
of own funds, except for operational risk, communicate
annually to the Bank of Portugal the results of the calculations of its
internal methods for the positions at risk or positions included in
reference portfolios specified under Rule 78 (8) of the
Directive No 2013 /36/UE, of the European Parliament and of the Council, of 26 of
June 2013, together with an explanation of the methodologies
used for those effects.
2-The results referred to in the preceding paragraph are also communicated to the
European Banking Authority, according to model to be elaborating by the
same.
3-In the case of the Bank of Portugal to specify separate reference portfolios
of those mentioned in paragraph 1, you should consult with the European Banking Authority and
ensure that credit institutions communicate the results of the
calculations to which to rent that number separately for the portfolios of
reference specified under Article 78 (8) of the Directive No
2013 /36/UE, of the European Parliament and of the Council, of June 26 of
2013, and by the Bank of Portugal.
4-Based on the information presented by the credit institutions in the
terms of paragraph 1, the Bank of Portugal monitors the cast of amounts of the
risk-weighted positions or the requirements of own funds,
depending on the case, except for operational risk, for the positions at risk
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or transactions included in the reference portfolio arising from the application
of the internal methods of each credit institution.
5-The Bank of Portugal annually evaluates the quality of the applied methods
by credit institutions, analyzing, in particular:
a) The methods that evidences significant differences of requirements of
own funds for the same position at risk;
b) The methods in which a diversity especially occurs
high or reduced, and also a significant underestimation and
systematic of own fund requirements.
6-It is up to the Bank of Portugal, in the case of some credit institutions
diverge significantly from most credit institutions or in the
a lack of uniformity of the methods that leads to a wide variation of the
results, investigate the causes of this fact and, if it is possible to determine with
rigor that the method of the credit institution leads to an underestimation of the
own funds requirements that cannot be attributed to differences of the
underlying risks of the positions at risk or positions, adopt the measures
corrective corrections that prove to be suitable.
7-In the terms of the preceding paragraph, the Bank of Portugal ensures that the
corrective measures to be adopted maintain the objectives of an internal method and
that:
a) They do not lead to a normalization or preferred methods;
b) Do not create wrong incentives; or
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c) They do not encourage other institutions to adopt identical methods.
Article 116-H
Participation of infractions to the Bank of Portugal
1-Any person who has knowledge of serious evidence of infractions to
duties provided for in this scheme or in Regulation (EU)
n 575/2013, of the European Parliament and of the Council, of June 26 of
2013, you can make a stake to the Bank of Portugal.
2-It is guaranteed the protection of the personal data of the whistleblower and the suspect
practice of the infraction.
3-It is also guaranteed confidentiality about the identity of the
whistleblower at all time or up to the time that this information
is required to safeguard the rights of defence of those targeted by the
denunciation, in the context of the investigations to which it gives way or of
subsequent judicial proceedings.
4-The holdings taken under the previous figures may not,
on its own, serve as a foundation for the establishment by the credit institution of
any disciplinary, civil or criminal procedure with respect to the author
of the participation, except if the same are deliberated and manifestly
unfounded.
5-The Bank of Portugal may approve the necessary regulation for
ensure the implementation of the guarantees provided for in the preceding paragraphs.
Article 116-I
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Plan of supervisory activities
1-The Bank of Portugal adopts, at least annually, a plan of
supervision activities for the credit institutions, which it has in
consideration of the process of analysis and evaluation provided for in Article 116, and
includes:
a) The indication of how it intends to carry out its tasks and
affect your resources;
b) The identification of the credit institutions that are to be the subject of
enhanced supervision and the measures taken for such supervision
in the terms of paragraph 3;
c) A plan for the inspections at the premises of the institutions of
credit, including from the respected branches and established subsidiaries
in other Member States of the European Union.
2-The plan of supervisory activities should cover credit institutions
that:
a) Present results of the respects tests effort to which if
refer to the points a ) and g ) of Article 116 (1)-B and Article 116-J,
or results of the process of analysis and evaluation under the article
116.-A, which indicate significant risks to its soundness
financial or infractions to the provisions set out in this regime and
of Regulation (EU) No 575/2013, of the European Parliament and of the
Council, of June 26, 2013;
b) They represent systemic risks to the financial system;
c) The Bank of Portugal considers it necessary to include.
3-Should it be considered appropriate under Article 116, it shall be taken,
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in particular, the following measures:
a) Increase in the number or frequency of inspections in loco from the
credit institution;
b) Permanent presence of the Bank of Portugal at the credit institution;
c) Reporting of additional or more frequent information on the part of
credit institution;
d) Additional or more frequent review of operational plans,
strategic or business of the credit institution;
e) Thematic inspections for control of specific hazards of occurrence
likely.
4-A The adoption of a plan of supervisory activities by the Bank of Portugal
shall not prevent the competent authorities of the Member States from
Reception proceed, on a case-by-case basis, to checks and inspections in
loco of the activities carried out by the branches of the credit institutions with
registered in Portugal.
Article 116-J
Tests of effort
1-The Bank of Portugal effectuates, with adequate periodicity, and by the
less annually, effort tests to credit institutions, to facilitate
the process of analysis and evaluation under the terms of Article 116.
2-The results of the effort tests can be the subject of publication.
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Article 116-K
Continuous review of the authorisation for use of internal methods
1-The Bank of Portugal reviews regularly, and at least every three in three years,
the fulfilment by the credit institutions of the requirements concerning the
methods that require your authorization prior to your use for the
calculation of own fund requirements according to regulation
applicable.
2-For the purposes of the provisions of the preceding paragraph, the Bank of Portugal has in
consideration, in particular, the changes in the activity of the institutions of
credit and the application of these methods to new products.
3-Whenever significant deficiencies are identified in the catchment of the
risks by an internal method of a credit institution, the Bank of
Portugal must ensure that such deficiencies are remedied, or take the
appropriate measures to mitigate its consequences, notably
imposing multiplication factors or requirements of own funds more
high, or by adopting other appropriate and effective measures.
4-The Bank of Portugal reviews and evaluates particularly if the institution of
credit utilizes well-developed and up-to-date techniques and practices for these
methods.
5-Case, in respect of an internal market risk model, a number
high of excesses referred to in the applicable regulations indicate that
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the model is not accurate enough, the Bank of Portugal revokes the
authorisation to use the internal model or impose appropriate measures
to ensure that the model is quickly perfected.
6-Should a credit institution have obtained authorization to apply a
method for the calculation of the own funds requirements that requires the
prior authorization from the Bank of Portugal, in accordance with the regulations
applicable, but cede to comply with the requirements for the application of that method,
the Bank of Portugal should require the institution to show that it does not
compliance has an irrelevant effect, or alternatively present a
plan to re-establish timely compliance with the requirements and
set a deadline for its implementation, and it should require improvements of that plan
case it is unlikely that the same will come to provide full
compliance or case the deadline is not appropriate.
7-If the credit institution is not likely to be able to restore the
compliance within an appropriate time frame and, if it is the case, the institution
of credit has not been satisfactorily demonstrated that the non
compliance has an irrelevant effect, the authorization to use the
method is revoked or limited to complying areas or where the
compliance can be obtained within an appropriate time frame.
8-The Bank of Portugal should take into consideration guidelines from the Authority
Relevant European Banking for the purposes of the review of authorisations in the
terms of the previous numbers.
9-The Bank of Portugal encourages credit institutions, having in
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consideration of its dimension, internal organisation and nature, scale and
complexity of its activities:
a) To develop internal assessment capabilities of credit risk and the
increment the use of the method based on internal notations
for the calculation of the own funds requirements for coverage of the
credit risk, given the relevance in absolute terms of its
positions at risk and the existence of a high number of
significant counterparties, and without prejudice to compliance with the
criteria set out in Articles 102 to 106 of the Regulation (EU)
No. 575/2013, of the European Parliament and of the Council, of June 26
of 2013, pertaining to the requirements for the trading portfolio;
b) Who hold positions at specific risk that are significant
in absolute terms and when there is a high number of positions
significant in debt instruments of different issuers, the
develop internal risk assessment capabilities and increment
the use of internal models for the calculation of the requirements of
own funds for specific risk of debt instruments in the
trading portfolio, together with internal models for the
calculation of own fund requirements for risks of
default and migration, without prejudice to compliance with the
criteria set out in Articles 362 to 377 of the Regulation (EU)
No. 575/2013, of the European Parliament and of the Council, of June 26
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of 2013, relating to the use of internal models for calculation of
own fund requirements for market risk.
10-The Bank of Portugal, listening to the nature, scale and complexity of the
activities of the credit institutions, monitor whether these do not depend
unique and systematically from external risk ratings to evaluate the
creditworthiness of an entity or financial instrument.
Article 116-L
Application of supervisory measures to credit institutions with risk profiles
similar
1-Should the Bank of Portugal determine, in accordance with Article 116, that
credit institutions with similar risk profiles, specifically
with business models or similar geographical location of your
positions at risk, are or may come to be exposed to similar risks
or pose risks to the financial system, may apply the process of analysis
and evaluation referred to in that article to such credit institutions of
similar or identical mode.
2-For the purposes of the provisions of the preceding paragraph, the Bank of Portugal may
impose on these credit institutions requirements that discipline their
activity in a similar or identical way, namely, the exercise of the
supervisory powers set out in Articles 116-C, 116.-M and 116 .º-N.
3-The credit institutions to which the previous figures refer may be
determined, inter alia, in accordance with the criteria to which the
point ( j ) of Article 116 (1)-B.
4-The Bank of Portugal notifies the European Banking Authority whenever it
apply the provisions of the previous figures.
Article 116-M
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Specific liquidity requirements
1-For the purposes of determining the appropriate level of liquidity requirements
on the basis of the analysis and evaluation carried out pursuant to this section, the Bank
of Portugal assesses the need to impose a specific requirement of
liquidity to capture the liquidity risks to which the credit institution is
or it may come to be exposed, considering:
a) The respect model of business;
b) The provisions, processes and mechanisms of the institution of
credit as referred to in Article 115-U;
c) The results of the analysis and evaluation carried out in the terms of the article
116.
d) The systemic risk of liquidity that threatens the integrity of the system
national financial and, where applicable, of the Member State of the Union
European in question.
2-The Bank of Portugal should consider the need to apply sanctions or
other administrative measures, particularly prudential requirements, the
level is in general related to the disparity between the actual position of
liquidity of the credit institution and the liquidity and regulatory requirements
stable funding established at the national level or the European Union.
Article 116-N
Specific publication requirements
1-The Bank of Portugal may establish, by regulation, that the
credit institutions:
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a) Publish the information referred to in Articles 431 to 455 of the
Regulation (EU) No 575/2013, of the European Parliament and of the
Council, of June 26, 2013, at intervals less than one year,
setting the respective deadlines for publication;
b) Use specific media and local media for publication
of information, except through the financial statements.
2-The Bank of Portugal may require the parent companies to publish
annually, either in full form or by remission for information
equivalents, a description of their legal and government structure of
society and the organizational structure of the group.
Article 116-The
Consistency of reviews, evaluations and supervisory measures
The Bank of Portugal informs the European Banking Authority about:
a) The operation of your planned analysis and evaluation process in the
article 116-The;
b) The methodology used as the basis of the decisions to which the
articles 116-B, 116.-C, 116.-J, 116.-K and 116.-M on the process
referred to in the previous paragraph.
Article 121-The
Branches of third countries
1-Branches of credit institutions with registered office in third countries
authorized to perform activity in Portugal are subject to supervision
prudential of the Bank of Portugal applying to them, with the necessary
adaptations, the regime of authorized credit institutions in Portugal.
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2-The Bank of Portugal may issue regulations with a view to the application of the
provisions of the previous number.
Article 129-The
Level of application of the self-assessment process of the suitability of the internal capital
1-Credit institutions meet the obligations laid down in Article 115-J
on individual basis, except those that are subsidiaries in Portugal, parent companies
or credit institutions included in the supervision on consolidated basis.
2-When the Bank of Portugal dispense with the application of the fund requirements
own on consolidated basis pursuant to Article 15 of the Regulation
(EU) No 575/2013, of the European Parliament and of the Council, of June 26
of 2013, the obligations laid down in Article 115-J are applicable on the basis of
individual.
3-The credit institutions-mother in Portugal meet the obligations
provided for in Article 115-J on consolidated basis.
4-Credit institutions controlled by a financial company-parent company
or by a mixed financial company-mother based in Portugal or in
another Member State of the European Union, in the latter case when the
competence for supervision on a consolidated basis to be assigned to the Bank
of Portugal, fulfil the obligations laid down in Article 115-J on the basis of
consolidated situation of these financial companies-mother or company
mixed financial-mother.
5-When various credit institutions are controlled by a
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financial company parent or mixed financial companion-mother in
Portugal, the provisions of the preceding paragraph shall apply only to the institutions of
credit subject to supervision on a consolidated basis, exercised by the Bank of
Portugal.
6-The provisions of this Article shall apply on a subconsolidated basis to the
credit institutions that are subsidiaries, should these credit institutions or
the parent company's respect, when it comes to a financial company-
mother or a mixed financial company-mother, have an institution of
credit, an investment company, a financial institution or a
fund manager of investment funds, in the actment of the n. 6
of Article 199-A, as a subsidiary in a third country, or in it detain a
participation.
Article 129-B
Application in risk and process treatment and supervisory measures
1-Credit institutions meet the obligations provided for in Chapter II-C
of Title VII and in paragraphs 9 and 10 of Article 116-K, on an individual basis, save
dispensation by the Bank of Portugal from the application of prudential requirements in
individual basis, pursuant to Article 7 of the Regulation (EU)
n 575/2013, of the European Parliament and of the Council, of June 26 of
2013.
2-Credit institutions, financial companies and companies
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mixed financial years subject to the supervision of the Bank of Portugal that are
companies-parent or subsidiaries, apply the provisions of the previous number on the basis
consolidated or subconsolidated, depending on applicable.
3-The parent companies and subsidiaries referred to in the preceding paragraph shall apply the
obligations identified in paragraph 1 to its subsidiaries that are not covered
by the present regime, ensuring that they provide the information
relevant on the fulfillment of those same obligations, unless the filings
are from a third country in which the fulfilment of these obligations constitutes
a violation of the legislation of that country.
4-The obligations set out in Articles 116, 116.-A to 116.-C and 116.
116.-The are complied with, on an individual or consolidated basis, in the terms of the
articles 6 to 88 of the Regulation (EU) No 575/2013 of Parliament
European and the Council of June 26, 2013.
5-When the Bank of Portugal waive the application of the fund requirements
own on consolidated basis provided for groups of companies of
investment in Article 15 of Regulation (EU) No 575/2013, of the
European Parliament and of the Council of June 26, 2013, the obligations
provided for in Article 116-A apply to investment firms on the basis of
individual.
Article 133-The
Supervision of joint financial companies
1-When a mixed financial company is the subject of provisions
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equivalent under this scheme and the Decree-Law No 145/2006,
of July 31, as amended by Decree-Law No. 18/2013 of February 6,
on the supervision of financial conglomerates, specifically in
supervisory terms as a function of the risk, the Bank of Portugal may, after
consultation with the other competent authorities responsible for supervision
of the subsidiaries, apply only the scheme of the Decree-Law No. 145/2006, of 31 of
July, as amended by Decree-Law No. 18/2013 of February 6, to that
mixed financial company.
2-When a mixed financial company is the subject of provisions
equivalent under this scheme and Directive No 2009 /138/CE,
of the European Parliament and of the Council of November 25, 2009,
specifically in terms of supervision in function of the risk, the authority
responsible for the supervision on consolidated basis can, according to the
group supervisor in the insurance industry, apply to that company
mixed financial only the provisions of this regime relating to the sector
most significant financial, at the acettion of the point i ) of the paragraph b ) of paragraph 2 of the
article 3 of the Decree-Law No. 145/2006 of July 31, as amended by the
Decree-Law No. 18/2013 of February 6.
3-The Bank of Portugal informs the European Banking Authority and the
European Insurance and Occupational Pensions Authority
of the decisions taken under paragraphs 1 and 2.
Article 138-The
Competent authority
1-The Bank of Portugal is the competent authority to apply:
a) The requirements for the reserves of specified own funds
in sections III to V of this title;
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b) The dispensation referred to in Article 138 (2) of the Article-C;
c) The provisions of Article 458 of Regulation (EU) No 575/2013 of the
European Parliament and of the Council of June 26, 2013.
2-For the purposes of the provisions of the preceding paragraph, the Bank of Portugal acts on
function of national macroprudential authority under the terms of the ( c ) from the
article 12 of Law No 5/98 of January 31, amended by the Decrees-Laws
n. ºs 118/2001, April 17, 50/2004, March 10, 39/2007, 20 of
February, 31-A/2012, of February 10, and 142/2013, of October 18, and
of Article 2 of the Decree-Law No 228/2000 of September 23, amended
by the Decrees-Leis n. ºs 211-A/2008, of November 3, and 143/2013, of 18
of October.
Article 138-B
Definitions relating to own fund reserves
1-For the purposes of the provisions of this Title, it is understood by reservations of
own funds as follows:
a) "Conservation Reserve", the own funds required by a
credit institution under the terms of Article 138-D;
b) "Specific contracyclical reservation of the credit institution", the funds
own required to a credit institution under the terms of the article
138.-And;
c) "Reservation for institutions of global systemic importance" or
"Reservation of G-SII", the own funds required under the terms of the n.
1 and 2 of Article 138-P;
d) "Reservation for other institutions of systemic importance" or
"Reservation of O-SII", the own funds that may be required in the
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terms of Article 138 (1)-R;
e) "Reservation for systemic risk", the own funds that may be
required to a credit institution under the terms of Articles 138-U
at 138 º-Y.
2-For the purposes of the provisions of this Title, they shall, as yet, be understood by:
a) "Institution of systemic importance" or "O-SII", an institution of
credit, a crediting institution-mother in the European Union or in
Portugal, a financial company-parent company in the European Union or in
Portugal, a mixed financial company-mother in the European Union or
in Portugal, whose insolvency or financial imbalance can give
source at a systemic risk and that as such has been identified
in the terms of Article 138-Q;
b) "Institution of global systemic importance" or "G-SII", a
Crédito-mother institution in the European Union, a company
financial-parent in the European Union or a financial company
mixed-mother in the European Union, whose insolvency or imbalance
financial can give rise to a global systemic risk and that as such
has been identified under the terms of Article 138-N;
c) "Total amount of positions at risk", the total amount of the positions
at risk calculated in accordance with Article 92 (3) of the Regulation
(EU) No 575/2013, of the European Parliament and of the Council, of 26 of
June 2013;
d) "Percentage of contracyclical reserve", the percentage that the
credit institutions have to apply to calculate the reserve
specific contracyclical of the credit institution, determined in the
terms of the Articles 138-F to 138.-J or by an authority
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competent of a third country, as the case may be;
e) " Percentage of the specific contracyclical reserve of the institution of
credit ", the percentage calculated in accordance with paragraph 1 of the article
138.-L;
f) "reservation referral", the reference percentage of the reservation
contraception calculated in accordance with Article 138-F;
g) "Combined requirement of reserves", the total amount of funds
top level 1 required to comply with the requirement of
conservation reserve, increased, as the case may be, from:
i) Specific contracyclical reservation of the credit institution;
ii) Reservation of G-SII;
iii) Reservation of O-SII; and
iv) Reservation for systemic risk.
Article 138-C
Scope of application
1-The provisions of this Title shall not apply to investment firms
who do not find themselves allowed to provide the services and activities of
trading investment on its own and from firm outlet or
allotment with guarantee of financial instruments, in the acea,
respects, from the points c ) and f ) of point 1 of Article 199, para.
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in particular the investment companies referred to in points b ) a d ) from the
article 4.º-A.
2-The Bank of Portugal can dispense, grounded, the companies of
investment to which this title applies and which are considered
small and medium-sized enterprises pursuant to Recommendation
n. 2003 /361/CE of the European Commission of May 6, 2003, of the
compliance with the requirements set out in Articles 138-D and 138.-And,
provided that such dispensation does not constitute a threat to the stability of the
national financial system.
3-The Bank of Portugal communicates the ruling dispensation to the European Commission,
to the European Systemic Risk Committee, the European Banking Authority and
to the competent authorities of the Member States concerned.
Article 138-D
Reserve of conservation
1-Credit institutions maintain a reserve of conservation constituted
by main own funds of level 1 of 2.5% of the total amount of the
positions at risk, on an individual and consolidated basis, as applicable.
2-A reserve of own funds required under the terms of the preceding paragraph
cumulative with the requirements laid down in Article 92 of the Regulation (EU)
n 575/2013, of the European Parliament and of the Council, of June 26 of
2013, and the requirements imposed under the terms of the a ) of the Article 2 (2)
116 .ºC-C.
3-Failure to comply with the provisions of paragraph 1 subject to credit institutions to
restrictions set out in paragraphs 2 a to 4 of Article 138-AA.
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Article 138-And
Contracyclical reservation
1-Credit institutions maintain a specific contracyclical reserve of the
credit institution, consisting of main own funds of level 1,
on individual and consolidated basis, as applicable, equivalent to the
total amount of the positions at risk multiplied by the percentage of the
counter-cyclical reserve calculated in the terms of Articles 138-L and 138.-M.
2-A reserve of own funds required under the terms of the preceding paragraph
cumulative with the requirements laid down in Article 92 of the Regulation (EU)
n 575/2013, of the European Parliament and of the Council, of June 26 of
2013 and in Article 138-D and the requirements imposed under the terms of paragraph a ) from the
n. 2 of Article 116-C.
3-Failure to comply with the provisions of paragraph 1 subject to credit institutions to
restrictions set out in paragraphs 2 a to 4 of Article 138-AA.
Article 138-F
Reservation referential
1-The Bank of Portugal calculates, for each quarter, the booking referral
which serves as a basis for the determination of the percentage of the contracyclical reserve
in the terms of paragraph 1 of the following article.
2-In the determination of the reservation referral the Bank of Portugal shall
observe the following principles:
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a) Properly reflect the credit cycle and the resulting risks
of excessive credit growth in Portugal;
b) To consider the specificities of the national economy;
c) Be based on the deviation of the credit ratio in relation to the product
gross domestic with respect to its long-term trend, having in
consideration, namely:
i) An indicator of the growth of credit levels in
Portugal and, in particular, an indicator that reflects the changes
in the ratio of credit granted in Portugal in relation to the
gross domestic product;
ii) The general guidelines issued by the European Risk Committee
Systemic concerning the measurement and calculation of the deviation of the
long term trends of credit ratios in relation to the
gross domestic product and the calculation of the booking benchmarks.
Article 138-G
Determination of the percentage of contracyclical reserve
1-The Bank of Portugal assesses and determines quarterly the percentage of
counter-cyclical reserve for Portugal, considering, for the purpose, the following
elements:
a) The reservation benchmark calculated in the terms of the previous article;
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b) The guidelines in force issued by the European Risk Committee
Systemic about:
i) The principles designed to guide the designated authorities in the
assessment of the percentage of appropriate contracyclical reserve, the
ensure that they adopt a robust approach to the assessment
of the relevant macroeconomic cycles and to promote the taking
of sound and consistent decisions in the various Member States of the
European Union;
ii) The variables that indicate the existence of a systemic risk
associated with periods of excessive credit growth in the
financial system, namely the relevant credit ratio
in relation to the gross domestic product and its deviation from
to the long-term trend, and about other relevant factors,
including the treatment of economic developments occurring in
each of the economic sectors in which they should be based
decisions on the percentage of appropriate contracyclical reservation;
iii) The variables, including qualitative criteria, concerning the
indication of the maintenance, reduction or cancellation of the reservation
countercyclical;
c) Any other elements that the Bank of Portugal considers
relevant to cope with the cyclic systemic risk.
2-A The percentage of the contracyclical reserve is determined between 0% and 2.5% of the
total amount of the positions at risk in Portugal, at intervals of 0.25%,
or multiples of this last value.
3-In case it is justified, and considering the elements referred to in paragraph 1, the Bank
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of Portugal may determine a percentage of contracyclical reserve
greater than 2.5% of the total amount of positions at risk.
Article 138-H
Deadline for application of the contracyclical reservation
1-When the Bank of Portugal determines, for the first time, the percentage
of counter-cyclical reserve above zero or, subsequently, to be increased, the
same is applicable for the purpose of calculation of the specific contracyclical reserve
of the credit institution 12 months after the date of the planned disclosure in the
next article, save if the Bank of Portugal determines that it is
applicable on a previous date, based on excecional circumstances
duly substantiated.
2-In the event of a reduction in the percentage of the contracyclical reserve in force, the
Bank of Portugal also informs about the indicative period during the
which is not expectable an increase in the percentage of the contracyclical reserve.
Article 138-I
Disclosures relating to the contracyclical reservation
1-The Bank of Portugal quarterly releases the percentage of reservation
countercyclical through the respect of publication on its website,
including, specifically, the following elements:
a) The percentage of applicable contracyclical reserve;
b) The ratio of credit granted in relation to gross domestic product
relevant and its deviation from the long term trend;
c) The reservation benchmark calculated in accordance with Article 138-F;
d) The justification of the determination of the percentage of reservation
countercyclical;
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e) In the event of an increase in the percentage of the contracyclical reserve, the
indication of the date from which the same is applicable to the institutions
of credit for the purposes of calculating the specific countercyclical reserve of the
credit institution;
f) Should the date set out in the preceding paragraph be lower than the period 12
months after the date of the expected disclosure in this number, the reference to
excective circumstances that substantiate the reduction of that time limit;
g) In the event of a reduction in the percentage of the contracyclical reserve, the
mention of the indicative period during which it is not expectable a
increase in the percentage of the contracyclical reserve, as well as the
respects statement of reasons.
2-The Bank of Portugal adopts all reasonable measures to coordinate the
date of the disclosure referred to in the previous number with the authorities
designated from the remaining Member States of the European Union.
3-The Bank of Portugal communicates to the European Systemic Risk Committee the
quarterly decisions regarding the determination of the percentage of reservation
countercyclical and the information indicated in paragraph 1.
Article 138-J
Recognition of the percentage of contracyclical reserve
1-The Bank of Portugal may recognize a reserve percentage
counter-cyclical higher than 2.5% of the total amount of the positions at risk,
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established by a designated authority in a Member State of the Union
European responsible for the determination of that percentage or by a
competent authority of a third country with that responsibility, to
effects of calculation of the specific contracyclical reserve of the institution of
credit.
2-For the purposes of the provisions of the preceding paragraph, the recognition of the
percentage of counter-cyclical reserve greater than 2.5% of the total amount of the
positions at risk is disseminated by the Bank of Portugal on its website
Internet, including, specifically, the following elements:
a) The percentage of applicable contracyclical reserve;
b) The Member State of the European Union or country third party to which the same
apply;
c) In the event of an increase in the percentage of the contracyclical reserve, the
indication of the date from which the new value is applicable;
d) Should the date set out in the preceding paragraph be lower than the period 12
months after the date of the expected disclosure in this number, the reference to
excecional circumstances that substantiate the reduction of that time limit.
Article 138-K
Decision on percentages of countercyclical reserve of third countries
1-The Bank of Portugal may determine the
percentage of contracyclical reservation applicable to credit institutions for
effects of the calculation of the specific counter-specific contraceptive reserve
to the positions at risk over a third country in the case of the authority
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competent from that third country:
a) Do not determine and disclose a percentage of
countercyclical reserve applicable to that country;
b) Determine and disclose a percentage of reservation
Contracyclic applicable to that country, but the Bank of Portugal has
reasonable grounds to consider that the same is not sufficient for
protect in an appropriate way credit institutions from the risks of
excessive credit growth in that country, in which case
determines and disseminates a different percentage.
2-For the purposes of the b ) of the previous number, the
Bank of Portugal unable to fix a percentage of contracyclical reserve
lower than the level set by the competent authority of the third country, except
if that percentage of the reserve exceeds 2.5% of the total amount of the
positions at risk of credit institutions with positions at risk in that
third country.
3-When, in fulfillment of the provisions of the
previous figures, the Bank of Portugal increases the percentage of reservation
counter-cyclical, the same is applicable for the purpose of calculating the reserve
specific contraception of the credit institution 12 months after the date of the
disclosure provided for in the following number, save if the Bank of Portugal
determine that the same is applicable at a previous date, based on
properly substantiated excecional circumstances.
4-The Bank of Portugal releases all percentages
of countercyclical reserve determined for third countries pursuant to this
article on its website, including, specifically, the following
elements:
a) The percentage of the contracyclical reserve and the third country to which it is
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applicable;
b) The justification of the determination of the percentage of reservation
countercyclical;
c) If the percentage of the contracyclical reserve is determined, by the
first time, above zero or, subsequently, is increased, the
indication of the date from which the same is applicable to the institutions
of credit for the purposes of calculating the specific countercyclical reserve of the
credit institution;
d) Should the date set out in the preceding paragraph be lower than the period 12
months after the date of the expected disclosure in this number, the reference to
excecional circumstances that substantiate the reduction of that time limit.
Article 138-L
Calculation of the percentage of the specific contracyclical reserve of the credit institution
1-A percentage of the specific contracyclical reservation of the credit institution
consists of the weighted average of the percentages of the contracyclical reserve that
are applicable in the legal ordinances in which the positions at risk of
relevant credit institution credit are situated, or that are
applied for the purposes of this article by virtue of paragraphs 1 and 2 of the preceding Article.
2-For the purpose of calculating the weighted average to which the number is referred
previous, credit institutions multiply each percentage of reserve
countercyclical applicable by the total of its own fund requirements for
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credit risk, calculated in the terms of headings II and IV of Part III of the
Regulation (EU) No 575/2013, of the European Parliament and of the Council,
of June 26, 2013, concerning the positions at risk of relevant credit
in the legal planning in question, divided by the total of its requirements
of own funds for credit risk pertaining to all of its positions
at risk of relevant credit.
3-Case a designated authority of a Member State of the European Union
or an authority of a third country set a reserve percentage
counter-cyclical exceeding 2.5% of the total amount of the positions at risk, it is
applied to the positions at relevant credit risk situated, respectively,
in that Member State of the European Union or in that third country,
notably, for the purpose of the calculation on a consolidated basis, the percentage
of contracyclical reservation provided for in the following number.
4-For the purposes of the provisions of the preceding paragraph, should the Bank of Portugal
has recognised the percentage of the contracyclical reservation under the
article 138-J, that percentage shall apply for the respective authority.
designated; otherwise, a percentage of reservation is applicable
counter-cyclical of 2.5% of the total amount of the positions at risk.
5-The positions at relevant credit risk include all risk classes,
except those mentioned in the points a ) a f ) of Article 112 of the Regulation
(EU) No 575/2013, of the European Parliament and of the Council, of June 26
of 2013, which are subject to:
a) To the requirements of own funds for credit risk provided for in the
title II of Part III of that Regulation;
b) If the position at risk is kept in the trading portfolio, the
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own fund requirements for specific risk foreseen in the
chapter 2 of Title IV of Part III of that Regulation or for
additional risks of default and migration planned in the
chapter 5 of Title IV of Part III of the Regulation;
c) If the position at risk is a securitisation, to the requirements of funds
own set out in Chapter 5 of Title II of Part III of the
Regulation.
6-Credit institutions must indicate the geographical location of the
positions at relevant credit risk.
Article 138-M
Date of application of the percentage of specific contracyclical reserve of the institution of
credit
1-In the event of an increase in the percentage of the determined contracyclical reserve
by the Bank of Portugal or by the designated authorities of other States-
Members of the European Union, the same is applicable as of the date released
by the Bank of Portugal or by those authorities on the respective sites of the
Internet.
2-In the event of an increase, the percentages of counter-cyclical reserve for countries
third parties are applicable 12 months after the date on which it was disclosed
a change in the percentage of that reservation by the authorities of the countries
third parties concerned, without prejudice to those authorities to demand that the
changes are applicable to established credit institutions in the
respects countries within a shorter time frame.
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3-For the purposes of the provisions of the preceding paragraph a change in the percentage
of the contracyclical reserve for a third country is considered to be disclosed
on the date on which it is published by the authority of the third country concerned, of
agreement with applicable national regulations.
4-Should the Bank of Portugal determine or recognize the percentage of
counter-cyclical reserve for a third country under the terms of Article 138-K or
of Article 138-J, resulting in an increase in the same, that percentage is
applicable as of the date indicated in the paragraph c ) of Article 138 (4)-K or
in the paragraph c ) of Article 138 (2)-J.
5-In the event of a reduction in the percentage of the contracyclical reserve, the same is
immediately applicable.
Article 138-N
Identification of G-SII
1-Compete to the Bank of Portugal to identify, on a consolidated basis, G-SII.
2-G-SII are identified according to a methodology based on the
following criteria:
a) Size of the group;
b) Interconetivity of the group with the financial system;
c) Possibility of replacement of services or infrastructure
financial provided by the group;
d) Complexity of the group;
e) Cross-border activity of the group.
3-For the purposes of the provisions of the preceding paragraph, the criteria are weighted
in the same way and consist of quantifiable indicators.
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4-A The methodology results in a global quantitative weighting for each
entity enumerated in the paragraph b ) of Article 138 (2)-B, to which it is
evaluated in order to allow to identify G-SII and affect them to one of the
subcategories provided for in the following article.
Article 138-The
Subcategories of G-SII
1-G-SII are affection to five subcategories that respect the following
criteria:
a) The lower bound and the boundaries between each two subcategories are
determined by the scores obtained through the methodology of
identification;
b) The boundary scores between adjacent subcategories are defined from
clear form and respect the principle according to which there is increase
linear constant of the systemic importance between each two
subcategories that results in a linear increase in the reservation of G-SII,
with the exception of the higher subcategory.
2-For the purposes of the previous number, the systemic importance reflects the impact
provided for in the world financial market in the event of difficulties of G-SII.
3-The Bank of Portugal may, grounded, in the exercise of its
powers of supervision, decide:
a) Reaffect a G-SII to a higher subcategory;
b) Re-affect an entity enumerated in the point b ) of the Article 2 (2)
138.-B that has a global score lower than the threshold score
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of the lower subcategory, to that same subcategory or to a
top subcategory, identifying it from that mode as G-SII.
4-A Decision taken pursuant to paragraph 4-A b ) of the previous number is communicated
to the European Banking Authority.
Article 138-P
Reservation of G-SII
1-Each G-SII maintains, on a consolidated basis, a reservation of G-SII
consisting of main own funds of level 1 corresponding to the
subcategory to which it is affects, according to the following:
a) In the lowest subcategory is required a reservation of 1% of the
total amount of the positions at risk;
b) Up to the fourth subcategory, including, the reserve of own funds
required for each subsequent subcategory increases in intervals of
0.5% of the total amount of positions at risk;
c) In the highest subcategory a reserve of funds is required
own of 3.5% of the total amount of the positions at risk.
2-A G-SII reserve required pursuant to the previous number is cumulative
with the requirements laid down in Article 92 of the Regulation (EU)
n 575/2013, of the European Parliament and of the Council, of June 26 of
2013, in Article 138-D and in Article 138-E, and with the requirements imposed
under the terms of the ( a ) of Article 116 (2)-C.
Article 138-Q
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Identification of O-SII
1-Compete to the Bank of Portugal to identify, as applicable, on the basis of
individual, underconsolidated or consolidated, the O-SII.
2-O-SII are identified according to an assessment based assessment, at least,
on one of the following criteria:
a) Dimension;
b) Importance for the economy of the European Union or national;
c) Importance of cross-border activities;
d) Interconnectedness of the credit institution or the group, as
applicable, with the financial system.
Article 138-R
Booking of O-SII
1-The Bank of Portugal may require the O-SII to maintain, on the basis of
consolidated, underconsolidated or individual, depending on applicable, a reservation
of O-SII constituted by main own funds of level 1 of up to 2% of the
total amount of the positions at risk, taking into account the criteria for the
identification of the O-SII.
2-Whenever it requires the maintenance of a reservation of O-SII, the Bank of
Portugal reviews this requirement annually and ensures that the same does not imply
disproportional adverse effects for all or part of the system
financial from other Member States, or of the European Union, which
constitute or create an obstacle to the operation of the internal market.
3-A O-SII reserve, should it be required under paragraph 1, is cumulative with
the requirements laid down in Article 92 of Regulation (EU) No 575/2013,
of the European Parliament and of the Council of June 26, 2013 in the article
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138.-D and in Article 138--E, and with the requirements imposed in the terms of
point ( a ) of Article 116 (2)-C.
Article 138-S
G-SII and O-SII reservation requirements contest
1-Without prejudice to the provisions of Article 138 (1)-R and Article 138-X, if
an O-SII is a subsidiary of a G-SII or an O-SII that is an institution
of crédito-mother in the European Union, a financial company in the
European Union or a mixed financial company-mother in the Union
European subject to a reservation of O-SII on consolidated basis, the reservation of
own funds applicable to O-SII subsidiary at individual or subconsolidated level
must be less than 1% of the total amount of the positions at risk or the
percentage of the reservation of G-SII or O-SII applicable to the group at level
consolidated, depending on the highest.
2-Should a group, on a consolidated basis, be subject to a reservation of G-SII
and a reservation of O-SII, is applicable the reserve of own funds more
high.
Article 138-T
Notification, review and disclosure relating to G-SII and O-SII
1-The Bank of Portugal notifies the European Commission, the European Committee of the
Systemic Risk and the European Banking Authority of the firm or
denomination of G-SII and O-SII and the subcategory to which it is affecting each
G-SII pursuant to Art. 138-O, and disseminates such information on the website of
Internet.
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2-The Bank of Portugal notifies the European Commission, the European Committee of the
Systemic Risk, the European Banking Authority and the authorities
competent and designated of the Member States concerned with a
in advance of one month regarding the publication of your decision to demand
the maintenance of a reservation of O-SII, and shall describe:
a) The grounds that substantiate the efficacy and proportionality of the
reserve of O-SII to mitigate the risk;
b) On the basis of the available information, the impact assessment
likely positive or negative from the O-SII reserve on the market
internal;
c) The percentage that you intend to determine for the O-SII booking.
3-The Bank of Portugal reviews annually the identification of G-SII and the O-
SII, pursuant to Articles 138-N and 138.-Q and the affectation of G-SII to the
respect subcategories, pursuant to Rule 138-O.
4-The Bank of Portugal communicates the result of the annual review referred to in the
previous number to G-SII and O-SII concerned, to the European Commission, to the
European Systemic Risk Committee and the European Banking Authority and
disseminates the updated information pursuant to paragraph 1.
Article 138-U
Reservation for systemic risk
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1-In such a way as to prevent or reduce systemic or macroprudential risks
non-cyclic long term not covered by the Regulation (EU)
n 575/2013, of the European Parliament and of the Council, of June 26 of
2013, which constitute a risk of disturbance of the financial system
susceptible to having serious negative consequences for the financial system and
the national economy, the Bank of Portugal can determine the institutions
of credit subject to your supervision, or to one or more subsets of these
institutions, the application of a reservation for systemic risk constituted by
key own funds of level 1, on an individual basis, subconsolidated and
consolidated.
2-When determined by the Bank of Portugal and without prejudice to the provisions
in the following articles, the reservation for systemic risk is at least 1% of the
positions at risk to which the reservation for systemic risk applies in the terms
of the following number.
3-A The reservation for systemic risk can be applied to the positions at risk
located in Portugal, in third countries and in other Member States of the
European Union, in the latter case without prejudice to the provisions of paragraph 3 of the
article 138-V and in paragraphs 1 and 3 of Article 138 .-W.
4-A The reservation for systemic risk is determined at adjustment intervals
gradual or accelerated of 0.5%, and may introduce different requirements
for different subsets of credit institutions.
5-By requiring the maintenance of a reservation for systemic risk, the Bank of
Portugal respects the following conditions:
a) Booking for systemic risk may not imply adverse effects
disproportionate to all or part of the system
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financial from other Member States, or of the European Union in the
their whole, which constitute or create an obstacle to the
operation of the internal market;
b) The reservation for systemic risk is reviewed at least biannually.
6-A The reserve of own funds required pursuant to paragraph 3 is cumulative with
the requirements laid down in Article 92 of Regulation (EU) No 575/2013,
of the European Parliament and of the Council of June 26, 2013 in the article
138.-D and in Article 138--E, and with the requirements imposed in the terms of
point ( a ) of Article 116 (2)-C.
7-Failure to comply with the provisions of paragraph 1 subject to credit institutions to
restrictions set out in paragraphs 2 a to 4 of Article 138-AA.
8-If the application of the restrictions referred to in the preceding paragraph shall lead to
an insufficient improvement of the main own funds of level 1 of the
credit institution, in light of the relevant systemic risk, the Bank of
Portugal may take supplementary measures, either in the terms of its
supervisory powers either by counterordinational procedures.
Article 138-V
Procedure of mere notification and of obtaining advice regarding the reservation for risk
systemic
1-Should the Bank of Portugal determine a percentage of reserve for risk
systemic of up to 3%, must notify, in advance of one month
with respect to the publication of the respect decision, the European Commission, the
European Systemic Risk Committee, the European Banking Authority, the
competent and designated authorities of the Member States concerned and
the supervisory authorities of the interested third countries.
2-In the notification the Bank of Portugal specifies:
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a) The systemic or macroprudential risk in Portugal;
b) The reasons for which the size of systemic risks and
macroprudential constitutes a threat to the stability of the
national financial system justifying the percentage of the reservation
for systemic risk;
c) The reasons why it considers the reservation for systemic risk
is effective and proportionate to mitigate the risk;
d) The assessment of the likely positive or negative impact of the reserve
for systemic risk on the domestic market, on the basis of
information at your disposal;
e) The reasons for which none of the constant measures of the
applicable legislation or regulations, with the exception of articles
458. and 459 of Regulation (EU) No 575/2013 of Parliament
European and Council, of June 26, 2013, isolated or
jointly, it is sufficient to cope with the risks
macroprudential or systemic identified, taking into account the
relative effectiveness of such measures;
f) The percentage of the reservation for systemic risk that it wants
impose.
3-When the Bank of Portugal determines the reservation for systemic risk up to the
limit of 3% pursuant to paragraph 1, it also indicates whether to determine it on the basis of
in positions at risk in other Member States of the European Union, if
where the said reservation is set at the same level for all positions
at risk located in the European Union.
4-The Bank of Portugal may, as of January 1, 2015, determine a
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percentage of reserve for systemic risk of up to 5%, following the
procedure provided for in paragraphs 1 and 2, applicable to the positions at risk situated
in Portugal and which may also be applicable to the positions at risk in
third countries.
5-Should the Bank of Portugal determine, in the terms of the preceding paragraph, a
percentage of reserve for systemic risk between 3% and 5%, must comply with the
following procedure:
a) The Bank of Portugal notifies the European Commission and awaits the
your opinion before adopting the measure in question, owing
substantiating case that opinion is negative and the Bank of
Portugal decides not to meet it;
b) Including in the set of credit institutions to whom the
requirement for tax in the terms of this article a subsidiary whose
parent company is established in another Member State of the Union
European, the Bank of Portugal:
i) Notifies the authorities of that Member State, the Commission
European and the European Systemic Risk Committee;
ii) Waits for the deadline of one month for the recommendation of the
European Commission and the European Systemic Risk Committee;
iii) In case of disagreement on the part of the authorities of that
Member State and in the event of a negative opinion of the Commission
European and the European Systemic Risk Committee, the Bank of
Portugal may refer the matter to the Banking Authority
European and apply for your assistance pursuant to Rule 19.
of Regulation (EU) No 1093/2010 of the European Parliament
and of the Council, of November 24, 2010;
iv) Suspending the decision to establish the reservation for the said
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positions at risk until the European Banking Authority
decide.
Article 138-W
Authorisation procedure relating to the reservation for systemic risk
1-Without prejudice to the provisions of paragraphs 4 and 5 of the preceding Article, if the Bank of
Portugal determine a percentage of reserve for systemic risk
greater than 3%, must notify the European Commission of that fact, the Committee
European Union of Systemic Risk, the European Banking Authority, the
competent and designated authorities of the Member States concerned and
the supervisory authorities of the interested third countries, in the latter
case if the reservation applies to the positions at risk located in these countries.
2-In the notification the Bank of Portugal complies with the provisions of paragraph 2 of the article
138 .º-V.
3-The Bank of Portugal implements the percentage of reserve for risk
systemic two months after the notification provided for in paragraph 1, save if the
European Commission does not address or do not allow it to finesse that deadline.
4-The procedures set out in the preceding paragraphs are applicable to
of January 1, 2015, whenever the Bank of Portugal determines a
percentage of reservation for systemic risk greater than 5%, applicable to
positions at risk located in Portugal, and may also apply to
positions at risk in third countries.
Article 138-X
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G-SII and O-SII reserve and reserve requirements competition for systemic risk
1-It shall apply to the highest own funds reserve in the following cases:
a) If a group, on a consolidated basis, is simultaneously subject to
a reservation of G-SII, to a reservation of O-SII and to a reservation for
systemic risk in the terms of this section;
b) If a credit institution or a group is subject, on the basis of
individual or subconsolidated, concurrently to a reservation of O-
SII in the terms of the previous section and a reservation for systemic risk
pursuant to this section.
2-Without prejudice to the provisions of Article 138 (2) and in the preceding paragraph,
if the reservation for systemic risk is applied only to all positions in
risk situated in Portugal, to cope with macroprudential risk
national, the reservation for systemic risk is cumulative with the reservation of G-SII
or O-SII applied in the terms of the previous section.
3-Should the provisions of Article 138 (138) be applied and in paragraphs 1 and 2 and a
credit institution belong to a group identified as G-SII or the
a group or subgroup identified as O-SII, such shall not be able to imply
that such a credit institution is, on an individual basis, subject to a
combined requirement of own fund reserves lower than the sum of the
booking of conservation, the contracyclical reserve and the highest reservation
between the reservation of O-SII and the reservation for systemic risk applicable to that
entity on an individual basis.
4-Should the provisions of the preceding paragraph and a credit institution apply
belong to a group identified as G-SII or to a group or subgroup
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identified as O-SII, this may not imply that such an institution is,
on individual basis, subject to a combined requirement of fund reserves
own lower than the sum of the conservation reserve, the contracyclical reserve
and to the sum of the O-SII reserve and the reservation for systemic risk applicable to
this entity on an individual basis.
Article 138-Y
Disclosure of the systemic risk reserve
The Bank of Portugal releases the reservation for systemic risk at its site of the
Internet, including the following information:
a) The percentage of the reservation for systemic risk;
b) The credit institutions to which the reservation for risk is applicable
systemic;
c) The justification for booking for systemic risk, save if the same
puser at risk the stability of the financial system;
d) The date from which it is applicable to the credit institutions the reservation
for systemic risk;
e) The countries where they are situated at risk recognized positions in the
reservation for systemic risk.
Article 138-Z
Recognition of the percentage of a reservation for systemic risk
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1-The Bank of Portugal may recognize the percentage of a reservation to
systemic risk determined by another Member State of the European Union,
taking into account the information presented by the same in the respect
notification, and determine the application of that percentage to the institutions of
credit in relation to the positions at risk located in that Member State.
2-Should the recognition be made in the terms of the previous number, the
Bank of Portugal notifies the European Commission, the European Committee of the
Systemic Risk, the European Banking Authority and the Member State of the
European Union which has determined the said percentage for the
reservation for systemic risk.
3-The Bank of Portugal may request the European Systemic Risk Committee
which issue a recommendation, addressed to one or more Member States of the
European Union, for the same to recognise the percentage of the reserve
for systemic risk determined in the terms of this section.
Article 138-AA
Restrictions on distributions
1-Credit institutions that meet the combined requirement of reservation
of own funds may not proceed to distributions related to
key own funds of level 1 that lead to a decrease
of these your own funds to a level where the combined requirement
of reservation cease to be fulfilled.
2-Credit institutions that do not meet the combined requirement of
reserve of own funds calculate the maximum distributable amount in the
terms of Article 138-AC and communicate that value to the Bank of Portugal.
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3-Until they calculate the maximum distributable amount, the credit institutions
covered by the preceding paragraph shall not carry out any of the following
acts:
a) Distributions related to main own funds of level 1;
b) Constitution of obligation to pay variable remuneration or
of discretionary pension benefits or payment of
variable remuneration, if the obligation to pay has been
assumed at a time when the credit institution did not comply
the combined requirement of reservation of own funds;
c) Payments for additional own fund instruments of
level 1.
4-Should a credit institution fail to comply with its combined requirement of
reserve of own funds, shall not proceed to distributions in excess of the
maximum distributable amount, calculated in accordance with Article 138-AC,
through any act referred to in the preceding paragraph.
5-The restrictions on distributions apply only to payments that
result in the reduction of the main own funds of level 1 or in a
reduction of profits, and when suspension or lack of payment does not
constitute a situation of default or ground of establishment
of a proceeding under the insolvency regime applicable to the institution of
credit.
6-For the purposes of paragraphs 1 and 3, the related distribution is deemed to be
with main own funds of level 1, namely, the following
acts:
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a) The payment of cash dividends;
b) The allocation of variable remuneration in the form of total shares or
partially released or other instruments of own funds to
which refers to ( a ) of Article 26 (1) of the Regulation (EU)
No. 575/2013, of the European Parliament and of the Council, of June 26
2013;
c) The acquisition or repurchase by a stock credit institution
own or other own fund instruments to which if
refers to point a ) of Article 26 (1) of the Regulation;
d) The reimbursement of amounts paid related to the instruments
of own funds referred to in point (s) a ) of Article 26 (1)
of the Regulation;
e) The distribution of elements to which the points are referred b ) a and ) of paragraph 1
of Article 26 of the Regulation.
Article 138-AB
Calculation of the maximum distributable amount
1-The calculation by the credit institutions of the maximum distributable amount is
effectuated by multiplying the sum calculated in the terms of the following number
by the factor determined in the terms of paragraph 3, owing that amount to be
reduced as a result of any of the actions referred to in paragraph 3 of the
article 138-AA.
2-The amount to be multiplied for the purposes of the preceding paragraph shall be constituted
by the following elements:
a) Interim profits not included in the main own funds of
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level 1 in accordance with Article 26 (2) of the Regulation (EU)
No. 575/2013, of the European Parliament and of the Council, of June 26
of 2013, which have been obtained since the last deliberation on
distribution of profits or any of the acts provided for in paragraph 3 of the
article 138-AA;
b) The year-end profits of the financial year not included in the own funds
key level 1 pursuant to Article 26 (2) of the
Regulation (EU) No 575/2013, of the European Parliament and of the
Council, of June 26, 2013, which have been obtained since the
last deliberation on distribution of profits or of any of the
acts provided for in Article 138 (3) of the Article-AA;
c) Excluding the amounts that could be paid for tax title
if the elements referred to in the previous points were not
distributed.
3-The factor referred to in paragraph 1 is determined by considering the quartile of the requirement
combined reserve of own funds in which the funds are located
top level 1 own held by the credit institution no
used to comply with the own funds requirement provided for in the c )
of Article 92 (1) of the Regulation (EU) No 575/2013 of the Parliament
European and of the Council of June 26, 2013 as a percentage of the
total amount of the positions at risk, in the following terms:
a) The factor is 0 situating in the first, and lower, quartile of the
combined requirement of reservation of own funds;
b) The factor is 0.2 situating in the second quartile of the requirement
combined reserve of own funds;
c) The factor is 0.4 situating in the third quartile of the requirement
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combined reserve of own funds;
d) The factor is 0.6 by situating in the room, and higher, quartile of the
combined requirement of reservation of own funds.
4-The lower and upper bounds of each quartile of the booking requirement are
calculated as follows:
a) Estimated * 1 to 4
n
Combined requirement of quartile Q lower limit reserves Despite the
b) * 4
n
Combined requirement of reserves upper limit of quartile Q From
nQ indicates the number of the quartile concerned.
Article 138-AC
Communication to the Bank of Portugal of distribution with restrictions
1-Credit institutions that do not meet the combined requirement of
reserve of own funds should report to the Bank of Portugal to
intention to distribute any of its distributable profits or to effector
any act referred to in Article 138 (3)-AA, in conjunction with the
following information:
a) The amount of capital held by the credit institution, subdivided
in the following way:
i) Main own funds of level 1;
ii) Additional own funds of level 1;
iii) Own funds of level 2;
b) The amount of your interim and end-of-exercise profits;
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c) The maximum distributable amount;
d) The amount of the distributable profits that it intends to affect to:
i) Dividend payments;
ii) Acquisition of own shares;
iii) Payments for additional own fund instruments of
level 1;
iv) Payment of variable remuneration or discretionary benefits
of pension, either by the creation of new payment obligations, or
by force of payment obligations created at a time when
the credit institution did not meet its combined requirements
of reserve of own funds.
2-Credit institutions maintain procedures that guarantee the calculation
strict of the amount of the distributable profits and the maximum amount
deliverable, ensuring equally the demonstration of that rigour on request
of the Bank of Portugal.
Article 138-AD
Own fund conservation plan
1-A credit institution that does not comply with the combined requirement of reserves
presents a fund conservation plan of its own to the Bank of
Portugal within five working days from the date on which you check the
default of that requirement.
2-The Bank of Portugal may extend the period referred to in the preceding paragraph to
a maximum of 10 working days considering the specific situation of the
institution of credit and depending on the scale and complexity of its
activities.
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3-The conservation plan of the own funds includes the following elements
informations:
a) Estimates of revenue and expenditure and a predictive balance sheet;
b) Measures to increase the institution's own funds ratios of
credit;
c) A timeframe for the increase of own funds,
with the aim of fully fulfilling the combined requirement of
reservations;
d) Other information that the Bank of Portugal considers necessary
to effect the assessment required by the following number.
4-The Bank of Portugal assesses the own fund conservation plan and
approves it if it considers that its execution allows, with a probability
reasonable, maintain or obtain sufficient own funds for the institution of
credit meet the combined requirement for reservations within a suitable time frame.
5-Should the Bank of Portugal not approve the plan for the conservation of funds
own, it shall require, alternatively or cumulatively, the following measures:
a) Increase of own funds from the credit institution to levels and
second a determined timetable;
b) Imposition of restrictions on the strictest distribution than those provided for
by the articles in this section, within the scope of the powers provided for in the article
116 .ºC-C.
Article 174-A
Regime of financial companies
1-Title II shall apply, with the necessary adaptations, to societies
financial with registered office in Portugal with the exception of point b ) and of the last part
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of the paragraph d ) of Article 14 (1), Article 16 (3) of Article 16 (3)
22. and of Article 23 (2).
2-[ Revoked ] .
Article 197-The
Reserves of own funds
The Bank of Portugal may determine, by regulation, the terms in which
subject to financial companies to the requirements of Title VII-A.
Article 200-The
Disobedience
1-Who refuses to abide by the legitimate orders or warrants of the Bank of
Portugal, emanating within the framework of their duties, or creating, by any
shape, obstacles to its execution incur the intended penalty for the crime of
qualified disobedience, if the Bank of Portugal or employee have
made the warning of this comination.
2-In the same penalty incurs who does not comply, hinder or defraud the
implementation of the ancillary sanctions or precautionary measures implemented in
process of counterordinance.
Article 214-The
Secret of justice
1-The process of counterordinance finds itself subject to secrecy of justice until
that administrative decision is delivered.
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2-A from the time you are notified to exercise your right to
defense, the defendants can:
a) Attend to the procedural acts that take place and to tell you
respect;
b) Consult the autos and obtain copies, extracts and certificates of any
parts of them.
3-Are applicable to the process of counterordinance, with due adaptations,
the exceptions provided for in the Code of Criminal Procedure for the regime of
secret of justice.
Article 219-The
Imputation of infractions and defence
1-Reunited sufficient evidence of the verification of the counterordinance and of whom
it was its agents, the accused and, when it exists, their defender, are
notified to, wanting, to present written defence and offer means
of proof, being, for the purpose, fixed by the Bank of Portugal a deadline
between 10 and 30 working days.
2-The procedural act that impugned to the accused the practice of a counterordinance
indicates, obligatorily, the offender, the facts that are charged to him, the
respects circumstances of time and place, as well as the law prohibiting them
and pune.
3-The defendants cannot indicate more than three witnesses for each
infraction, nor more than 12 in total, owing yet to discriminate against those that only
should testify about their economic situation and previous conduct and
subsequent to the facts, which they may not exceed the number of two.
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4-The limits provided for in the preceding paragraph may be exceeded, by
application, duly substantiated, of the accused, provided that such
appears essential to the discovery of the truth, specifically due to the
excecional complexity of the process.
5-The Bank of Portugal must communicate to the accused or to its defender,
when there is, additional representations of proof that, by their initiative,
perform after the submission of the defence, conferring deadline for which, wanting,
speak out on those representations.
Article 227-C
Communication of sanctions
The Bank of Portugal communicates to the European Banking Authority the sanctions
applied by the practice of the counterordinations provided for in points a ), b ), r ) and cc ) a
ll ) of Article 211 and by the violation of the rules of Regulation (EU)
n 575/2013, of the European Parliament and of the Council of June 26, the
situation and the outcome of the resources of the decisions that apply them.
Article 228-The
Effect of the resource
The appeal of rulings of decisions rendered by the Bank of Portugal only
has a suspensive effect if the appellant is warranted, in the 20-day praxo, in the
value of half of the fine imposed, unless shown to be shown, in an equal term, that
may not provide it, in whole or in part, by insufficiency of means. "
Article 5.
Amendment to the systematic organization of the General Regime of Credit Institutions and
Financial Societies
1-The following epitographs of the General Regime of Credit Institutions are amended and
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Financial Societies, approved by the Decree-Law No. 298/92 of December 31:
a) The epiggrafe of Chapter III of Title II passes the following essay: " Suitability
of the members of the administrative and supervisory bodies and of the holders of functions
essential in credit institutions ";
b) The epiggrafe of section I of Chapter II of Title IV goes on to have the following essay:
"Freedom of establishment in Portugal";
c) The epiggrafe of section II of Chapter II of Title IV goes on to have the following essay:
"Third countries".
2-Are deferred to Title VII of the General Regime of Credit Institutions and Societies
Financial, approved by the Decree-Law No. 298/92 of December 31, the following
chapters:
a) Chapter II-A, with the epitome "Government", which comprises Articles 115-A to
115.-I;
b) Chapter II-B, with the epiggraft "Internal Capital", which comprises Article 115-
J;
c) The II-C chapter, with the epitographer "Risks", which comprises Articles 115-K to
115.-W.
3-The VII-A Title is added to the General Regime of Credit Institutions and Societies
Financial, approved by the Decree-Law No. 298/92 of December 31, with the epitetype
"Own Funds Reserves", which comprises the following sections:
a) Section I, with the epitome "General provisions", comprising Articles 138-A
at 138 ºC;
b) Section II, with the epistle "Conservation reserve", understanding the article
138.-D;
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c) Section III, with the epistle "Specific contracyclical reservation of institutions",
understanding articles 138--E at 138 ºM;
d) Section IV, with the epitomic "Reserves for institutions of systemic importance",
understanding Articles 138-N to 138 º-T;
e) Section V, with the epistle "" Booking for systemic risk ", understanding the
articles 138-U to 138 ºAA;
f) Section VI, with the epitome "Fund conservation measures of its own",
understanding articles 138-AA to 138.-AD.
Article 6.
Amendment to the Securities Code
Article 363 of the Securities Code, approved by the Decree-Law No. 486/99,
of November 13, passes to have the following essay:
" Article 363.
[...]
1-[...].
2-A The prudential supervision is guided by the following principles:
a) [...];
b) [...];
c) Control of the suitability of holders of the managerial bodies, of the
people who effectively drive the activity and the holders of
qualified stakes, according to the criteria defined in the
article 30-D of the General Regime of Credit Institutions and the
Financial Societies, with due adaptations;
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d) Control of the remaining requirements for those of the holders of organs of
management and those of the people who effectively drive the activity,
specifically the professional qualification and availability, which
are required in accordance with the respect of supplementary legislation.
3-[...].
4-[...]. "
Article 7.
Amendment to Law No. 25/2008 of June 5
Articles 54 and 55 of Law No 25/2008 of June 5, amended by the Decree-Law
n ° 317/2009 of October 30 by the Law No. 46/2011 of June 24 and by the
Decrees-Laws 242/2012, of November 7, and 18/2013, of February 6, go on
the following essay:
" Article 54.
[...]
The counterordinations provided for in the preceding article are punishable in the following
terms:
a) When the infraction is practiced in the framework of the activity of a
credit institution or investment company:
i) With fine of € 50000 a € 5000000, if the agent is a person
collective;
ii) With fine of € 25000 a € 5000000, if the agent is a person
singular;
b) When the infraction is practiced in the scope of the activity of another
financial entity:
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i) With fine of € 25000 a € 2500000, if the agent is a person
collective;
ii) With fine of € 12500 a € 1250000, if the agent is a person
singular;
c) When the infraction is practiced in the framework of the activity of a
non-financial entity, with the exception of the lawyers and solicitors:
i) With fine of € 5000 a € 500000, if the agent is a person
collective;
ii) With fine of € 2500 a € 250000, if the agent is a person
singular.
Article 55.
[...]
1-Contract with the fines, they can be applied to the responsible for
any of the counterordinations provided for in Article 53 the following sanctions
ancillary, depending on the seriousness of the infraction and the fault of the agent:
a) [ ... ];
b) [ ... ];
c) Publication of the definitive or transitioned decision on trial.
2-A publication as referred to in point c ) of the previous number is effected, in the
full or by excerpt, at the expense of the offender, in a national, regional newspaper
or location, depending on what, in the concrete case, appears more appropriate. "
Article 8.
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Addition to Law No. 25/2008 of June 5
They are deferred to Law No. 25/2008 of June 5, as amended by Decree-Law No. 317/2009, of
October 30, by Law No. 46/2011, of June 24, and by the Decrees-Laws n. 242/2012,
of November 7, and 18/2013, of February 6, Articles 54-A, 55.-A, 55.-B and 57.
with the following essay:
" Article 54.
Aggravation of the limits of fines
1-Where the amount corresponding to double the economic benefit
resulting from the infractions provided for in Article 53 is determinable and superior
to the maximum limit of the applicable fine, this limit is high for that
amount.
2-In the specific case of the collective persons who are credit institutions
or investment firms, the maximum limits of the fines referred to in the
subparagraph i ) of the paragraph a ) and in the sub-paragraph i ) of the paragraph b ) of the previous article are
high for the amount corresponding to 10% of the total volume of
net annual business of the economic year prior to the date of the decision
condensation, whenever this amount is determinable and superior
to those limits.
3-For the effects of the previous number:
a) The net annual turnover of the previous economic year
must include gross income consisting of interest and revenue
equates, income from stocks and others
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variable or fixed income instruments and the commissions received
pursuant to Article 316 of the Regulation (EU) No 575/2013, of the
European Parliament and of the Council of June 26, 2013.
b) For the collective persons who are subject to a framework
accounting for different than what is found in the article
316. of the same Regulation, the calculation of the annual turnover
net is based on the data that best reflect the provisions of that
article;
c) Where the financial entity is a subsidiary, the gross income
considered is the resulting from the consolidated account of the parent company in the
previous economic exercise.
4-When they are cause collective persons who are financial entities and
the maximum limits of the fines provided for in the previous article are,
simultaneously, susceptible to aggravation in accordance with paragraphs 1 and 2,
prevails as the upper limit the highest amount.
Article 55-The
Graduation of the penalty
1-A The determination of the measure of the fine and the ancillary sanctions is done in
function of the concrete ilicitude of the fact, the fault of the agent and the requirements of
prevention, while also taking into account the individual or collective nature of the
agent.
2-In the determination of the concrete ilicitude of the fact, of the fault of the agent and of the
requirements for prevention, meet, among others, the following circumstances:
a) Duration of the infraction;
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b) Degree of participation of the accused in the infringement of the infraction;
c) Obtaining a benefit, or intention to obtain it, for you or for
listen;
d) Existence of damage caused to the third party by the infraction and its
importance when this is determinable;
e) Potential systemic consequences of the infraction;
f) Occasional or repeated character of the infraction;
g) Intensity of the dolo or negligence;
h) If the counterordinance consists of the omission of the practice of an act
due, the time elapsed from the date on which the act was due to have been
practiced;
i) Level of responsibilities of the natural person, scope of their
functions and respect sphere of action in the collective person concerned;
j) Special duty of the natural person not to commit the infraction.
3-In the determination of the applicable sanction has also been taken into account:
a) The economic situation of the accused;
b) The previous conduct of the accused;
c) The existence of concealment acts aimed at hindering discovery
of the infraction;
d) The existence of acts of the agent intended for, by his or her initiative, to repair
the damage or obviate to the dangers caused by the infraction;
e) The level of collaboration of the accused with the administrative authority
competent.
4-A fine shall exceed the economic benefit obtained by the accused or
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person who is your purpose to benefit, to the extent that that is
determinable.
Article 55-B
Disclosure of the decision
1-In the case of infractions practiced in the framework of the activity of institutions of
credit or investment firms, the term of the challenge has elapsed
judicial, the sentencing decision is disseminated on the website of the
competent administrative authority, in full or by excerpt that includes,
at least, the identity of the convicted natural or collective person and
information about the type and nature of the infraction, even if it was
required for its judicial challenge, being, in this case, made express
mention of this fact.
2-A Judicial decision confirming, change or revoke the sentencing decision of the
competent administrative authority or the court of 1 th instance is
compulsorily disclosed in the terms of the previous number.
3-A The disclosure takes place on regime of anonymity in case:
a) The penalty is imposed on a natural person and, following a
prior mandatory assessment, if it demonstrates that the publication of data
personal would be disproportionate in the face of the seriousness of the infraction;
b) The publication could call into question the stability of the markets
financial or commit an ongoing criminal investigation;
c) The publication can, as much as it can be determined, cause damage
disproportionate to the institutions or natural persons concerned.
4-Case provided that the circumstances provided for in the preceding paragraph may
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cease within a reasonable time, the publication of the identity of the natural person or
doomed collective may be postponed during that period.
5-Information disclosed in the terms of the previous figures remains
available on the website of the competent administrative authority
for five years, counted from the time when the decision
condensation becomes definitive or transite on trial, and cannot be
indexed to search engines on the Internet.
Article 57-The
Communication of sanctions
In the case of sanctions applied in the context of the activity of an institution of
credit or investment company, the competent administrative authority
communicates to the European Banking Authority the sanctions applied, as well as the
situation and the outcome of the resources of the decisions that apply them. "
Article 9.
Amendment to Law No. 28/2009 of June 19
Article 2 of Law No 28/2009 of June 19, passes the following essay:
" Article 2.
[...]
1-[...].
2-[...].
3-[...].
4-Credit institutions and financial companies become subject to the
standards relating to the remuneration policy set out in the General Regime
of the Credit Institutions and Financial Societies, approved by the
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Decree-Law No. 298/92, of December 31. "
Article 10.
Amendment to Decree-Law No 260/94 of October 22
Articles 1 and 4 of the Decree-Law No. 260/94 of October 22 shall have the following
essay:
" Article 1.
[...]
Investment societies are financial corporations that have per object
exclusive to the realization of financial operations and the provision of services
related fields defined in this diploma.
Article 4.
[...]
[...]:
a) Issuance of obligations of any kind, under the conditions laid down
in the law, raising the limits set in the Code of Societies
Commercials up to the quadruple of their own capitals, as well as
commercial paper;
b) [...];
c) Funding provided by credit institutions,
particularly in the context of the interbank market, according to
legislation applicable to this market, as well as by institutions
financial;
d) [...]. "
Article 11.
Amendment to Decree-Law No 72/95 of April 15
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Articles 1 and 5 of the Decree-Law No. 72/95 of April 15, amended by the Decrees-Laws
n. paragraphs 285/2001, of November 3, and 186/2002, of August 21, go on to have the following
essay:
" Article 1.
[...]
1-Financial leasing companies are financial companies that have for
main object the exercise of financial leasing activity.
2-[...].
Article 5.
[...]
[...]:
a) Issuance of obligations of any kind, under the conditions laid down
in the law, raising the limits set in the Code of Societies
Commercials up to the quadruple of their own capitals, as well as
commercial paper;
b) Funding provided by credit institutions,
particularly in the context of the interbank market, if the
regulation applicable to this market not to prohibit, as well as
by financial institutions;
c) [...]. "
Article 12.
Amendment to Decree-Law No 171/95 of July 19
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Articles 2 to 5 of the Decree-Law No. 171/95 of July 19, amended by the Decree-Law
n. 186/2002 of August 21, they shall pass the following essay:
" Article 2.
[...]
1-[...].
2-Understand in the activity of factoring the complementary actions of
collaboration between the entities enabled to exercise the activity of factoring
in the terms of the General Regime of Credit Institutions and Societies
Financial, approved by the Decree-Law No. 298/92 of December 31 and the
your customers, specifically of study of credit and support risks
legal, commercial and accounting for the good management of the transacted credits.
Article 3.
[...]
[...]:
a) " Factor " or "transferee", the entities empowered to exercise the activity
from factoring in the terms of the General Regime of Credit Institutions and
Financial Societies;
b) [...];
c) [...].
Article 4.
[...]
1-[...].
2-The assignments " society of factoring "," society of financial cession " or
any others that swirl this activity can only be used by the
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entities enabled to exercise the activity of factoring in the terms of the Regime
General of Credit Institutions and Financial Societies.
Article 5.
[...]
[...]:
a) Issuance of obligations of any kind, under the conditions laid down
in the law, raising the limits set in the Code of Societies
Commercials up to the quadruple of their own capitals, as well as
commercial paper;
b) Funding provided by credit institutions,
particularly in the context of the interbank market, if the
regulation applicable to this market not to prohibit, as well as
by international financial institutions;
c) [...]. "
Article 13.
Amendment to Decree-Law No 211/98 of July 16
Articles 1 and 8 of the Decree-Law No. 211/98 of July 16, amended by the Decrees-Laws
n. paragraphs 19/2001, of January 30, and 309-A/2007 of September 7, go on to have the following
essay:
" Article 1.
[...]
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Mutual guarantee societies are financial corporations that have per object
exclusive to carry out financial operations and the provision of the services
related listed in this diploma for the benefit of micro, small and medium
companies, or other collective persons, whatever their legal nature,
specifically associations and complementary groupings of companies,
as well as natural persons, in particular students and researchers,
Governed by the provisions of this diploma and the applicable provisions of the
General Regime of Credit Institutions and Financial Societies, approved
by Decree-Law No. 298/92 of December 31.
Article 8.
[...]
Mutual guarantee societies can only finance their activity with
own funds and through the following resources:
a) Funding provided by credit institutions, or by
financial institutions, national or foreign;
b) [...];
c) Issuance of obligations of any kind, under the conditions laid down
in the law, raising the limits set in the Code of Societies
Commercials up to the quadruple of their own capitals. "
Article 14.
Amendment to Decree-Law No 357-B/2007 of October 31
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Article 6 of the Decree-Law No 357-B/2007 of October 31, amended by the Decree-Law
n ° 52/2010 of June 26, it shall have the following essay:
" Article 6.
1-[...].
2-On the appreciation, by the CMVM, of the suitability and qualification requirements
professional are applicable, with due adaptations, Articles 30-D and
31. of the General Regime of Credit Institutions and Financial Societies,
approved by Decree-Law No. 298/92 of December 31.
3-[...].
4-[...]. "
Article 15.
Amendment to Decree-Law No 357-C/2007 of October 31
Article 16 of the Decree-Law No 357-C/2007 of October 31, amended by the
Decrees-Laws No 52/2010 of June 26, 18/2013, of February 6, and 40/2014, of 18
of March, goes on to have the following essay:
" Article 16.
1-[...].
2-On the appreciation of the requirements of suitability, professional qualification and
availability are applicable, with due adaptations, Articles 30-D,
31. and paragraphs 1, 2 and 11 of Article 33 of the General Regime of Institutions of
Credit and Financial Societies, approved by the Decree-Law No. 298/92, of
December 31.
3-[...].
4-[...].
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5-[...]. "
Article 16.
Amendment to Decree-Law No 317/2009 of October 30
Article 7 of the Decree-Law No. 317/2009 of October 30, amended by the Decree-Law
n ° 242/2012 of November 7, it shall have the following essay:
" Article 7.
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) The financial societies with registered office in Portugal whose object
understand the exercise of this activity, in accordance with the norms
applicable legal and regulatory;
e) [ Previous point (d) ];
f) [ Previous point (e) ];
g) [ Previous point f) ];
h) [ Previous point (g) ];
i) [ Previous point (h) ];
j) [ Previous point (i) ].
2-[...].
3-[...].
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4-[...].
5-[...]. "
Article 17.
Amendment to Decree-Law No 40/2014 of March 18
Article 9 of the Annex to Decree-Law No. 40/2014 of March 18, passes on the following
essay:
" Article 9.
Idoneity, professional qualification, independence and availability
1-On the appreciation of the requirements of suitability, professional qualification,
independence and availability of the holders of the administration bodies and
of the supervisory bodies of the central counterparties shall apply, with the
due adaptations, the articles 30-D, 31, 31.-A and n. paragraphs 1, 2 and 11 of the article
33. of the General Regime of Credit Institutions and Financial Societies,
approved by Decree-Law No. 298/92 of December 31.
2-[...].
3-For the purposes of this Article, the suitability shall be deemed to be ascertained,
professional qualification, independence and availability of the members of the
organs of administration and the supervisory bodies that are found to be
registered with the Bank of Portugal or the Insurance Institute of
Portugal, when such registration is subject to conditions of idoneity, the
less than overdue facts at the date of the said registration leads to
CMVM to pronounce to the contrary.
4-A CMVM communicates to the Bank of Portugal or to the Insurance Institute of
Portugal, depending on applicable, any decision in the sense of no
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verification of idoneity, professional qualification, independence and
availability of members of the governing bodies and bodies of
supervision that are found to be registered with these authorities of
supervision. "
Article 18.
Regulatory provision
1-The Bank of Portugal may subject, by regulation, financial companies to
what not applicable to Regulation (EU) No 575/2013, of the European Parliament and
of the Council, of June 26, 2013 to requirements in the matter of prudential supervision and
behaviouras, notably subjecting them to the provisions of that same
Regulation with the adjustments that understand relevant and, still, requirements in
matter of behavioral supervision.
2-Until the entry into force of the delegated act of the European Commission provided for in Article 460.
of Regulation (EU) No 575/2013, of the European Parliament and of the Council, of 26 of
June 2013, the Bank of Portugal may establish, by regulation, rules
specific in the matter of liquidity requirements of credit institutions and companies of
investment.
3-Until they are adopted at the level of the European Union minimum binding standards for
the stable financing requirements in accordance with Article 413 (3) and paragraph 3 of the
article 510 of Regulation (EU) No 575/2013, of the European Parliament and of the
Council, of June 26, 2013, the Bank of Portugal may establish, by
regulation, specific rules on stable financing requirements of the
credit institutions and investment firms.
4-In accordance with the provisions of Article 493 (3) of the Regulation (EU)
n 575/2013, of the European Parliament and of the Council of June 26, 2013, at para.
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matter of major risks, the Bank of Portugal may dispense, in whole or in part,
by regulation, credit institutions and investment firms of the
Application of Article 395 (1) to the positions at risk provided for in Article 400 (2),
both of that Regulation.
Article 19.
Exemptions
Depending on the changes made by this diploma in the General Regime of the
Credit Institutions and Financial Societies, approved by the Decree-Law No. 298/92, of
December 31, during a period of one year, the credit financial institutions that
wish to proceed to the amendment of your typology for credit financial society
benefit from a simplified procedure, from mere notification to the Bank of Portugal,
of the change in question.
Article 20.
Regime of economic boxes
1-Economic boxes whose asset is less than € 50000000 are not subject to the
Implementation of Regulation (EU) No 575/2013, of the European Parliament and of the Council,
of June 26, 2013, and the Bank of Portugal may, by regulation, subject the
same to the provisions of that Regulation with the adjustments it understands
relevant.
2-The Bank of Portugal may, in accordance with criteria of proportionality, determine the
Application of Title VII of the General Regime of Credit Institutions and Societies
Financial, approved by the Decree-Law No. 298/92 of December 31, with the essay
given by this diploma to the economic boxes referred to in the preceding paragraph.
3-The economic boxes referred to in paragraph 1 are not subject to the provisions of Title VII-A
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of the General Regime of Credit Institutions and Financial Societies, approved by the
Decree-Law No. 298/92 of December 31, with the wording given by this diploma.
Article 21.
Schemes applicable to financial companies
1-The financial companies referred to in subparagraphs i ) a v ) of the paragraph b ) of Article 6 (1)
of the General Regime of Credit Institutions and Financial Societies, approved by the
Decree-Law No. 298/92 of December 31, with the wording given by this diploma
remain subject to the standards of tax nature applicable to credit institutions and
become subject, in the same way as credit institutions, to all the provisions
legal and regulatory relating to credit operations for whose financial year they are
legally entitled and still to the provisions set out in the following legal diplomas:
a) Law No. 58/2012 of November 9;
b) Decree-Law No 349/98 of November 11;
c) Decree-Law No 279/2000 of November 10;
d) Decree-Law No. 158/2002 of July 2, amended by the Decree-Law
n. 125/2009 of May 22 and by the Laws No 57/2012 of November 9 and
44/2013, of July 3;
e) Decree-Law No 240/2006 of December 22;
f) Decree-Law No 51/2007 of March 7, amended by the Decrees-Laws
n. ºs 88/2008, May 29, 192/2009, of August 17, and 226/2012, of 18 of
October;
g) Decree-Law No 171/2008 of August 26;
h) Decree-Law No 133/2009 of June 2, amended by the Decrees-Laws
n. 72-A/2010, of June 18, and 42-A/2013, of March 28;
i) Decree-Law No 144/2009 of June 17;
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j) Decree-Law No 222/2009 of September 11;
k) Decree-Law No. 317/2009 of October 30, amended by the Decree-Law
n. 242/2012 of November 7;
l) Decree-Law No 3/2010 of January 5;
m) Decree-Law No. 227/2012 of October 25.
2-The Bank of Portugal can determine through regulation, according to
proportionality criteria, the application of the relevant provisions of the Regulation
(EU) No 575/2013, of the Parliament and of the Council of June 26, 2013, to the types of
financial companies that are not included in the scope of Article 4.º-A.
Article 22.
Remissions
The remissions carried out in other diplomas for specific articles of the General Regime of the
Credit Institutions and Financial Societies, approved by the Decree-Law No. 298/92, of
December 31 consider themselves to be made, with the necessary adaptations, for the provisions
correspondents or for the new applicable provisions of the said regime with the essay
given by this diploma.
Article 23.
Transitional provisions
1-Without prejudice to the provisions of paragraph 4, between January 1, 2016 and December 31, 2018
the requirements imposed under Articles 138-D and 138.-And the General Regime of the
Credit Institutions and Financial Societies, approved by the Decree-Law No. 298/92,
of December 31, with the wording given by this diploma shall be governed by the provisions of
in the n. paragraphs 2 a to 4.
2-For the period from January 1, 2016 to December 31, 2016:
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a) The conservation reserve is made up of main own funds of level 1
corresponding to 0.625% of the total amounts of the positions weighted by the
risk of the institution, calculated in accordance with Article 92 (3) of the Regulation
(EU) No 575/2013, of the Parliament and of the Council of June 26, 2013;
b) The specific contracyclical reserve of the institution may not be more than 0.625% of the
total amounts of the positions weighted by the risk of the institution, calculated
pursuant to the terms of the Article 92 (3) of the Regulation (EU)
n 575/2013, of Parliament and of the Council, of June 26, 2013.
3-For the period from January 1, 2017 to December 31, 2017:
a) The conservation reserve is made up of main own funds of level 1
corresponding to 1.25% of the total amounts of the positions weighted by the
risk of the institution, calculated in accordance with Article 92 (3) of the Regulation
(EU) No 575/2013, of the European Parliament and of the Council, of June 26 of
2013;
b) The specific contracyclical reserve of the institution may not be more than 1.25% of the
total amounts of the positions weighted by the risk of the institution, calculated
in accordance with Article 92 (3) of the Regulation (EU) No 575/2013, of the
European Parliament and of the Council of June 26, 2013.
4-For the period from January 1, 2018 to December 31, 2018:
a) The conservation reserve is made up of main own funds of level 1
corresponding to 1.875% of the total amounts of the positions weighted by the
risk of the institution, calculated in accordance with paragraph 3 (92) of the Regulation
(EU) No 575/2013, of the European Parliament and of the Council, of June 26 of
2013;
b) The specific contracyclical reserve of the institution may not be more than 1.875% of the
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total amounts of the positions weighted by the risk of the institution, calculated
in accordance with Article 92 (3) of the Regulation (EU) No 575/2013, of the
European Parliament and of the Council of June 26, 2013.
5-The requirement for a conservation plan and restrictions on distributions, to which
refer to Articles 138-AA to 138.-AD of the General Regime of Credit Institutions and
Financial Societies, approved by the Decree-Law No. 298/92 of December 31,
with essay given by the present diploma, is applicable during the transition period
understood between January 1, 2016 and December 31, 2018, if the institutions
do not satisfy the combined requirement of own fund reserves taking into account
the limits set in the n. paragraphs 2 a to 4.
6-The Bank of Portugal may impose a shorter transitional period than the
set out in paragraphs 1 a to 4 and require the application of the reserve and reserve
counter-cyclical as of the date of entry into force of this diploma, informing
from that fact to the European Commission, the European Systemic Risk Committee, the Authority
European Banking and, where applicable, the colleges of supervisory authorities.
7-If the Bank of Portugal imposes a shorter transition period for booking
contracyclical, under the provisions of the preceding paragraph, that period applies only
for the purpose of the calculation of the specific countercyclical reserve of the institutions authorized in
Portugal.
8-In case the provisions of paragraph 6 are applied, by analogy, in other Member States of the
European Union, the Bank of Portugal can apply such a shorter transition period,
notifying its decision to the European Commission, to the European Systemic Risk Committee,
to the European Banking Authority and, where applicable, to colleges of authorities of
supervision.
9-Compliance with the provisions of Article 2-It is required as of January 1, 2015,
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except the information set out in the points a ) a c ) of the same article concerning the
economic exercise of 2014, which must be disclosed by the credit institution or
investment company in the respect of the website on the Internet on the date of entry into force of the
present diploma.
Article 24.
Abrogation standard
They are revoked:
a) Article 1 (2), Article 2, paragraphs (2) and ) a j ) of Article 3, Article 5, the
(c) to (j) of Article 6 (1), Article 13, para. b ) and c ) of paragraph 2 of the
Article 14, paragraphs 2 and 4 a to 6 of Article 16, Article 23, para. 2, 3, 5 a to 7 and 9
of Article 69, paragraphs 1 a to 3 and 5 a to 7 of Article 70, Article 79 (3), the article
100, Article 118 (4), Article 130 (2), Article 132 (5), the
Article 174, Articles 175 to 179, 181 to 183, Article 197, paragraph 4 of the
article 199-Article 199 (1)-B, para. and ) of Article 199-C, the ( d ) from the
n Article 199 (2), Article 205 (4), paragraphs (4) c ) and d ) of paragraph 2 and (2)
b ) of paragraph 3, and Article 206 (5), paragraphs 5 and 6 of Article 219, paragraph 2 of the article
220. and Article 227 of the General Regime of Credit Institutions and Societies
Financial, approved by the Decree-Law No. 298/92 of December 31;
b) The Decree-Law No 166/95 of July 15;
c) The Decree-Law No 206/95 of August 14;
d) The Decree-Law No. 103/2007 of April 3, amended by the Decrees-Laws
n. paragraphs 45/2010, of May 6, and 88/2011, of July 20;
e) The Decree-Law No. 104/2007 of April 3, amended by the Decrees-Laws
n. ºs 45/2010, May 6, 140-A/2010, December 30, 88/2011, 20 of
July, and 18/2013, of February 6;
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f) Article 6 of the Decree-Law No. 88/2011 of July 20.
Article 25.
Republication
It is republished, in annex to the present diploma, which of it forms an integral part, the Regime
General of Credit Institutions and Financial Societies, approved by the Decree-Law
n. 298/92, of December 31, with the current essay.
Article 26.
Entry into force
1-Without prejudice to the provisions of the following paragraphs, this diploma shall enter into force 30
days after its publication.
2-The Title VII-A of the General Regime of Credit Institutions and Financial Societies,
approved by the Decree-Law No. 298/92 of December 31, with the wording given by the
this diploma, is applicable from January 1, 2016, except section V, which is
applicable from the entry into force of this diploma.
3-A internal policy of selection and assessment of the suitability of holders of essential functions
it is approved by the first general meeting to be held after the date of the entry into force of the
this diploma, being applicable from the date of your approval.
4-The provisions of paragraph 2 a to 6 of Article 115-F of the General Regime of Credit Institutions
and Financial Societies, approved by the Decree-Law No. 298/92 of December 31,
with the essay given by this diploma, is applicable to the remuneration granted by
performance or services provided since January 1, 2014, even though the same is
due under the terms of office initiated or contracts concluded prior to entry into
vigour of this decree-law.
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5-The provisions of Article 138-P of the General Regime of Credit Institutions and Societies
Financiers of the General Regime of Credit Institutions and Financial Societies,
approved by the Decree-Law No. 298/92 of December 31, with the wording given by the
this diploma, is applicable from January 1, 2016 on the following terms:
a) 25% of the reservation of G-SII, in 2016;
b) 50% of the reservation of G-SII, in 2017;
c) 75% of the reservation of G-SII, in 2018; and
d) 100% of the reservation of G-SII, in 2019.
6-Without prejudice to the application of the provisions relating to the suitability, qualification
professional and independence of the members of the administrative and supervisory bodies
to the members of these bodies in the renewals of mandates and in the new designations or
nominations taking place after the date of entry into force of this decree-law, the
provisions relating to the availability contained in Article 33 of the General Regime of the
Credit Institutions and Financial Societies, approved by the Decree-Law No. 298/92,
of December 31, with the essay given by this diploma, are applicable to the
mandates of the administrative and supervisory bodies in progress at the date of entry into
vigour of this decree-law, pursuant to Article 32 (1) and 4 a to 9 of the said
regime.
7-The necessary updates of the remuneration policies to be adopted by the institutions of
credit must be approved by the first general meeting to be held after the date of
entry into force of this diploma.
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ANNEX
(referred to in Article 25)
Republication of the General Regime of Credit Institutions and Societies
Financial, approved by the Decree-Law No. 298/92, of December 31